Artykuły w czasopismach: „Civil rights – Europe – Cases”

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Roorda, Lucas. "Jurisdiction in Foreign Direct Liability Cases in Europe". Proceedings of the ASIL Annual Meeting 113 (2019): 161–65. http://dx.doi.org/10.1017/amp.2019.168.

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The right to remedy for victims of human rights abuses by transnational corporations is far from guaranteed. Often, the state where the abuses occurred is unwilling or incapable of offering effective remedies, especially effective judicial remedies. The victims may then choose to “go global” and bring civil suits in the courts of other states, including the home states of the corporations alleged to have committed the abuse. One way in which they have done so is by bringing so-called “foreign direct liability” (FDL) cases: civil claims in domestic courts of foreign states against corporate actors, in the hopes of getting financial compensation as a remedy.

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Marochini Zrinski, Maša, i Karin Derenčin Vukušić. "NEPRUŽANJE ZDRAVSTVENE SKRBI KAO POVREDA ČLANKA 3. EUROPSKE KONVENCIJE S POSEBNIM OSVRTOM NA PRAKSU SUDA U PREDMETIMA IZVAN KONTEKSTA ZADRŽAVANJA". Pravni vjesnik 37, nr 2 (lipiec 2021): 83–104. http://dx.doi.org/10.25234/pv/12003.

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The European Convention on Human Rights, as a main Council of Europe instrument for the protection of civil and political rights, does not guarantee the right to health care. However, the European Court of Human Rights broadly interprets Convention rights, and within the context of Articles 2, 3 and 8 of the Convention it gave certain indications that it might start dealing with the issue of health care. Without going into details of all the mentioned articles, this paper will analyse cases where the Court dealt with the issue of violation of Article 3 due to non-provision of health care outside the context of detention. Namely, within the context of detention, there is a clear obligation for states to provide health care, and the Court often relies on the reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. What we consider important to point out is the Court’s case-law on providing health care outside the context of detention, given the social character of the right to health care, which goes beyond the civil and political character of the Convention.

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Barth, William. "Minority Rights, Multiculturalism and the Roma of Europe". Nordic Journal of International Law 76, nr 4 (2007): 363–406. http://dx.doi.org/10.1163/090273507x249200.

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AbstractIn this article, I review legal initiativaes to improve conditions for the Roma peoples who live in the states of Europe. The question is timely given the accession of Romania and Bulgaria to the European Union on 1 January 2007. Romania contains the largest concentration of the Roma population in Europe. My article uncovers a schism between political theory and international law on the question of minority rights. I distinguish how the conclusions of Will Kymlicka, one of the most prolific writers on the subject of multiculturalism in political theory, differ from the international jurisprudence that protects minority groups. In this essay, I analyse Kymlicka's claim that multicultural policies are contextually dependent, and an inappropriate subject for a common legal regime of international human rights treaties. To determine the implications of human rights jurisprudence for this normative claim, I also research court cases filed by the Roma under the European Framework Convention for the Protection of Minorities and the European Convention for the Protection of Human Rights and Fundamental Freedoms. I contrast the international treaties that protect minority groups from political theorist accounts of multiculturalism in three areas. First, my article discusses jurisdictional issues concerning whether the particular groups defined by minority rights, irrespective of their geographical location or contextual experience, are proper subjects for protection by a common rights regime. Next, I illustrate how cultural rights are distinguishable from traditional civil rights laws. Finally, I examine how the historic persecution of the Roma violates human rights standards that protect minorities. The Roma have a long and unique relationship with the European states, which serves to demonstrate whether or not a common regime of minority rights safeguards the cultural development of the Roma.

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Nurhidayatuloh, Nurhidayatuloh, i Febrian Febrian. "ASEAN and European Human Rights Mechanisms, What Should be Improved?" PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) 06, nr 01 (kwiecień 2019): 151–67. http://dx.doi.org/10.22304/pjih.v6n1.a8.

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The human rights mentioned in the Universal Declaration on Human Rights (UDHR) are universal values agreed upon countries in the world. This is reflected by the fact that no state rejects the United Nations General Assembly Resolution in 1948. It is even strengthened by the ratification of two major international human rights covenants, which have binding legal powers. They are the International Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights in 1966. European states are legally bound to human rights through the European Human Rights Convention that is signed in 1950 and come into force in 1953. On the other hand, ASEAN states are bound to human rights as parties of ICCPR, ICESCR, and their commitment to the regional level ASEAN Declaration of Human Rights. Both in European Union and ASEAN have their own human rights mechanisms: the European Court of Human Rights (ECtHR) and ASEAN Intergovernmental Commission on Human Rights (AICHR). This study employed a comparison method with a normative legal research approach to compare the human rights mechanisms in Europe and in ASEAN. It also deals with the implementation of human rights protection by the states in the two regional organizations. As a result, although the two regional organizations have human rights mechanisms applied in their areas, with experiences through cases appealing to European Human Rights Courts, Europe provides more assurance and legal certainty towards individuals when a state commit human rights violations against individuals. On the other hand, the AICHR, as the equal commission in ASEAN region, tends not to have sufficient legal power in handling human rights cases occurred in its territory.

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Nurhidayatuloh, Nurhidayatuloh, i Febrian Febrian. "ASEAN and European Human Rights Mechanisms, What Should be Improved?" PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) 06, nr 01 (kwiecień 2019): 151–67. http://dx.doi.org/10.22304/pjih.v6n1.a8.

