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1
Vilkova, T. Yu. "ACCESS TO JUSTICE IN CRIMINAL PROCEEDINGS: LEGAL STANCES OF THE EUROPEAN COURT OF HUMAN RIGHTS". Lex Russica, n.º 12 (4 de enero de 2020): 56–67. http://dx.doi.org/10.17803/1729-5920.2019.157.12.056-067.
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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.
2
Voyiakis, Emmanuel. "Access to Court v State Immunity". International and Comparative Law Quarterly 52, n.º 2 (abril de 2003): 297–332. http://dx.doi.org/10.1093/iclq/52.2.297.
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This comment discusses three recent judgments of the European Court of Human Rights in the cases of McElhinney v Ireland, Al-Adsani v UK, and Fogarty v UK. All three applications concerned the dismissal by the courts of the respondent States of claims against a third State on the ground of that State's immunity from suit. They thus raised important questions about the relation the European Convention on Human Rights (the Convention)—especially the right to a fair trial and access to court enshrined in Arcticle 6(1)—and the law of State immunity.
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Knol Radoja, Katarina. "IZUZEĆE OD JURISDIKCIJE U EUROPSKOM GRAĐANSKOM PROCESNOM PRAVU". Pravni vjesnik 38, n.º 2 (julio de 2022): 21–36. http://dx.doi.org/10.25234/pv/21767.
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The paper analyses the right to be exempt from jurisdiction (immunity) under customary international law and European civil procedural law following the interpretation of the Court of Justice of the European Union. The aim is to research the balance between this right and the right of access to the courts as its potentially restrictive factor in the case law of the Court of Justice of the European Union and to compare it with the case law of the European Court of Human Rights. In deciding the LG and Others v. Rina and Ente Registro Navale as the most important case in this regard, the Court of Justice of the European Union states that the national court before which the issue of exemption from jurisdiction arises, must be persuaded that there will be no violation of the right of access to the courts, if it accepts the immunity objection. In this way, the Court determined the limit of exemption from jurisdiction by allowing the waiver of jurisdiction for reasons of compliance with international legal obligations and noting the need to preserve fundamental rights. However, as to the terms of that limitation, the Court remained vague.
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Y. I., Sverba. "Some Approaches to Define the Concept of “Access to Justice”". Almanac of law: The role of legal doctrine in ensuring of human rights 11, n.º 11 (agosto de 2020): 208–13. http://dx.doi.org/10.33663/2524-017x-2020-11-37.
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The article is dedicated to the analysis of the concept of "access to justice". The national legislation, the case law of the Constitutional Court of Ukraine and the European Court of Human Rights, as well as academic papers have been analyzed by the author. The author concludes that there are at least two approaches to define the concept of "access to justice": broadside and restricted one. The latter is inherent in Ukraine, since the Constitution stipulates that justice in Ukraine is exercised by the courts exclusively. The case law of the European Court of Human Rights explored in this article demonstrates a broad interpretation of the right to a fair trial, as quasi-judicial authorities are often empowered to make decisions that directly affect a person's rights and obligations. Foreign researchers are more progressive in determining the concept of access to justice: the latter is considered as an intention to resolve person's legal problems, not limited with access to classical judicial protection. Even though the access to justice concept is not legally defined, it includes the core elements as legal awareness of person’s rights; lack of financial barriers to access to the court; the right to free legal aid guaranteed by the state; a fair and independent court; a reasonable time to settle a dispute, as well as the enforcement of the judgment. The state could ensure the effective access to justice only if all of the said elements are implemented. At the same time, the states have both positive (to provide the right to free legal aid) and negative obligations (not to interfere with court activities, etc.). Keywords: access to justice, justice, right to a fair trial, rule
5
Sanger, Andrew. "STATE IMMUNITY AND THE RIGHT OF ACCESS TO A COURT UNDER THE EU CHARTER OF FUNDAMENTAL RIGHTS". International and Comparative Law Quarterly 65, n.º 1 (enero de 2016): 213–28. http://dx.doi.org/10.1017/s0020589315000524.
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AbstractThis article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal’s application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court’s statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett’s reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is erroneousness: the right of access to a court is always engaged in immunity cases because immunity does not deprive the courts of jurisdiction ab initio. The article also argues that contrary to the Court’s reasoning on Article 47 of the EU Charter, the right of access to a court does not need to have horizontal effect in a private between private parties: the right is always enforced against the forum State; it has indirect, not horizontal, effect.
6
Herych, A. "The Access to Administrative Justice during Wartime". Analytical and Comparative Jurisprudence, n.º 5 (30 de diciembre de 2022): 227–32. http://dx.doi.org/10.24144/2788-6018.2022.05.42.
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The article is devoted to the study of the issue of access to justice during the war, as it stipulated by the other conditions for the implementation of justice in the state. Active hostilities are taking place in most regions of Ukraine, which makes it impossible to administer justice in administrative courts. However, the Supreme Council of Justice has resolved this issue properly, so the access to justice in Ukraine is currently available and the opportunity to defend one's violated right in accordance with the Constitution of Ukraine is guaranteed. Courts are obliged to implement justice even under state of war, and their powers are not suspended. In order to ensure access to the court, the Supreme Court changed the territorial jurisdiction of about one hundred courts of Ukraine. In connection with the introduction of state of war in Ukraine, all procedural terms are renewed, case consideration is not stopped, and excessive formalism by the judges is not allowed.
An attention is drawn to the fact that access to court is an integral element of the right to a fair trial, but such access must be effective. In the conditions of war, the Council of Judges of Ukraine recommends postponing the consideration of cases. Attention is focused on the fact that remote justice ensures better safety of participants in the legal process. According to the author, it is necessary to take care of the safety of court employees and give them the opportunity to work remotely. It is noted that electronic proceedings ensure full access to justice. The demand for remote justice is growing, access to the court is improving, as it is possible to participate in the court session even outside the court.
The article analyzes the decision of the HUDOC and based on this, the author comes to the conclusion that the HUDOC considers financial costs as an obstacle to access to justice. Access to court is effective only if a person has a real opportunity to challenge wrongful actions in practice. According to the HUDOC, the construction of Art. 6 of the Convention is effective only if the case will be considered in court. The HUDOC highlights the right to access the court as a component of the right to a fair trial. Attention is drawn to the fact that the courts must take all measures to restore the violated right.
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Dahlberg, Maija y Daniel Wyatt. "Is there a public interest in knowing what is going on in society? A comparative study of the European Courts". Maastricht Journal of European and Comparative Law 26, n.º 5 (11 de septiembre de 2019): 691–712. http://dx.doi.org/10.1177/1023263x19865839.
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Both of the European courts, namely the European Court of Human Rights and the Court of Justice of the European Union, have well-established case law on the public’s right of access to official documents. The core of the right is the same in both of the courts’ jurisdictions but the interpretations concerning the breadth of the right are very different. One fundamental reason for the public’s right of access to information being understood differently by each of these courts is their divergent approaches to the assessment of the public interest associated with an individual’s request for information. While the ECtHR openly evaluates the public interest or interests involved in the disclosure of an official document, the CJEU gives this factor little or no weight. In this article, our main argument is that CJEU should follow the ECtHR’s interpretation of the public interest in order to give the right of access to documents the same scope in both legal regimes and, in doing so, fulfil the requirements stemming from Article 52(3) of the Charter of Fundamental Rights of the European Union.
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Terkovich, Jessica y Aryeh Frank. "Constitutionalizing Access". Journal of Civic Information 3, n.º 1 (30 de junio de 2021): 1–17. http://dx.doi.org/10.32473/joci.v3i1.129179.
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State constitutions receive relatively little academic attention, yet they are the source of significant substantive rights—and, when compared to the U.S. Constitution, they are relatively easily amended to comport with contemporary needs and values. Unlike the constitutions of dozens of other nations, the U.S. Constitution contains no explicit recognition of a right to information from the government, and the Supreme Court has declined to infer that such a right exists, apart from narrow exceptions. Conversely, seven states expressly memorialize the public’s right of access to government meetings and records in their constitutions. In this paper, the authors examine case law applying the constitutional right of access, concluding that the right is somewhat underutilized and rarely seems to produce an outcome clearly different from what a litigant could expect relying on state statutory rights alone.
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Antonino de la Cámara, Mar. "Cultura (derecho de acceso a la) = Culture (the Right to access to)". EUNOMÍA. Revista en Cultura de la Legalidad, n.º 16 (29 de marzo de 2019): 264. http://dx.doi.org/10.20318/eunomia.2019.4705.
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Resumen: El doble objetivo de esta voz es: a) concretar el contenido jurídico del derecho de acceso a la cultura, para lo que se procederá a b) analizar la jurisprudencia más paradigmática del Tribunal Europeo de Derechos Humanos en relación con la protección de expresiones culturales. No se trata, pues, de una aproximación teórica a lo que sea cultura, sino de precisar, en la medida de lo posible, el alcance de un derecho poco estudiado dentro del marco geográfico europeo.Palabras clave: Derecho de Acceso a la Cultura, Derecho a la Cultura, Derecho a la Libertad de Expresión, Libertad de creación artística, Tribunal Europeo de Derechos Humanos, Copyright Abstract: This voice has been written with a double objective, namely a) to concretize the legal content of the right of access to culture, so we will proceed b) to analyze some of the most paradigmatic case-law of the European Court of Human Rights in relation to the protection of the culture. Therefore, it is not a theoretical approach to what is culture, but to specify the scope of a right so unstudied within the European geographical framework.Keywords: Right of Access to Culture, Right to Culture, Right to Freedom of Expression, Right to artistic freedom, European Court of Human Rights, Copyright.
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Koverznev, V. O. "INTERNATIONAL STANDARDS FOR ENSURING THE RIGHT OF ACCESS TO COURT FOR PARTICIPANTS OF ECONOMIC RELATIONS". Economics and Law, n.º 3 (22 de octubre de 2020): 34–42. http://dx.doi.org/10.15407/econlaw.2020.03.034.
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Transformation and sustainable development of modern countries is not possible without providing all participants in economic relations with equal access to justice, which should be based on respect for fundamental rights, the Rule of Law, transparent courts and the effective administration of justice, guaranteeing public access to information about activity of commercial courts. The term "access to court" is a complex legal category based on several basic criteria, the simultaneous provision of which guarantees the actual observance of a person's right to access to justice, in particular: 1) financial, which provides for the obligation of the state to establish such an algorithm for determining the amount of court costs, which takes into account the property of the party and does not create obstacles to the exercise of the right to go to court, while acting as a safeguard against abuse of the right to go to; 2) territorial, which provides that the system of courts of general jurisdiction should be built taking into account the territorial structure of the state, with local courts, which consider all cases as courts of first instance, should be territorially as close as possible to the person; 3) organizational — provides for the optimal organization of the judicial system, which should be simple and, at the same time, clear and effective, in the context of access to court and the procedure for protection of individual rights. In addition, both the system of general courts as a whole and each individual court of general jurisdiction must be established and carry out their procedural activities in strict accordance with national law; 4) informational, according to which each state must legislate to inform its citizens and business entities about the procedure for going to court, about the conditions of providing certain categories of socially vulnerable citizens engaged in business activities, professional legal assistance provided by lawyers at the expense of the state, as well as the cur rent procedural rules; 5) procedural, which guarantees the administration of justice on the basis of the Rule of Law, as well as impartiality and impartiality of the court and judges, reasonable timeliness of court proceedings, publicity of proceedings and promulgation of court decisions, proper motivation and justification of court decisions, ensuring effective execution of court decisions and respect for final court decision; 6) quality of legislation, which imposes on the state the obligation to adopt legislation that meets the requirements of accessibility and predictability, so that each person has the opportunity to obtain adequate information about the circumstances of the application of legal norms in a particular case.
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Jones, David LLoyd. "Article 6 Echr and Immunities Arising in Public International Law". International and Comparative Law Quarterly 52, n.º 2 (abril de 2003): 463–72. http://dx.doi.org/10.1093/iclq/52.2.463.
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The Procedural guarantees laid down in Article 6, European Convention on Human Rights in relation to the fairness and expedition of legal proceedings would be meaningless if the Convention did not protect the right of access to the courts which is a precondition to the enjoyment of those guarantees. As a result, the European Court of Human Rights has laid down the principle that Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court. The right of access to the courts is not absolute. The Strasbourg case law acknowledges that it may be subject to limitations. Contracting States enjoy a margin of appreciation in this regard. However, national courts must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Moreover a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
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Gromozdina, Maria V. "Access Rights as a Way to Communicate with a Child". Juridical Science and Practice 16, n.º 1 (2020): 11–16. http://dx.doi.org/10.25205/2542-0410-2020-16-1-11-16.
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The article deals with issues related to the exercise of parental access rights as a way of communicating with the child. A parent who claims to exercise the right of access is a separately residing parent and, as a rule, a foreign citizen. The implementation of the right of access is related to the application of the Hague Convention on Civil Aspects of International Child Abduction, 1980. In this connection, the author investigates the problems of application of the right of access by the Russian courts in solving family disputes related to upbringing of children. The situation is analyzed as to the possibility of a broad interpretation of the concept of "access rights", taking into account established international practice. The problem of a misunderstanding of the essence of access rights and the related limited application of the Convention's provisions are identified. The author is of the view that the rights of access and the procedure for communication with the child (in case of separation of parents) are independent legal institutions and do not replace each other. Comparative legal analysis confirms the author's conclusions, which are justified by examples of court practice. The choice of the method of protection of parental rights is determined by the person applying for protection and cannot be changed by the court in violation of the plaintiff's rights. Thus, the conclusion is made that it is necessary to analyze the jurisprudence of the European Court of Human Rights in order to properly apply the Convention.