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The human rights mentioned in the Universal Declaration on Human Rights (UDHR) are universal values agreed upon countries in the world. This is reflected by the fact that no state rejects the United Nations General Assembly Resolution in 1948. It is even strengthened by the ratification of two major international human rights covenants, which have binding legal powers. They are the International Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights in 1966. European states are legally bound to human rights through the European Human Rights Convention that is signed in 1950 and come into force in 1953. On the other hand, ASEAN states are bound to human rights as parties of ICCPR, ICESCR, and their commitment to the regional level ASEAN Declaration of Human Rights. Both in European Union and ASEAN have their own human rights mechanisms: the European Court of Human Rights (ECtHR) and ASEAN Intergovernmental Commission on Human Rights (AICHR). This study employed a comparison method with a normative legal research approach to compare the human rights mechanisms in Europe and in ASEAN. It also deals with the implementation of human rights protection by the states in the two regional organizations. As a result, although the two regional organizations have human rights mechanisms applied in their areas, with experiences through cases appealing to European Human Rights Courts, Europe provides more assurance and legal certainty towards individuals when a state commit human rights violations against individuals. On the other hand, the AICHR, as the equal commission in ASEAN region, tends not to have sufficient legal power in handling human rights cases occurred in its territory.

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Katić, Nikolina, Matea Bašić i 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, nr 81 (1.05.2018): 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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Andersen, David, Carsten Jensen i Magnus B. Rasmussen. "Suffering from Suffrage: Welfare State Development and the Politics of Citizenship Disqualification". Social Science History 45, nr 4 (2021): 863–86. http://dx.doi.org/10.1017/ssh.2021.38.

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AbstractFollowing the landmark essay of T. H. Marshall, Citizenship and the Social Class (1949), it has conventionally been assumed that the introduction and expansion of social rights in Europe happened as the final stage of a long process of democratization that included the granting of first civil and then political rights. We present a radically different perspective on the relationship between the extension of suffrage (under meaningful competition for government power) and social rights, that is state-financed entitlements that make citizens’ livelihood independent from the labor market in the instance of events such as unemployment or sickness. First, some countries institutionalized a state-financed poor relief system much before mass democratization. In these countries, the primary effect of suffrage extension was to reduce public social spending, not expand it. Second, the way this retrenchment occurred was partly by creating a negative link between social rights, on the one hand, and civil and political rights, on the other. We test our argument with case studies of nineteenth- to early-twentieth-century England, Denmark, Norway, and Prussia, all of which are paradigmatic cases that represent the variation in welfare state types.

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Zembrzuski, Tadeusz. "Evolvement of consumer rights protection in Polish judicial proceedings: New separate proceedings". Zbornik radova Pravnog fakulteta Nis 62, nr 98 (2023): 37–49. http://dx.doi.org/10.5937/zrpfn1-45220.

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In recognition of the concept of consumer rights to trial, individual and collective consumer rights should be extended across Europe as well as nationally. The need to affirm the procedural position of the so-called vulnerable parties in civil law proceedings is a complex and multifaceted matter. The Polish legislator having devised new separate proceedings in consumer cases is a manifestation of the equalising justice principle having been realised. Regardless, one may well doubt whether the current procedural form comprises a sufficient volume of significant deviations from ordinary proceedings to justify such nature to be conferred upon it. Related deliberations form part of a broader discussion regarding the structure, form, and suitability of Polish procedural law.

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YAMELSKA, Khrystyna. "Formation of a human-centric approach to the prevention of torture in Ukraine". Economics. Finances. Law, nr 4/1 (29.04.2021): 24–27. http://dx.doi.org/10.37634/efp.2021.4(1).5.

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The paper is concerned with the role of key international human rights standards and soft law instruments of the Council of Europe in the preventing ill-treatment of persons deprived of their liberty in the context of the human centrist approach. The paper determine the purpose of the formation of human-centric legal ideology in Ukraine, which is the creation of a mechanism of effective restriction of public power in the interests of protecting the fundamental rights. The paper is dedicated to the doctrine of human-centric legal ideology in Ukraine and its human dignity key element. Considering the fact that the process of forming a democratic human-centric legal ideology in Ukraine is still not complete, the paper highlights the cases of mass violations of fundamental human rights by law enforcement agencies, where a special problem is the illegal practice of law enforcement agencies against human dignity. One of its case is the ill-treatment and use of torture against persons deprived of their liberty. The paper highlights the ways to protect the right to dignity through the prism of legislative activity of government bodies and advocacy of civil society institutions. The Article 28 of the Constitution of Ukraine, which establishes the right to respect for human dignity as one of the key values of the Ukrainian legal system, is revealed. The category of dignity is revealed through the prism of Articles 5 of the Universal Declaration of Human Rights of December 10, 1948, Articles 7 and 10 of the International Covenant on Civil and Political Rights of December 16, 1966 and Article 3 of the European Convention on Human Rights of November 4, 1950. Judgments of the European Court of Human Rights, acts of the European Committee against Torture.

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Gusarov, Kostiantyn, i Viktor Terekhov. "Finality of Judgments in Civil Cases and Related Considerations: The Experience of Ukraine and Lithuania". Access to Justice in Eastern Europe 2, nr 5 (23.12.2019): 6–29. http://dx.doi.org/10.33327/ajee-18-2.4-a000020.

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Finality of judgments is a concept that puts an end to the trial, prohibiting subsequent appeals, opening of new proceedings and disputing clearly established facts. Despite being promoted by the Council of Europe and its Court of Human Rights and familiar to most if not all states, its application still encounters misunderstanding in some Eastern European Countries. Deeply rooted ideas of substantive truth and public role of the judiciary, a rather idiosyncratic notion of fair trial and the rule of law all lead to underestimation of the role played by finality in a peaceful life of the society. This article addresses the experience of Ukraine (where a major judicial reform has just taken place) and Lithuania – two post-Soviet nations that both, still in their unique way, worked on implementing the principle of finality into their procedural order. The paper also explores an uneasy balance to be found between this notion and other relevant considerations (access to justice, rule of law, judicial economy and some other).

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Martín-Retortillo Baquer, Lorenzo. "La defensa de los derechos fundamentales : tres diferentes cauces jurisdiccionales en la Constitución española". Civitas Europa 7, nr 1 (2001): 9–39. http://dx.doi.org/10.3406/civit.2001.961.