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Foroughi, Fazlollah y Zahra Dastan. "Victim’s Right of Access to International Criminal Courts". Journal of Politics and Law 10, n.º 1 (29 de diciembre de 2016): 279. http://dx.doi.org/10.5539/jpl.v10n1p279.
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Due to quantitative expansion and evolution in committing the crime at the international level, the scope of criminal proceedings has been widened significantly. Tolerance and forgiveness towards crimes that happen at international level not only is a double oppression on the victims, but also provide a fertile context for others to commit crimes more daringly. Thus, it is essential that international criminals are held accountable to the law and competent institution, and the realization of this issue leads to the victim satisfaction in international law. Not only in international law, but also in domestic law, show respect and protection of human rights is effective only when there is an effective justice system to guarantee the rights. Although some international crimes practically occur by the government or at least high-ranking government officials, the Statute of the International Criminal Court has reiterated this point that they only have jurisdiction over the crimes committed by natural persons rather than legal entities, which one good example is governments, and although the real victims of these crimes have been human beings, in the case of action and referring the case to the competent international courts, these are the states (rather than the victims) that actually have the right of access to the authorities and not beneficiaries .Thus, at the first step, we should see whether the Court has jurisdiction over the crime committed by the government and whether people can file an action independently in the International Criminal Court or not? When people, rather than governments, are beneficiaries in some international crimes, why only the government and not the people is the plaintiff? And what is the right of the victim in such category of crimes? Accordingly, the current research seeks to examine these rights and restrictions, and relevant limitations.
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Terzieva, Vessela. "State Immunity and Victims’ Rights to Access to Court, Reparation, and the Truth". International Criminal Law Review 22, n.º 4 (8 de julio de 2022): 780–804. http://dx.doi.org/10.1163/15718123-bja10139.
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Abstract Recently municipal courts have found that foreign states do not enjoy jurisdictional immunity with respect to civil claims involving serious violations of international law within the forum state’s territory during armed conflict. This article assesses the recent judgments’ potential impact, taking into account previous court practice and international human rights jurisprudence. It concludes that an exception to immunity in the above circumstances where no alternative judicial remedies exist for the victims has a basis in previous practice and may be required to give effect to international human rights obligations. A recognition by the foreign state of an individual victims’ right to bring a claim before that state’s courts could provide the victims with reparation in the form of satisfaction. Where no such possibility exists, a limited exception to the rule of state immunity would ensure the victims’ right to access to court and to the truth.
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Svetlichna, S. Yu. "THE RIGHT OF ACCESS TO COURT IN INTERPRETATION OF THE EUROPEAN COURT OF HUMAN RIGHTS". Juridical scientific and electronic journal, n.º 4 (2021): 638–41. http://dx.doi.org/10.32782/2524-0374/2021-4/157.
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Mair, Judith L. M. "Patient Access to Medical Records". Health Information Management 26, n.º 3 (septiembre de 1996): 148–50. http://dx.doi.org/10.1177/183335839602600317.
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The issue of, and access to, medical records has been a contentious matter for some years in Australia. The recent High Court decision of Breen v Williams has clarified the law nationwide. The High Court confirmed that the ownership of medical records is vested in the creator of the records. The High Court further held that a patient has no right at law to access his or her medical records in the absence of any statute granting such a right, or other legal process.
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Spiga, Valentina. "EFFECTIVE LIMITATIONS AND ILLUSORY RIGHTS: A COMMENT ON THE MOTHERS OF SREBRENICA DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS". Italian Yearbook of International Law Online 23, n.º 1 (17 de noviembre de 2014): 269–86. http://dx.doi.org/10.1163/22116133-90230047.
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The latest attempt by the relatives of the victims of the Srebrenica massacre to hold the UN accountable for the inaction of UNPROFOR while the Bosnian enclave was attacked has once again proven unsuccessful. In a unanimous decision in the Stichting Mothers of Srebrenica and others v. the Netherlands case, the European Court of Human Rights declared the application to be ill-founded, finding that the decision of Dutch courts to grant immunity to the UN did not violate the applicants’ right of access to a court. An intrinsic tension between two contemporary trends seems to be embodied in this recent decision. On the one hand the decision follows established and authoritative practice according to which a civil claim cannot override immunity from jurisdiction even though no alternative means of redress is available. On the other hand it conflicts with the growing emphasis placed on the right of access to justice and the right to remedy for victims of gross violations of human rights in the last decade. This note aims to provide a critical review of the decision, focusing on the “alternative means of remedy” test in cases involving the immunity of international organizations. In doing so, the note questions whether such a test must always be a prerequisite for the effective enjoyment of the right of access to a court.
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Katić, Nikolina, Matea Bašić y Morana Briški. "Right of Access to Supreme Courts in Light of the Guarantees under Article 6 § 1 of the Convention on Human Rights and Fundamental Freedoms (civil aspect)". Croatian International Relations Review 24, n.º 81 (1 de mayo de 2018): 69–90. http://dx.doi.org/10.2478/cirr-2018-0004.
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Abstract Right of access to a court, enshrined in Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms forms one of the basis for reinforcement of the principle of rule of law. However, the right of access to a court may be limited by provisions of national legislation regulating the functioning of the judicial system and rules of judicial procedure. The higher the hierarchy of the court, the more limits may be placed on the right of access to it. The aim of this article is to examine the different modalities of organisation of supreme judiciaries in European countries (members of the Council of Europe) and mechanisms established in national legislation for filtering applications to those jurisdictions in civil cases, in light of the principles set forth in that regard by the ever evolving case-law of the European Court of Human Rights, and the effects of its judgments and decisions on national legal systems.
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Hins, Wouter y Dirk Voorhoof. "Access to State-Held Information as a Fundamental Right under the European Convention on Human Rights". European Constitutional Law Review 3, n.º 1 (febrero de 2007): 114–26. http://dx.doi.org/10.1017/s1574019607001149.
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Access to state-held information essential in a democratic society – Traditional reluctance of the European Court of Human Rights to apply Article 10 European Convention on Human Rights in access to information cases – Positive obligations and new perspectives: initiatives within the Council of Europe – Parallel with the Inter-American Court of Human Rights – Sdruženi Jihočeské Matky decision of the European Court: the beginning of a new era?
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Dube, Felix y Chantelle Moyo. "The Right to Electricity in South Africa". Potchefstroom Electronic Law Journal 25 (4 de marzo de 2022): 1–21. http://dx.doi.org/10.17159/1727-3781/2022/v25ia11839.