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A recent constitution, like the Spanish one of 1978, emphasises on three occasions, judicial control of administrative activity Firstly, dealing with basic rights, it tackles the principle of the concept of the "fair trial" or the "right to effective judicial supervision". Secondly, dealing with the Administration, it establishes the general criterion of judicial control. And thirdly, establishes the rule of "effective recourse" whenever there is a violation of basic rights. The influence of Italian constitutionalism is put into question insofar as the first two points are concerned. In order to keep a tight reign on the government when Franco's dictatorial regime ended, emphasis was placed on giving a clear role to the Judiciary. The result was an outpouring of judicial cases, leading to a collapse of the system. This would become a common phenomenon, intensely felt throughout Europe, requiring urgent solutions whilst avoiding the need for judicial conflict as much as possible. The same philosophy applies in the specific instance of "undue delay" in the exercise of justice now on the agenda, which is severely affecting the functioning of the European Court of Human Rights and is contributing to a loss of prestige, which should be avoided at all costs.

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Pilkov, Kostiantyn. "REOPENING CASES FOLLOWING JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS: ROOM FOR A EUROPEAN CONSENSUS?" Access to Justice in Eastern Europe 5, nr 4 (31.08.2022): 1–28. http://dx.doi.org/10.33327/ajee-18-5.4-a000415.

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The reopening of domestic criminal, civil, and administrative proceedings following European Court of Human Rights findings of a violation of the ECHR is an extraordinary remedy; its application is debatable in the Contracting States to the Convention. The overall objective of this article is to analyse the availability of the reopening of proceedings as a means of ensuring restitutio in integrum, i.e., the restoration of the status quo ante for a victim of violation or awarding compensation that would be sufficient in order bring the victim of a violation back to their position as if no violation had been committed. This article focuses on the examination of whether reopening a case following an adversarial ECtHR judgment is available as a remedy in the national legal systems throughout Europe. The method is comparative analysis without claiming to be exhaustive. Where analysed data made it possible, certain generalisations were made. The research allowed us to conclude that in contrast to the successful implementation of the CoE CM Recommendation, in part related to making available reopening in criminal proceedings to the benefit of a victim of a violation of the ECHR in almost every member state, the reopening of civil and administrative proceedings remains available only in half of the member states, where it faces significant limitations aimed at protecting res judicata and interests of good faith third parties (the bona fide third parties). Also, it has become subject to a test of effectiveness as a legal remedy compared to compensation measures.

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Bregu, Meljana. "The Protection of Human Rights in Post-Communist Albania". European Journal of Social Sciences Education and Research 7, nr 1 (1.12.2016): 63. http://dx.doi.org/10.26417/ejser.v7i1.p63-69.

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Albania was one of the most isolated countries in Europe for nearly 45 years. During the communist era, the legal system was under the direct control of the Party of Labor. The protection of human rights in the first years of the communist regime was clearly shaped on the soviet principles. The criminal code of Albania was the symbol of a repressive system, regardless of human rights protection, crimes punishable by death were sanctioned by various articles, including “agitation and propaganda against the state” and ‘activities against the revolutionary movement of the working class”. Hoxha also closed the Ministry of Justice and banned the private practice of law as a consequence the right to a fair trial was denied. After the fall of communism Albania has made significant progress toward respect for civil and political rights, especially toward the right to a fair trial. The constitution of 1998 protects the right to a fair trial in chapter two and one important step is the ratification of the European Convention on Human Rights in 1996, which guarantee the right to a fair trial in article six. Still, 25 years of transformation are not enough to wipe away the legacy of the past; the lack of human rights mechanisms poses a serious challenge to the Albanian democratic system. Still today Albania faces important issues concerning the protection of human rights generally and particularly the right to a fair trial. This fact is evident if we refer to the cases of the European Court of human rights versus Albania dealing with the application of article 6 of the Convention.The paper aims to address the protection of human rights after the demise of the communist regime, especially regarding the right to a fair trail, analyzing the progress but also the continuity in some aspects with the past.

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HERNANDO MASDEU, JAVIER. "Development and evaluation of oral and written rhetorical skills through essays and case studies". Revista Jurídica de Investigación e Innovación Educativa (REJIE Nueva Época), nr 3 (1.01.2011): 81–92. http://dx.doi.org/10.24310/rejie.2011.v0i3.7917.

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In Europe “civil law” schools the use of cases are often intended to help students to find out the "right" solution in a given legal problem. Among us, in continental Europe, most of law is made by scholars and legislators and the main task of a student in solving a case is place the facts in the right legal or theoretical category, so improving his conceptual management skills and his knowledge of the statutory law. By contrast, in anglo-saxon tradition law is developed mainly by judges, so teaching has much more to do with learning the way lawyers work. Cases and essays are used to discuss topics, and students strenghten their rethorical and argumentative skills. This paper analyzes the origins and development of those differences and shows and specific experience on use of cases and essays in a civil law tradition school (in Spain) in the context of Bologna Process, widely understood in Europe as focused in skills and competences, beyond the traditional role of contents and knowledge.

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Velichko, Veronika, i Ekaterina Terdi. "Contractual Preemptive Rights: Russian Doctrine and European Tradition in the Context of Russian Civil Code Reform". Russian Law Journal 7, nr 1 (22.03.2019): 119–37. http://dx.doi.org/10.17589/2309-8678-2019-7-1-119-137.

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Problems associated with the possibility of the stipulation of preemptive rights by contract and their effective protection are researched in this article. Based on the examples of German, French and Swiss civil legislation, we establish that contractual preemption is widely used in Europe as a convenient instrument to formalize the interests of the participants in a civil turnover. In this connection, in Russian civil doctrine, the widespread idea that preemptive rights may be stipulated only by law, not by contract, should be revised.We state that the essence of the institution of preemptive rights predetermines its remedy. Historically Russian civil law provides specific remedy in case of breach of the most spread statutory preemptive rights. It is a claim by the entitled person (holder of preemption) against a third party (counterparty of obliged person whose contract breached the preemption) to transfer from the third party to the entitled person the rights and duties that arose under the contract between the third party and the obliged person. This remedy is more efficient for the entitled person than damages. In accordance with the principle of good faith, it may be used only in cases in which the third party knew or should have known about preemption. However, this requirement is complied in relation to protection of statutory preemptions only. As far as both contractual preemptive rights and contracts stipulated the latter are not recognized and not registered in Russia, such suit will be dismissed by court. The lack of effective protection of contractual preemptions impedes the creation of full-fledge system of preemptive rights in Russian civil law.In order to create effective mechanism of protection of contractual preemptive rights by giving the participants of a civil turnover the opportunity to ascertain if there is a contractual preemptions, we suggest that Russian civil legislation should be added by two registration systems. The first is a system for the registration of contracts that stipulate preemptions over immovable property (or registration of the preemptions itself which is better) provided by the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation. The second is a system for the registration of notifications on the conclusion of contracts that stipulate contractual preemptive rights over movable things that could be established by an expansion of the existing system for the e-registration of notifications оf pledges of movable things under the jurisdiction of the Federal Chamber of Notaries of the Russian Federation.

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Richardson, James T. "Religious Freedom in Flux: The European Court of Human Rights Grapples with Ethnic, Cultural, Religious, and Legal Pluralism". Changing Societies & Personalities 3, nr 4 (6.01.2020): 303. http://dx.doi.org/10.15826/csp.2019.3.4.079.

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This article examines the growing influences of the European Court of Human Rights (ECtHR), and controversies arising as a result of the Court’s movement toward establishing itself as a de facto Supreme Court of member nations of the Council of Europe (CoE) in the area of human and civil rights, including religious freedom. Responses to criticisms of the Court are considered, as is the growing problem of some member states refusing to enforce rulings of the Court. Some recent cases, mostly involving Islam, that seem to demonstrate a growing recognition of the ethnic, cultural, and legal pluralism that exists within the expanded CoE are examined. Also discussed is the apparent two-track approach the Court has taken as a result of having to manage religious freedom within such a diverse group of member nations.

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Turuta, O., i O. Turuta. "Artificial intelligence through the prism of fundamental human rights". Uzhhorod National University Herald. Series: Law, nr 71 (25.08.2022): 49–54. http://dx.doi.org/10.24144/2307-3322.2022.71.7.

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The article analyzes the development of artificial intelligence and its impact on human rights. The ways of introducing artificial intelligence technologies into various spheres of human life are determined. It is considered how different artificial intelligence systems are used today in the world and how they can help and harm society. The analysis of the impact of artificial intelligence on human rights is based on documents widely used in Europe and containing a wide range of human rights, the General Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights, economic, social and cultural rights of 1966 and the Charter of Fundamental EU rights. The misuse of artificial intelligence algorithms creates many problems, such as violation of the right to life, the right to privacy, restriction of freedom of speech and opinion, violation of the right to a fair trial and the presumption of innocence, the right to equal opportunity and non-discrimination, the right to work, etc. Since artificial intelligence technologies use certain data sets, the violation of the rights of certain groups of the population is most often observed. These may include women and children, as well as certain ethnic, racial or religious groups. The article concludes that the introduction of artificial intelligence technologies in various areas of life can qualitatively change them and increase the effectiveness of any human work. However, the rapid development of technology can have a negative impact on human rights. Risks to fundamental human rights stem from the inability to foresee the consequences of such new technology. Governments of the world and companies using artificial intelligence technologies should be aware of the imperfection of the data on which the technology is trained, and take care to prevent discrimination and violations of human rights, be ready to provide timely and effective remedies in cases where decisions made by machines, turn out to be wrong.

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Parra Gómez, David. "Crisis of the Rule of Law in Europe: The Cases of Hungary, Poland and Spain". ATHENS JOURNAL OF LAW 7, nr 3 (1.07.2021): 379–98. http://dx.doi.org/10.30958/ajl.7-3-6.

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Democracy is an instrument at the service of a noble purpose: to ensure the freedom and equality of all citizens by guaranteeing the civil, political and social rights contained in constitutional texts. Among the great principles on which this instrument rests is the division of powers, which consists, substantially, in the fact that power is not concentrated, but that the various functions of the State are exercised by different bodies, which, moreover, control each other. Well, the increasingly aggressive interference of the Executive and, to a lesser extent, the Legislative in material spheres that should be reserved exclusively for the Judiciary, violates this principle and, for this reason, distorts the idea of democracy, an alarming trend that, for some time now, are observed in European Union countries such as Hungary, Poland and Spain. Preventing the alarming degradation of European democracy, of which these three countries are an example, requires not only more than necessary institutional reforms to ensure respect for these principles and prevent the arbitrariness of the public authorities, but also a media network and an education system that explains and promotes these values and principles, that is, one that makes citizens aware of and defend constitutionalism. Keywords: Rule of law; Democracy; Separation of powers; judicial independence; Europe.

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Herts, Alla. "The Peculiarities of Civil-Legal Regulation of Transplantation in Ukraine and Europe". Baltic Journal of European Studies 8, nr 1 (1.06.2018): 33–48. http://dx.doi.org/10.1515/bjes-2018-0003.

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Abstract In modern realities the issue of the quality and accessibility of health services, the cost of medicines, examinations and treatment in general is being increasingly frequently discussed. The attention is focused on such a narrow surgical field as transplantation, because in Ukraine thousands of patients are waiting in line for organ transplantation and very few operations are performed. The main, most secure and common type of transplantation is the transplantation of organs and tissues from a deceased person, the dead body. Cadaveric transplantation, which is used in most developed countries, is hardly carried out in Ukraine. This is due to the fact that the current regulatory base of Ukraine in the field of transplantation does not fully meet the needs of modern medicine and has many gaps. The aim of donation is a future transplantation (including and in cases of blood transfusion and reproductive cells use). The parts (tissues, organs, their parts, individual cells) extracted (separated) from the body in the process of donation can be used generally in the treatment process in a processed form (blood plasma) or in the original state (fertilized reproductive cells). The detailed analysis of the provisions of the national legal system makes it possible to conclude that, despite the absence of direct regulation of relations concerning organ donation and transplantation as material relations, the legal regulations provide the fundamental provisions, which determine their material nature, and therefore offer opportunities for agreementbased regulation. In our opinion, one of the essential legal means of ensuring the rights of participants in the relations of donation and transplantation can be their agreement-based regulation. The peculiarities of civil-legal regulation of transplantation in Ukraine and Europe are simultaneously analysed; and the grounds of its legitimacy are defined.