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In this note, we examine access to electricity as a right in South African law. We also consider whether deprivations, interferences and disruptions of electricity supply are justifiable limitations of the right. While recent court decisions view access to electricity as a supplement to the Bill of Rights, judicial treatment of electricity as a right precedes the Constitution of the Republic of South Africa, 1996. Prior to the adoption of the Constitution, the courts treated access to electricity as a common law right in the context of servitudes and personal and contractual rights. Under the Constitution, the right to access to electricity flows from the constitutional and statutory obligations of Eskom, South Africa's power utility, to provide reliable electricity supply and to ensure just administrative action when taking actions that result in the deprivation of electricity. From a Bill of Rights perspective, the cases show that the right to electricity, albeit not expressed in the text of the Constitution, is a condition for the exercise of other rights, including the rights to human dignity and access to adequate housing, water and health care. We conclude that the deprivation of electricity through loadshedding and other interruptions by Eskom, landlords and body corporates are violations of the right to access to electricity. These violations could be remedied through spoliation and constitutional remedies.
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Warbrick, Colin y Dominic McGoldrick. "I. Diplomatic Representations and Diplomatic Protection". International and Comparative Law Quarterly 51, n.º 3 (julio de 2002): 723–33. http://dx.doi.org/10.1093/iclq/51.3.723.
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The European Court of Human Rights has decided in the last three years five cases dealing with state or international immunities.1 Although the facts differed, the arguments of the applicants were much the same. They contended that allowing a foreign State or an international organisation to claim immunity in a civil action in proceedings in the defendant State violated the applicants' rights to access to a court for the determination of a civil right.2 The European Court accepted the claims in principle but concluded in each case that the limitation imposed on the right of access was for a legitimate reason (the protection of State or international immunities, a condition for effective co-operation between States or with international organisations) and was proportionate to this aim, because in each case, the grant of immunity was required by international law and that in each case there was the possibility of the applicant using another procedure to try to assert his rights, action in the courts of the foreign State or under the special staff regime of the international organisation.
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Katz Cogan, Jacob. "Stichting Mothers of Srebrenica v. Netherlands". American Journal of International Law 107, n.º 4 (octubre de 2013): 884–90. http://dx.doi.org/10.5305/amerjintelaw.107.4.0884.
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On June 11, 2013, in Stichting Mothers of Srebrenica, a chamber of the European Court of Human Rights found that the Dutch courts’ grant of immunity to the United Nations in a case brought by and on behalf of relatives of individuals killed by the Army of the Republika Srpska in and around Srebrenica in July 1995 did not run afoul of Articles 6 and 13 of the European Convention on Human Rights (Convention). Those provisions guarantee, respectively and among other things, the right of access to a court and the right to “an effective remedy before a national authority” if any Convention right is violated. Having found that the challenged decisions accorded with Dutch obligations under the Convention, the chamber declared the application before the Court inadmissible as “manifestly ill-founded” and “rejected” it pursuant to Article 35(3)(a) and 4. The chamber’s decision was unanimous.
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Janderová, Jana. "Advances in Transparency and Right to Access Information in The Czech Republic". Central European Public Administration Review 20, n.º 2 (28 de noviembre de 2022): 101–22. http://dx.doi.org/10.17573/cepar.2022.2.05.
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Purpose: The article examines the advances in the transparency of the Czech public administration since the 1990s. Transparency is subtly intertwined with accountability, promotes democracy, and helps to prevent misuse of power or other types of illegal acting. Thus, the right to access information must be interpreted broadly enough, yet there are other rights such as privacy or trade secrets which must be respected at the same time. The paper therefore explains the balance between those rights that has been achieved through years of court interpretation. It explores the advances in the courts’ views and the resulting improvements in the administrative practice, as well as the relationship between the right to information and accountability.Design/methodology/approach: The author studies the crucial provisions of the Act on Free Access to Information. Based on an analysis of the interpretation by the Czech Supreme Administrative Court and the Czech Constitutional Court of the most questionable issues – such as the determination of which public institutions are considered obliged entities, the exemptions from the duty to provide information, remedies, and payments for complicated data searches – the paper shows the developments over the past 23 years. The paper also seeks to identify the relationship between the outcomes of the analysis, i.e. the confirmed advances, and the accountability od administrative bodies which should theoretically result therefrom.Findings: The case law on the interpretation of individual legal provisions is rather favourable to a broad access to information, restricting the exemptions and other obstacles. However, the article argues that in order to take full advantage of the gains in the area of free access to information brought about by the carefully argued case law and subsequent improvements of the obliged entities approach, the resulting accountability still needs to be elaborated.Academic contribution to the field: The research contributes to administrative science by addressing the practical application of laws on transparency issues. It shows the importance of court support to an interpretation broad enough to balance other rights, such as the right to privacy. It provides a background for further research of the consequences, i.e., accountability.Originality/significance/value: An overview of the evolution of court decisions interpreting controversial legal provisions is provided. The gaps between the advances in the implementation of the principle of transparency and the theoretically resulting accountability are identified.
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Toplak, Jurij y Boštjan Brezovnik. "Information delayed is justice denied". Informatologia 52, n.º 1-2 (30 de junio de 2019): 1–8. http://dx.doi.org/10.32914/i.52.1-2.1.
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European Court of Human Rights ruled in 2016 that the European Convention on Human Rights includes a right to access information held by public authorities. While according to international documents the procedures for accessing information should be ‘rapid’, the courts have yet to rule on what ‘rapid’ means and when the procedures are so long that they violate rights of those asking for information. This article analyses the length of proceedings in access to information cases in Slovenia and Croatia. It shows that these two countries do not have a system of effective protection of rights because the authorities can easily delay disclosure of information for several years. It argues that lengthy procedures violate the right to access the information and the freedom of expression. It then presents solutions for improving access to information procedures in order for them to become ‘rapid’
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Szwed, Marcin. "Nadmierny formalizm procesowy jako naruszenie art. 6 ust. 1 Konwencji o ochronie praw człowieka i podstawowych wolności". Ruch Prawniczy, Ekonomiczny i Socjologiczny 82, n.º 2 (30 de junio de 2020): 123–36. http://dx.doi.org/10.14746/rpeis.2020.82.2.9.
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All judicial proceedings are inevitably based on the formalized procedures. Procedural provisions pursue many important objectives, such ensuring the effectiveness of proceedings or protecting legal certainty by regulating the competences of procedural bodies and the rights and duties of parties. At the same time, excessive procedural formalism may disproportionately limit the right to court, making access to court illusory. Within the framework of the European Convention on Human Rights, the permissible limits of procedural formalism are set by Article 6(1). The European Court of Human Rights, assessing whether excessive formalism has occurred in a given case, examines whether relevant formal requirements served a legitimate purpose, in particular legal certainty and proper administration of justice, and did not lead to a disproportionate restriction of the right of access to court. This assessment is made on the basis of all relevant circumstances of the case, such as the stage at which the proceedings were terminated, the type of proceedings, the party’s due diligence, the existence of circumstances justifying failure to comply with a formal requirement or the fact that the party was represented by a professional representative. Therefore, not only the content of national provisions is important, but also the manner of their application by courts.
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Cuniberti, Gilles. "The European Court of Human Rights: Sabeh El Leil v. France". International Legal Materials 51, n.º 1 (febrero de 2012): 1–16. http://dx.doi.org/10.5305/intelegamate.51.1.0001.
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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.