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Ljubović, Mirza. "The Right to Self-Determination of Peoples through Examples of Åland Islands and Quebec : Recommendations for a Peaceful International Legal Order". Review of European and Comparative Law 53, nr 2 (30.06.2023): 189–207. http://dx.doi.org/10.31743/recl.16229.

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In contemporary public international law, it is increasingly common that in many countries of the world and Europe, political representatives of the peoples are calling for an inalienable right to the external self-determination of the peoples involving secession to try to achieve their independence and autonomy, forming their national states to the detriment of already existing countries in which they are currently living. However, this may cause destabilization and wars in many complex multiethnic states and the European Union. Therefore, the Aland Islands and Quebec cases are extremely important for today’s understanding of the exercise of the right to self-determination of the people in contemporary public international law, in particular as the International Court of Justice in The Hague and the domestic courts invoke them as precedents to address all future cases of reference to the right of the people to external self-determination involving secession. Based on those cases, it has developed that the issue of secession is the question of the internal legal order of each sovereign country, which should deal with this issue through its constitutional legal order, and contemporary public international law should deal with its consequences. In connection with this, it is necessary to investigate and offer answers that will highlight possible abuses of the right to self-determination of all peoples as a collective human right in contemporary public international law. Such unlawful conduct may result in adverse legal consequences, in particular, the violation of basic principles of public international law, including the principles of territoriality and sovereignty of the states, the distortion of world peace and order, economic progress, the rule of law and the pursuit of basic human rights and freedoms, as well as other collective human rights, which may ultimately be the cause of provocation and lead to international and civil wars.

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Votta, Mariano, i Maira Cardillo. "The National Recovery & Resilience Plans According to Citizens’ Perspective: will the EU regain its Leadership in Health? From the Italian Case History to the XVI European Patients’ Rights Day". Clinical Research and Clinical Trials 5, nr 2 (14.01.2022): 01–05. http://dx.doi.org/10.31579/2693-4779/074.

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Healthcare, well-being, and a healthy lifestyle are vital for all of us. In this regard, the engagement of European citizens is key to improve the health system and it is necessary to provide a leading role to the people, the communities, intermediate bodies such as Patients' Advocacy Groups (PAGs), citizens organizations involved in healthcare issues and, more generally, to all actors that promote health as a common good. European institutions struggle to translate into concrete actions the many times highlighted principle relating to the involvement of actors of the civil society and PAGs in the management of health issues. The need to close the gap between the principles affirmed and the real involvement is even more serious when discussing about the management of serious cross-border threats to health. In line with its standing point, the civic organization Cittadinanzattiva [1], being deeply involved in health issues that promote civic participation in the policy-making activities both at the national level in Italy and, through its EU branch Active Citizenship Network (ACN) [2], also at the EU level, is working – of course not alone – to promote civic participation in the drafting and implementation process of National Recovery and Resilience Plans (NRRPs), with relevant political goals already achieved. As the Conference on the Future of Europe (CoFoE) [3] is approaching, emphasizing the great contribution of civil society to the success of the EU recovery plans is urgent and essential, now more than ever.

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Afanasiev, S. F. "About Legal Policy in the Field of Formation and Implementation Online Dispute Resolution Mechanisms in Civil and Administrative Court Proceedings". Courier of Kutafin Moscow State Law University (MSAL)), nr 12 (17.03.2022): 98–105. http://dx.doi.org/10.17803/2311-5998.2021.88.12.098-105.

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The article analyzes the legal policy of the countries of the Council of Europe in the ﬁeld of the formation and subsequent implementation of new mechanisms for online dispute resolution in civil and administrative proceedings. In this regard, the guidelines for the use of such mechanisms (which are set out in the relevant Recommendations of the Committee of Ministers of the Council of Europe) are discussed in detail in the ﬁeld of access to justice, equality of arms, evidence and evidence, trial and informed decision, as well as the right to review it. ... Attention is focused on the need to ensure the compatibility of such mechanisms with the key principles of a fair trial and eﬀective remedies set out in the case law of the European Court of Human Rights, including the principles of publicity, transparency, directness, oral hearing and equality of persons involved in a case.A separate place is given to the problem of using online dispute resolution mechanisms in Russian civil and administrative proceedings. It is noted that today the domestic legislator, as part of the development of its own legal policy agenda, increasingly integrates innovative digital communication methods into the activities of the subjects of procedural legal relations. In particular, in the near future, along with video conferencing, the legislator will allow courts of general and arbitration jurisdiction to use web conferencing as an authentic technology for organizing online meetings and collaboration in real time via the Internet. All this creates a fertile ground for borrowing the positive world experience of introducing the latest mechanisms for online resolution of civil and administrative cases by the justice authorities, taking into account the inviolability of high standards of a fair trial.

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Romtsiv, O. I. "International legal mechanisms for the protection of human rights and freedoms in times of war: the practice of the ECHR". Analytical and Comparative Jurisprudence, nr 6 (27.12.2023): 168–72. http://dx.doi.org/10.24144/2788-6018.2023.06.29.