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Roszkiewicz, Janusz. "Jawność postępowania sądowego w świetle Europejskiej konwencji praw człowieka". Radca Prawny, n.º 2 (27) (2021): 11–42. http://dx.doi.org/10.4467/23921943rp.21.011.14204.
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Openness of court proceedings in compliance with the European Convention on Human Rights The subject of this article is the right to open court proceedings as guaranteed in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The most important elements of this right are: the right to participate in a court hearing, the right to access to the case files and the right to acquaint with the ruling. This right applies not only to the parties to the proceedings, but also – albeit to a lesser extent – to every citizen. The text discusses the findings of the doctrine and the European Court of Human Rights, at times criticizing them especially with regard to the too narrow definition of the obligation to publicly announce the judgment. In addition, the article analyzes the extent to which the Polish law encourages openness in civil, criminal and judicial-administrative procedures.
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Pavoni, Riccardo. "Simoncioni v. Germany". American Journal of International Law 109, n.º 2 (abril de 2015): 400–406. http://dx.doi.org/10.5305/amerjintelaw.109.2.0400.
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With Judgment No. 238/2014, the Italian Constitutional Court (hereinafter Court) quashed the Italian legislation setting out the obligation to comply with the sections of the 2012 decision of the International Court of Justice (ICJ) in Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Jurisdictional Immunities or Germany v. Italy) that uphold the rule of sovereign immunity with respect to compensation claims in Italian courts based on grave breaches of human rights, including—in the first place—the commission of war crimes and crimes against humanity. The Court found the legislation to be incompatible with Articles 2 and 24 of the Italian Constitution, which secure the protection of inviolable human rights and the right of access to justice (operative paras. 1, 2).
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Zaborovskyy, V. V., V. V. Manzyuk y А. Stoika. "Review of court decisions: a theoretical and legal study of the practice of the European Court of Human Rights". Analytical and Comparative Jurisprudence, n.º 5 (30 de diciembre de 2022): 383–89. http://dx.doi.org/10.24144/2788-6018.2022.05.71.
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The study is devoted to clarifying the main theoretical-legal and practical issues that arise when a person exercises the right to appeal a court decision.
Issues such as the institution of appeals against court decisions, which are relevant for procedural law, are considered, such as the observance of reasonable proportionality between the right of a person to access the courts of higher instances and the observance of legal certainty in the state.
As a result of the study, the legal nature of the institution of appeal against a court decision that has not entered into force, as well as one that has entered into force, is revealed. The latter is defined as an extraordinary form of judicial protection, its main features are analyzed.
To ensure the reliability and completeness of the obtained results, a complex of general scientific and special methods was applied, the complex use of which ensured the achievement of the goals and objectives of the research, as well as the persuasiveness of the formulated conclusions. In particular, the dialectical method was used to study the legal nature of the right to appeal court decisions and private disputes. Methods of analysis and synthesis were used in the formulation of basic concepts, such as "appeal", "cassation review", "procedural filters", etc. The empirical basis of the research was made up of the materials of the judicial practice of the European Court of Human Rights, in particular, both modern legal positions of the international jurisdictional body and key cases were used.
It was concluded that although access to the court of appeal is subject to indirect restrictions, access to the court of cassation is subject to so-called cassation filters. Such a definition is related both to the role of the cassation instance as a higher court and its definition as a "court of law", and to revised decisions that have entered into force and that shake the already defined legal position of the parties. Nevertheless, strict cassation filters cannot help against the influx of cassation appeals for those states whose citizens have a low level of trust in the courts of first instance.
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Treichl, Clemens. "The Denial of Oral Hearings by International Administrative Tribunals as a Factor for Lifting Organizational Immunity before European Courts". International Organizations Law Review 16, n.º 2 (16 de diciembre de 2019): 407–46. http://dx.doi.org/10.1163/15723747-20181139.
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Although formally provided for in particular statutes, certain international administrative tribunals continue to hold oral hearings—if at all—only on the rarest of occasions. With specific attention to the International Labour Organization Administrative Tribunal, the present paper aims 1) at recapitulating essential holdings of the European Court of Human Rights with regard to the right to access to a court in the context of employment-related claims against international organizations; and 2) at examining the relevance of oral hearings in the determination of proportionality of organizational immunity. The analysis shows that, in principle, the denial of oral hearings by international administrative tribunals results in the duty of states to afford individuals access to a court. In the realm of international law, a conflict with the obligation to grant immunity ensues. As yet, domestic courts have remained reluctant to overrule immunity on human rights grounds.
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Kurakina, Polina. "European Court of Human Rights: review of the Grand Chamber judgment of 15 October 2020 in the case of Muhammad and Muhammad v. Romania (аpplication no. 80982/12)". Meždunarodnoe pravosudie 11, n.º 1 (2021): 3–12. http://dx.doi.org/10.21128/2226-2059-2021-1-3-12.
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In Muhammad and Muhammad v. Romania (application no. 80982/12), the European Court of Human Rights examined the legality of limiting the right to be informed of the reasons for expulsion and the right to have access to the documents in the case file. The Grand Chamber acknowledged that these rights were not established in the first paragraph of Article 1 of Protocol no. 7 to the Convention, but noted that a foreigner would not be able to present arguments against his expulsion if he did not know the factual circumstances based on which the authorities concluded that he poses a threat to national security. This information is necessary to exercise one’s rights under the first paragraph of the article in question. The mere fact that the decision on expulsion was taken by independent judicial authorities at a high level, without it being possible to establish that the Court properly used review powers, did not suffice to counterbalance the limitations of applicants’ procedural rights. The Court also found that the limitations imposed on the applicants’ rights under Article 1 of Protocol no. 7 were not counterbalanced in the domestic proceedings and did not preserve the very essence of those rights: the courts did not examine the credibility of the findings of the Romanian intelligence service, the applicant’s lawyers did not have access to classified documents, the applicants were not informed about the possibility of having lawyers with proper access to classified information, etc. After applying the facts of the present case, the Court, therefore, concluded that there had been a violation of Article 1 of Protocol no. 7 to the Convention.
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Piątek, Wojciech. "Access to the Highest Administrative Courts: between the Right of an Individual to Have a Case Heard and the Right of a Court to Hear Selected Cases". Central European Public Administration Review 18, n.º 1 (23 de abril de 2020): 1–23. http://dx.doi.org/10.17573/cepar.2020.1.01.
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Hearing a dispute by a court in a reasonable time is one of the crucial conditions for the existence of an effective judicial system as imposed by the European law and national legal orders. That requirement is contrary to the expectations of individuals to question the judgments of lower courts before the courts of the highest instance. The purpose of this article is to explore the question of values that should be taken into consideration by legislatures in a process of determining the access of administrative cases to the highest courts. The analysis is based on the example of Austrian and Polish legal systems. In both countries, there is a separate two-instance administrative judiciary. However, the conditions of the access to the Supreme Administrative Courts differ. In Poland, that access is unlimited, considering the constitutional principle of two-instance court proceedings. In Austria, the right in question is limited to cases deemed significant for broader interest, i.e. not only the one of the parties to the proceeding. An analysis of the normative consequences of each solution leads to the conclusion that procedural limitations concerning the access to the highest courts foster their role in preserving the uniformity of the case law and ensuring a high standard of its interpretation. A system with no limitations does not guarantee the determination of a concrete dispute in a reasonable time and thus cannot be considered effective.