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The issue of human and civil rights and freedoms is an integral part of the problems of the real human situation in society and the State. Never before have the issues of human and civil rights and freedoms been raised as acutely as they are today in connection with Russia's full-scale invasion of Ukraine. The international community is on the side of Ukraine, the inviolability of its territorial integrity, and most importantly, in defense of human rights as the highest social value in the country. Also, after the armed aggression of Russia and its full-scale invasion of Ukraine, ensuring international security has become a major issue of the day. As an independent, legal and social state, Ukraine is particularly interested in protecting human rights and freedoms. Currently, there are many international bodies that monitor the observance of human rights and freedoms and protect these rights, including courts and tribunals. They are divided into universal, i.e. those that operate at the UN level, and regional (European, American, African, Asian and others). For a detailed study of this issue, the author has researched and analyzed international standards of human and civil rights and freedoms, in particular, the case law of the ECHR in favor of Ukraine in the human rights protection system from 2014 to the present. As of February 21, 2023, the following interstate cases were pending before the ECtHR: the «Crimean case» related to the annexation of Crimea by Russia; the case of human rights violations in the occupied territories of Donbas, which includes the complaint about the downing of Malaysian flight MH-17 filed by Ukraine and the Netherlands; the case of violations of the rights of Ukrainian political prisoners; the case of the seizure of Ukrainian sailors and vessels in the Kerch Strait in 2018. the case of crimes committed by the Russian military during the full-scale invasion of Ukraine. However, it is worth noting that on September 16, 2022, Russia finally withdrew from the European Convention for the Protection of Human Rights and Fundamental Freedoms. This was the result of Russia's expulsion from the Council of Europe. The European Court of Human Rights has finally lost jurisdiction over Russia, and the consideration of thousands of complaints against it has been called into question, including those filed by Ukraine.

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Balamush, M. A., i M. I. Lazarieva. "COMMISSIONER IN CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS AS A PUBLIC SERVICE SUBJECT". Constitutional State, nr 49 (18.04.2023): 39–48. http://dx.doi.org/10.18524/2411-2054.2023.49.276020.

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The article defines and substantiates the legal statu of the Commissioner in the cases of the European Court of Human Rights according to the criteria and classifications presented in scientific sources. It has been established that the system of public positions, whose activities are aimed at ensuring and realizing the rights and freedoms of man and citizen in Ukraine, has not yet received a comprehensive and comprehensive study. Most institutes in this field work separately and unconsolidated. It was found that the rapid development of national legislation in the field of public service demonstrates, on the one hand, the European integration aspirations of our state to create an effective system of managers who solve problems both at the national and municipal levels, and on the other hand, the desire to consolidate all European innovations in the national legislation and the public service of Ukraine without any scientific (systemic) justification of their place and role in the already existing national system of public power. The analysis of the provisions of the current legislation on public service and scientific sources, which are devoted to the types of public service and the status of public servants in the system of executive authorities, made it possible to conclude that the position of Commissioner for the cases of the European Court of Human Rights belongs to political positions in the system of executive authorities. This is caused by the following factors: 1) the legal status of the Commissioner in the cases of the European Court of Human Rights does not correspond to the characteristics and requirements that are inherent and put forward to civil servants, persons in the patronage service and professional service; 2) the legislator has repeatedly equated the status of the European Court of Human Rights Commissioner with the status of the Deputy Minister of Justice of Ukraine, who is recognized by the Law of Ukraine “On Central Bodies of Executive Power” as a political employee in the system of bodies of executive power. It is proposed to enshrine the following definition in the national legislation: “The European Court of Human Rights Commissioner is a person who holds a political position in the Ministry of Justice, who is entrusted with the authority to represent Ukraine in the European Court of Human Rights during the consideration and resolution of cases of violations of the Convention on the protection of human rights and fundamental freedoms, on the coordination of the implementation of decisions of the European Court of Human Rights and on informing the Committee of Ministers of the Council of Europe about the progress of its implementation”.

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Visontai-Szabó, Katalin. "A gyermek jogainak érvényesülése a magyar polgári eljárásban". Erdélyi Jogélet 3, nr 1 (26.10.2020): 85–110. http://dx.doi.org/10.47745/erjog.2020.01.07.

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The status of children, and their role have both undergone significant changesall over the world in the past half century. The rights and vulnerabilities of the child are now the subject of increased attention in all fields, including in the framework of the judicial process. Today, the notion of child-friendly justice is not unknown in Hungary although it is yet to be decided if the proper term is child-friendly or child-centred. The means of ensuring that the rights of the child are respected are common to all procedures; however, the traumas and adverse experiences they may have found themselves subjected to are widely diverse in civil cases (usually the establishment of parental supervision), criminal cases (usually crimes where the victim is a child), and in procedures specific to the tutelage authority; so, the question deserves examination in view of such specificities. The adoption of the New York Convention was a significant milestone in the domain of the rights of the child; however, laying down the theoretical foundations was only relatively slowly followed by a dynamic of development in practice, and that took place with a wide degree of variability in different fields. In Europe — as in Hungary —, the participation of the child during the procedure meant the same as a hearing when the child is addressed questions. Today we know that Laura Lundy was right when in several of her studies she drew attention to the fact that true participation is more than simply asking the child questions. In my research, I set myself the task to create a type of catalogue for the procedural rights of the child and to answer the question: what more can we do that has not yet been done in order to avoid transforming participation in a procedure into a burden, or even worse, a trauma for the child, but instead making it the reflection of a plenitude of rights, a defining but not uncomfortable experience?

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Akulov, Yu. "LEGAL REGULATION FOR THE RESTRICTION ON PROPERTY RIGHTS TO WORKS IN UKRAINE". Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, nr 111 (2019): 5–8. http://dx.doi.org/10.17721/1728-2195/2019/4.111-1.