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Wójcicka, Ewa. "Access to a Court in Matters Concerning Disputes of an Individual with the Public Administration in the Republic of Poland vs. the Standards of the Council of Europe". International and Comparative Law Review 16, n.º 1 (1 de junio de 2016): 111–25. http://dx.doi.org/10.1515/iclr-2016-0008.
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Summary This paper focuses specifically on the fundamental part of the right to a fair trial, namely access to a court. The aim of this article is an attempt to analyse the difference between the requirements of European standards and how they are reflected in Polish legislation. First of all, I am going to analyze basic European standards specified in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Recommendation Rec(2004)20 on the judicial review of administrative acts and in the jurisprudence of the European Court of Human Rights. Then I will focus on selected aspects of the problem of judicial review of administrative acts specified in the Act of 30th August 2002 Law on Proceedings before Administrative Courts. I will discuss several specific topics from this field, which can be considered as crucial in relation to access to court, namely: definition of terms for access to justice by an individual, exhausting administrative remedies before judicial review, locus standi and legal aid.
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Sverba, Y. І. "Ensuring the exercise of the right to access to justice as a mandatory attribute of a constitutional state". INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, n.º 12 (2021): 311–16. http://dx.doi.org/10.33663/2524-017x-2021-12-52.
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The article analyzes both the positive and negative obligations of the state regarding the right to access to justice. Based on the principle of separation of powers into legislative, executive and judicial, emphasis on the need for real justice in constitutional state, as well as ensuring its accessibility, is made. Some aspects of the European Court of Human Rights case-law in the field of access to justice are considered. It is also hypothesized that the ECtHR case-law ensures the dynamic development of the European Convention on Human Rights provisions. In particular, the article analyses several ECtHR decisions which explicitly state that the Convention is intended to guarantee not theoretical and illusory, but practical and effective rights («Matthews v. The United Kingdom», «Bellet v. France and others»). The decision of the Constitutional Court of Ukraine is studied, which, inter alia, reveals the special role of constitutional and administrative proceedings in ensuring the rule of law. The obligation of the state to ensure equal access to justice is stated, since the purpose of justice is to protect violated, disputed rights, freedoms that belong directly to the person applying to the court for their protection. Therefore, the exercise of the right guaranteed by part two of Article 55 of the Constitution of Ukraine to appeal court decisions, actions or omissions of subjects of power must be ensured in accordance with the stated purpose of justice. At the same time, this right connects to the opportunity of every person to justify before the court conviction in the illegality of interference by the subjects of power in rights and freedoms concerned. The article analyses the decision of the Grand Chamber of the Supreme Court, which reveals the legal nature of ensuring access to justice in criminal, or administrative offenses. It is stated that the attributes of the rule of law are not limited to the justice and access to it, and their autonomous existence is impossible in a society where other democratic institutions do not work. Keywords: the rule of law, justice, access to justice, constitutional state, human rights, legal aid.
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Goestoro, Ratih Ananda Putri. "Access to Judicial Remedies for Palm Oil Workers Under Poor Working Conditions in Indonesia". Yuridika 37, n.º 1 (1 de marzo de 2022): 255–82. http://dx.doi.org/10.20473/ydk.v37i1.34604.
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Most palm oil workers in Indonesia are employed as temporary daily workers. Their situations are prone to human rights violations ranging from the right to fair working conditions to the freedom of association. Under international law, palm oil workers should have the right to remedies for these human rights violations. The third pillar of the United Nations Guiding Principles on Business and Human Rights (UNGPs) provides that remedies for victims of business-related human rights violations can be accessed through judicial or non-judicial means. Under Indonesian Law, palm oil workers working under poor conditions can access their remedy through judicial mechanisms, such as the Industrial Relations Court, Civil Court or Criminal Court. However, current Indonesian Law does not provide adequate access to remedies for palm oil workers in Indonesia because the law does not provide the obligation to provide remedies under the UNGPs. Therefore, these palm oil workers do not have adequate access to a judicial remedy. Palm oil workers in remote areas face legal, procedural, and practical barriers in obtaining remedies. This article aims to find the judicial avenues these workers could use to access remedies and overcome their challenges.
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Grubač, Momčilo. "Study of the case law of the European Court of Human Rights in criminal law matters". Glasnik Advokatske komore Vojvodine 79, n.º 9 (2007): 371–95. http://dx.doi.org/10.5937/gakv0712371g.
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This study includes certain number of decisions of the European Court of Human Rights that relate to the criminal procedural matters, primarily those constituting the right to a fair trial provided in Article 6 of the Convention for Protection of Human Rights and Fundamental Freedoms. These decisions were analyzed and interpreted in order to establish the practice of the Court in these procedural matters and to enable us to evaluate whether domestic criminal procedural law and its application are in line with this practice. The author dealt with the issues of prohibition to institute legal action twice for the same cause of action (ne bis in idem), immunities and privileges, right to court access, exclusion of inadmissible evidence from the criminal case files, right to the impartial court and right of defense to call and interrogate witnesses.
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Topilina, Tatiana. "Provision of the access to justice for consideration of criminal procedure dispute in the court of cassation". Юридические исследования, n.º 10 (octubre de 2021): 37–48. http://dx.doi.org/10.25136/2409-7136.2021.10.36737.
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This article analyzes the problems of exercising the right of access to justice for consideration of criminal procedure dispute in the court of cassation. The author examines the legislation of post-Soviet countries in terms of provision the access to justice for consideration of criminal procedure dispute in the court of cassation. The subject of this research is the norms of Russian and foreign legislation that regulate to right of access to justice in criminal proceedings. The object of this research is the legal relations that emerge in implementation of the right of access to justice. It its demonstrated that the restriction on access to justice for consideration of criminal procedure dispute in the court of cassation instance is the time constraint for filing cassation appeal for the convict; and for consideration of interlocutory court decisions – the procedure for assessing cassation appeal without holding a court hearing. The conclusion is substantiated on the need to waive the time constraint for filing cassation appeal for the convict against final court decisions that have entered into force, and for consideration of interim court decisions, the procedure for assessing cassation appeal against the interlocutory court decision should be eliminated without holding a court hearing.
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Kranenborg, Herke. "Access to documents and data protection in the European Union: On the public nature of personal data". Common Market Law Review 45, Issue 4 (1 de agosto de 2008): 1079–114. http://dx.doi.org/10.54648/cola2008072.