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The article analyses specific issues on the legal regulation in the sphere of restriction on the author's property rights to literary and artistic works in Ukraine through European and international prism. The author examines the legislation of Ukraine, international and European regulatory sources for the purpose of regulating directly the cases of lawful free use of literary and artistic works of the author and the restriction on his prop- erty rights to literary and artistic works, as a result of his intellectual activity. The purpose of this study is to determine the specifics of legal regulation in the sphere of restriction of property rights to works in Ukraine. The philosophical, general-scientific and special-scientific methods of cognition have been used in the work, including comparative-legal method, struc- tural-functional, deductive, as well as methods of analysis, generalization and analogies. The author has found the basic inaccuracies and gaps in the legal regulation for of the restriction and free use of works as an object of copy- right. The author proves that the Ukrainian legislator did has not harmonized the provisions of the Law of Ukraine "On Copyright and Related Rights" with the provisions of the Civil Code of Ukraine. Thus, the article shows that the use of such concepts as "free use of works", "restriction of property rights", "exceptions and restrictions on property rights", "legitimate use of a work without the consent of the author" are not in line with international practice. The author draws conclusions on the improvement of the legislation to avoid these problems. The implementation of Europe- an practice in the legislation of Ukraine is also highlighted. The results of the study can be used for further research in the field of copyright, including comparative copyright. These proposals may be applied to improve current intellectual property law.

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Borovska, І. А. "Peculiarities of the procedural form of simplified claim proceedings in civil judiciary". Uzhhorod National University Herald. Series: Law, nr 65 (25.10.2021): 90–96. http://dx.doi.org/10.24144/2307-3322.2021.65.16.

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The article is devoted to the study of the institute of summary proceedings in civil proceedings, namely the legal nature of summary proceedings, the peculiarities of its procedural form and coverage of certain issues related to the implementation of the principles of civil proceedings during the consideration and resolution of cases in summary proceedings.The article considers doctrinal provisions on optimization of civil process by differentiation of procedural form of civil proceedings and introduction of simplified court procedures, international tendencies of its development in the corresponding direction, theoretical and applied scientific approaches on isolation of specific features of procedural form of simplified proceedings in relation to general comparative analysis of the legal regulation of the procedure for consideration of “small disputes” in the legislation of the Council of Europe, as well as prospects for further reform of domestic civil procedural legislation in the field of implementation of simplified court procedures.In the context of the issue of differentiation of the procedural form of civil proceedings, the criteria for distin-guishing between general and simplified procedure for consideration of civil cases in legal proceedings are defined, namely: the amount of claims (the price of the claim); subject of the claim (case category); the complexity of the case and the priority of its speedy resolution for the parties. The civil procedural legislation and scientific achieve-ments on determination of the category of cases which are subject to consideration by way of the simplified claim procedure are analyzed and the conclusion on possibility of assignment to them of requirements on which the court order can be issued is made.In view of the above, it was found that one of the features that characterizes the simplified claim proceedings in contrast to the general claim proceedings is the ability to consider claims that are indisputable in the existence of the following conditions: 1) claims that a person may order (the list of such requirements is exhaustive); 2) realization by the person of the right of an alternative choice of a type of civil proceedings in the order of which the corre-sponding requirements will be considered – the address of the person to court in the simplified claim proceedings.In terms of the court’s decision on the case in a simplified procedure, taking into account the specifics of its pro-cedural form, considered the scientific views and case law (conclusions) of the European Court of Human Rights on the implementation of sectoral principles of civil proceedings, including proportionality, discretion, adversarial and the generally accepted principle of civil procedure – the right to a court in the event of a court hearing without the participation of the parties.Based on the results of the study, conclusions were drawn.

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Belikova, A. "Certain aspects of the application of individual and general measures in the execution of ECtHR judgments against Ukraine in family cases". Uzhhorod National University Herald. Series: Law 1, nr 76 (14.06.2023): 135–40. http://dx.doi.org/10.24144/2307-3322.2022.76.1.20.

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The article examines separate aspects of taking measures of an individual and general nature in the implementation of decisions of the European Court of Human Rights against Ukraine in family matters. Attention is paid to some features of the implementation of such decisions, in particular: the presence of the final decision of the Court as the status of an executive document; the introduction of a special procedure for the execution of the decision of the ECHR: application for execution by the state in the person of the representative body, payment of compensation to the debtor, adoption of additional measures of an individual and general nature, the obligation of the state to execute the decision of the Court in favor of the person (claimant) at the expense of the state budget; the existence of administrative, civil or criminal liability for non-implementation or improper implementation of the ECtHR decision; application of the supervisory mechanism of the Committee of Ministers of the Council of Europe in case of failure to comply with the Court's decision. The Court's decision is subject to enforcement if it has the status of final in accordance with Part 2 of Art. 44 of the Convention on the Protection of Human Rights and Fundamental Freedoms. The process of execution of the Court's decision, according to Art. 1 of the Law, provides for the taking of two types of measures: individual - payment to the debt collector of compensation for damage caused by the violation of the right guaranteed by the Convention, as well as restoration of the violated right, if possible (additional measures of an individual nature); of a general nature, aimed at eliminating violations of the Convention established by the Court's decision and deficiencies of a systemic nature. The components of individual and general measures as the main mechanisms and the expediency of their adoption in the procedure for the execution of decisions of the European Court of Human Rights are analyzed. Fair satisfaction is singled out as a payment to the claimant of compensation, which includes material and moral damage and other monetary expenses. The legal grounds for taking general measures are given, the essence of which is to solve the systemic problem and its root causes, which led to the violation of the applicant's rights, and were recognized by the ECtHR as contrary to the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. The research was carried out taking into account the decisions of the European Court of Human Rights and the Grand Chamber of the Supreme Court, which confirm the expediency and effectiveness of adopting measures of an individual nature.

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Havrik, R. "To the question of the peculiarities of the protection of family rights of persons who are married or other family unions in the practice of the european court of human rights". Uzhhorod National University Herald. Series: Law, nr 63 (9.08.2021): 119–23. http://dx.doi.org/10.24144/2307-3322.2021.63.21.