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If one of the EU Institutions is asked by a citizen to disclose a document which contains personal data, a difficult and sensitive situation can arise. The person asking for the information invokes his or her right of access to documents, while the Institution is obliged to respect the right to data protection of the person to whom the information in the document relates. Two fundamental rights can lead to opposing claims. How this collision can be solved is the focus of this article. It appears that the current legislation in which the right to public access to documents (Regulation 1049/2001) and the right to data protection (Regulation 45/2001) are elaborated does not sufficiently address this possible collision. Although in November 2007 the Court of First Instance has clarified the legal framework to a certain extent, in the judgment in the so-called Bavarian Lager case, questions still remain. It is therefore argued that the legislation should be changed in this respect. Inspired by examples from national legislation and case law from the European Court of Justice as well as the European Court of Human Rights a concrete proposal is developed, which is timely since the Regulation on access to documents is currently under revision.
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Dorange, Aude y Stewart Field. "Reforming Defence Rights in French Police Custody: A Coming Together in Europe?" International Journal of Evidence & Proof 16, n.º 2 (abril de 2012): 153–74. http://dx.doi.org/10.1350/ijep.2012.16.2.396.
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In April 2011 a major reform of the law regulating the police custody phase ( la garde à vue) was adopted by the French Parliament and implemented in June 2011. The new legislation confirms the right of immediate access to a lawyer in police custody and establishes a right to have that lawyer present during interrogation. This follows a series of decisions in 2010 by the European Court of Human Rights, the French Constitutional ‘Court’ ( Conseil constitutionnel) and the final appeal court with jurisdiction over criminal matters ( la Chambre criminelle de la Cour de cassation). These decisions declared existing limits to defence rights in the French police custody phase to be contrary to the European Convention on Human Rights, unconstitutional and unlawful. These developments have been much discussed in France (both positively and negatively) because they seem to signal a further shift away from France's inquisitorial tradition in criminal process. They can also be seen as part of a coming together of defence rights across Europe prompted by the European Union and the European Convention on Human Rights.
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Morley, J. Gareth. "Trial Lawyers of British Columbia v British Columbia: Section 96 Comes to the Access to Civil Justice Debate". Constitutional Forum / Forum constitutionnel 25, n.º 2 (11 de octubre de 2016): 61. http://dx.doi.org/10.21991/c9t96s.
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You can bemoan or you can celebrate, but you cannot deny that the Canadian Charter of Rights and Freedoms fundamentally changed Canadian criminal procedure. In contrast, until recently, civil proceduralists could confidently ignore constitutional law. All attempts to constitutionalize principles of civil justice had been rebuffed by the courts. That appears to be how the framers of the Charter wanted it. The Legal Rights set out in sections 7 through 14 of the Charter speak of deprivation of “life, liberty and security of the person”, “arrest” and “detention”, being charged with an “offence” or of “punishment and treatment”. Those caught up in the criminal justice system are precisely the kind of unpopular minority the framers thought needed protection from populist majoritarianism. On the other hand, the Charter demonstrates no desire to interfere with the long tradition of provincial autonomy and experimentation with civil justice. As a result, the Court early on decided that even where the Legal Rights are unclear, they do not apply to civil litigation.But the Supreme Court of Canada’s decision in Trial Lawyers Association means that those interested in civil procedure, and its possible reform, can no longer ignore the Constitution without risk. The Court held that a right of access to superior courts is protected by section 96 of the Constitution Act, 1867, as informed by the unwritten principle of the rule of law. British Columbia’s hearing-fee scheme — in place since before Confederation — was held to be unconstitutional because its exemption for the “impoverished” was found not to be wide enough to protect that right for middle-class would-be litigants. This comment will argue that the impact could be significant, since all issues in civil and family procedure can be reconceived in terms of access to courts. Unfortunately, the constitutionalization of civil procedure is unlikely to improve the systemic problems that deny middle class Canadians the realistic option of a day in court.
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Kuplewatzky, Nicolaj. "Balancing Disclosure and Access to Documents in EU Trade Defence Investigations". Global Trade and Customs Journal 15, Issue 8 (1 de agosto de 2020): 366–88. http://dx.doi.org/10.54648/gtcj2020077.
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The European Union’s founding treaties recognize the need for a balancing exercise between protective interests and the principles of openness, transparency, and the right of access to documents. Nowhere is that balancing exercise as evident as in the field of trade defence investigations. There, primary EU law principles meet the restrictions arising from the Union’s international law obligations under the WTO Agreements as well the sectoral EU law system of protection of confidential information. What is more, to-date, the Court of Justice of the European Union is yet to provide guidance on how that system should be untangled. This article assesses the interplay between those (at first sight competing) frameworks. In so doing, it will look at the intricacies of the law surrounding EU trade defence investigations and the public right of access to information under Regulation (EC) 1049/2001. Guided by the case-law in those areas and other fields of EU law, the article will discuss how that interplay of rights and restrictions should be resolved if and when the issue is put before the General Court or the European Court of Justice. Trade defence, disclosure, rights of defence, access to documents, Regulation (EC) 1049/2001
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Palačković, Dušica y Jelena Čanović. "Free legal aid in the context of the right of access to court". Zbornik radova Pravnog fakulteta Nis 59, n.º 89 (2020): 65–82. http://dx.doi.org/10.5937/zrpfn0-28777.
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The Constitution of the Republic of Serbia explicitly regulates that free legal aid shall be stipulated by the law. In a series of reports on the progress of the Republic of Serbia in the process of joining the EU, there are warnings about the unacceptably low quality level and efficiency of the judiciary, and indications that there is a need to regulate the legal aid system. Finally, this matter was regulated by enacting the Legal Aid Act of the Republic of Serbia, which came into force on 1st October 2019. In addition to the conceptual definition of legal aid, the paper analyzes the right of access to court as a constituent element of the right to a fair trial prescribed in Article 6 of the European Convention on Human Rights, which entails the right to legal aid. The regulation of legal aid at the national level has to meet the standards formulated at the European Union level as well as the standards formulated through the practice of the European Court of Human Rights. In that context, the paper analyzes the regulations and decisions, i.e. the widely recognized and accepted standards. The Legal Aid Act of the Republic of Serbia has been analyzed in the context of meeting these standards, especially in relation to the conditions for granting the right to legal aid and the circle of beneficiaries and providers of certain types of legal aid.
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Zungu, Bongiwe. "Case Note: Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33". South African Intellectual Property Law Journal 10, n.º 1 (2022): 131–43. http://dx.doi.org/10.47348/saipl/v10/a6.
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Materials under copyright, such as books and other literary works, are essential for human development and well-being. Accessing the information contained in these materials is relatively straightforward for sighted individuals, but for persons with print and visual disabilities, access is a challenge and often costly. The barrier to accessing information threatens various constitutional rights of persons with print and visual disabilities. The threatened rights include the right of access to information, the right to education, the right to equality and the right to human dignity. South Africa has been undergoing a process of copyright reform for over 15 years to remedy the violation of these rights. However, pending the finalisation of this process, the threat to these rights persists, and the matter thus warranted the intervention of the apex court in Blind SA v Minister of Trade, Industry and Competition and Others [2002] ZACC 33. This note first considers the regulation of copyright in South Africa to provide context. The note then analyses the Constitutional Court’s decision and considers the decision of the court a quo to provide some background on the matter. The note ends with an analysis of the implications of the judgment for persons with print and visual disabilities and a discussion of issues that the court did not consider.
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Brouwer, Evelien y Frederik Zuiderveen Borgesius. "Access to Personal Data and the Right to Good Governance during Asylum Procedures after the cjeu’s YS. and M. and S. judgment (C-141/12 and C-372/12)". European Journal of Migration and Law 17, n.º 2-3 (24 de junio de 2015): 259–72. http://dx.doi.org/10.1163/15718166-12342080.
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In the YS. and M. and S. judgment, the Court of Justice of the European Union ruled on three procedures in which Dutch judges asked for clarification on the right of asylum seekers to have access to the documents regarding the decision on asylum applications. The judgment is relevant for interpreting the concept of personal data and the scope of the right of access under the Data Protection Directive, and the right to good administration in the eu Charter of Fundamental Rights. At first glance, the judgment seems disappointing from the viewpoint of individual rights. Nevertheless, in our view the judgment provides sufficient grounds for effective access rights to the minutes in future asylum cases.
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Saukuma, Agnese. "Legal and Ethical Issues in Designing Online Courts". Baltic Yearbook of International Law Online 19, n.º 1 (9 de septiembre de 2021): 138–60. http://dx.doi.org/10.1163/22115897_01901_008.
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This research explores and analyses whether online courts perform a judicial function in accordance with the right to a fair trial and the right to fair and secure user’s personal data protection to all groups in society. By adopting a descriptive and critical approach, the author analyses the main operating principles of online courts and legal and ethical issues that may occur in designing and implementing online courts in conjunction with these rights. The result of this research shows that online courts provide greater access to justice to society and they would satisfy the needs of modern society with technological knowledge. At the same time they do not provide access to the most vulnerable groups that may not have or have limited internet access, or have not enough technological and legal knowledge, as a result of not ensuring equal access to justice to all groups in society. Taking into account that online courts perform a judicial function in the traditional court sense, they are bound by Article 6 (1) of the European Convention on Human Rights and the principles of personal data of the General Data Protection Regulation, but at present they cannot ensure their observance in relation to an open, transparent and impartial trial, as a result of a partial violation of the rights enshrined in these norms.
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Frisso, Giovanna Maria. "The Duty to Investigate Violations of the Right to Life in Armed Conflicts in the Jurisprudence of the Inter-American Court of Human Rights". Israel Law Review 51, n.º 2 (7 de junio de 2018): 169–91. http://dx.doi.org/10.1017/s0021223718000055.
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This article explores how the Inter-American Court of Human Rights (the Court) has dealt with allegations of violations of the right to life during an armed conflict and, in particular, how it has dealt with allegations of violation of the obligation to investigate such allegations. The article notes that international humanitarian law (IHL) was initially used by the Court to strengthen the general obligations of states to protect the rights guaranteed by the American Convention on Human Rights (ACHR). Later IHL began informing the interpretation of specific rights. This change has been more significant in relation to the interpretation of the right to life under the ACHR than in the examination of state compliance with the right of access to justice, which encompasses the duty to investigate allegations of violations of the right to life during an armed conflict. The analysis of the Court's jurisprudence demonstrates that the different ways in which the Court has addressed the relationship between IHL and international human rights law (IHRL) have been informed by its primary effort to ensure that the interpretation of the ACHR provides the widest protection possible to individual rights.
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BALATSKA, O. R. "THE RIGHT OF ACCESS TO A COURT IN THE EUROPEAN HUMAN RIGHTS PROTECTION SYSTEM". Law and Society, n.º 4 (2022): 444–51. http://dx.doi.org/10.32842/2078-3736/2022.4.64.
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Nifanov, Alexey y Maria Afanasyeva. "ENSURING THE RIGHT OF CITIZENS TO EQUAL ACCESS TO PUBLIC SERVICE IN THE LEGAL POSITIONS OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION". Scientific Notes of V. I. Vernadsky Crimean Federal University. Juridical science 7, n.º 4 (20 de febrero de 2023): 72–81. http://dx.doi.org/10.29039/2413-1733-2021-7-4-72-81.
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The article covers the theoretical and practical aspects of the activities of the Constitutional Court of the Russian Federation to ensure the right of citizens to equal access to public service. An attempt is made to systematize the array of legal positions of the Constitutional Court on chronological and thematic grounds. Examples of final decisions of the Constitutional Court of Russia related to ensuring the right of citizens to equal access to state and municipal service are given.
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Lehne, Florian y Paul Weismann. "The European Court of Human Rights and Access to Information". International Human Rights Law Review 3, n.º 2 (19 de noviembre de 2014): 303–15. http://dx.doi.org/10.1163/22131035-00302002.
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This contribution analyses the judgment of the European Court of Human Rights (ECtHR) in Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v Austria1 which was handed down in November 2013. In this judgment, the Court affirmed a violation of Article 10 of the European Convention on Human Rights (echr), because an Austrian appellate authority refused entirely to provide access to its past decisions. After an introduction into recent developments regarding the ‘right to receive information’, the facts of the case are presented. Subsequently, the Court’s reasoning in the assessment of the case is analysed with a view to the questions ‘interference’, ‘prescription by law’, ‘legitimate aims’ and ‘proportionality’ (stricto sensu). The Court’s supplementation of the traditional concept ‘public watchdog’ by the new notion of ‘social watchdog’ shall be outlined and a critical view on this legal innovation shall be provided, also with regard to the Court’s recent case law which is already pointing in this direction.
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Kuylen, Peter. "The Forgotten Property Right". Texas A&M Journal of Property Law 5, n.º 3 (abril de 2019): 501–28. http://dx.doi.org/10.37419/jpl.v5.i3.5.
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With its move to the “at home” standard in Goodyear, Daimler, and BNSF, the Supreme Court significantly restricted the exercise of general personal jurisdiction over nonresident corporation defendants. This restriction offers questionable actual benefits to corporate defendants, but its rigid focus on defendant’s rights has impacted the ability of certain plaintiffs to bring a cause of action against those defendants. Because the at home standard infringes on this group of plaintiffs’ ability to assert their property right of redress in violation of the Due Process Clauses of the Constitution (Fifth and Fourteenth Amendments), the Court should return to the previous “continuous and systematic contacts” standard developed under International Shoe. Hundreds of articles have been written in the four years since Daimler erased fifty years of general personal jurisdiction jurisprudence. But because personal jurisdiction analysis is traditionally defendant focused, there is little mention of the plaintiff’s property right in access to the courts in that literature. Personal jurisdiction rules should protect a defendant’s interests, but not to the total forfeiture of a plaintiff’s property right. Recognizing the at home standard as a misstep would resolve this constitutional conflict.