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In the scientific article the author conducted a scientific study of the protection of family rights of persons who are married or other family unions in the case law of the European Court of Human Rights, in particular such family unions as de facto marriage, separation, civil partnership, we come to the following conclusions. This legal status is recognized by the European Court of Human Rights as conferring the right to protection against interference with family life, ie it is a family, similar to how a family arises as a result of a registered marriage. In this case, according to the court, the concept of "family" includes the actual family relationship, when the parties live together outside of marriage. A child born as a result of such a relationship is a member of the family from birth and due to the fact of birth. There is a connection between a child and his or her parents that is equivalent to family life, even if at the time of his or her birth the parents no longer lived together or their relationship has ended. Cohabitation is usually a prerequisite for family life, but in exceptional cases, other factors may indicate that specific relationships are stable enough to be considered as actual family ties. Another type of family union - marriage during the period of separate residence of the spouses, in the case law of the European Court of Human Rights is somewhat weak and usually concerns the possibility to use the procedure of separation, but the court recognizes that the spouses have an inalienable right to initiating such a procedure. Until 2010, the European Court of Human Rights generally showed a rather restrained attitude towards this type of relationship as same-sex, not recognizing them as family, but after 2010, given the rapid liberalization of the prevailing public morality regarding same-sex relations in Europe, the European Court on human rights could not deny that the relationship of such couples is essentially "family life".

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Senyuta, I. Y. "Arbitration in Medical Cases in Ukraine". Medicne pravo, nr 2(22) (25.09.2018): 41–49. http://dx.doi.org/10.25040/medicallaw2018.02.041.

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Current political and legal conditions caused by the medical reform implementation, transformation of legislation, and increased activity of patients to protect their rights, have given rise to the need to find the best forms, methods and means of protecting human rights in the field of medical care. The Council of Europe recommends the governments of member states to ensure that patient safety becomes a cornerstone of all relevant healthcare strategies and defines that, while people can make mistakes in all areas of activity, they can turn those mistakes to experience in order to prevent their repeating, and medical professionals and medical organizations that have reached a high level of security have the potential to recognize errors and learn to avoid them. Given the risky nature of the provision of medical care, it is not always possible to achieve the desired result, as well as the inadequate provision or non-provision of medical care can be harmful to the patient's life and health. According to the practice of law enforcement and the current state of development of these relationships, the patients themselves are more vulnerable and their rights are most often being violated. Given the modern period of medical and legal practice implementation, attention should be drawn to arbitration as an out-of-court jurisdictional form of protecting the subjects’ to legal relations rights in the provision of medical care. Although the arbitral tribunal does not belong to the judicial system, while being a quasi-judicial authority; however, this form is considered to be jurisdictional, since it is a special non-governmental authorized body created to resolve disputes arising from civil and commercial relations. The Constitutional Court of Ukraine notes that the arbitration of disputes between the parties in the field of civil and commercial relations is a kind of non-governmental jurisdictional activity, which arbitration courts conduct on the basis of the laws of Ukraine, including, in particular, the methods of arbitration. In performing the functions of protection, arbitral tribunals do not exercise justice, but arbitration of disputes. The peculiarity of this method of protection is that, on the one hand, it has similar features with state justice (for example, in the aspect of the adoption of binding decisions), but at the same time it is similar with extrajudicial forms of non-jurisdiction, as, in particular, mediation (however, there is a significant difference between them: the mediator does not make decisions, but only contributes to the decision making by the parties). One of the major issues in the scope of the study is the question of the possibility of referring subjects to medical legal relations medical to an arbitration tribunal to resolve disputes arising from the provision of medical care. The criteria for the jurisdiction of arbitration courts include: a) the nature of the controversial legal relationship: arbitration court subordinate cases of civil and commercial relations; b) the subjects of controversial legal relations: legal entities and/or individuals; c) the existence of an arbitration agreement between the parties to the dispute. Novadays, both in national and foreign legal practice, medical arbitrations have been established and operate. In 2009, the first and only Permanent Court of Arbitration was established at the All-Ukrainian Public Organization "Foundation for Medical Law and Bioethics of Ukraine". The purpose of this specialized court is to ensure fair, speedy and effective arbitration of disputes arising from healthcare legal relations and reconciliation of parties to the dispute. However, this court has not yet considered a case due to a number of factors, such as: 1) the lack of legal awareness of the subjects to medical legal relations regarding the possibility of resolving the case through an arbitration court; 2) low level of legal culture of subjects of legal disputess, generating judicial way of disputes resolution as the only possible option; 3) the introduction of amendments to the Law of Ukraine "On Arbitration Courts" in the aspect of excluding from the jurisdiction of arbitration courts disputes related to the protection of consumer rights, including those in the sphere of medical services. The experience of foreign countries in this aspect is positive. Thus, Arbitration Court for Health Insurance and Health, which is a specialized arbitration in healthcare issues, operates at the St. Petersburg Chamber of Commerce and Industry. It is a self-standing permanent authority that resolves disputes arising from civil legal relations between actors and participants in the health insurance system and the healthcare system in St. Petersburg. In the United States, there is the Federal Arbitration Law that encourages the use of arbitration in all matters, if the agreement contains a clause on arbitration. Most states have adopted relevant legislation that regulates health arbitration and imposes special requirements for arbitration agreements. National Medical Arbitration Commission under the Ministry of Health, which exercises medical arbitration and aims to resolve disputes between a doctor and a patient using alternative ways of resolving conflicts, operates in Mexico. All employees and experts are fully funded at the expense of state budget. The Commission is an official body authorized to provide, at the request of judges, expert opinions, which may in future be the basis for judgements. In order to resolve a dispute, whether through the application of a conciliation procedure or arbitration, both parties need to agree that the case would not be tried in court and that the purpose of the Commission's work is not limited to imposition legal liability to a doctor. The Commission is not a judicial body, therefore, it cannot impose penalties, but only gives the parties the opportunity to make reparations under contract. Taking into account the above, the institute of medical arbitration in Ukraine is worth implementation, as the number of medical cases increases and more and more individuals apply for the protection of violated rights in healthcare system. Advantages of resolving disputes that arise in the provision of medical care in arbitration courts are: 1) simplification of the trial procedure; 2) short terms of consideration of the case; 3) possibility of choosing a judge; 4) preservation of confidentiality; 5) freedom to establish rules of arbitration; 6) voluntary involvement in the arbitration process; 7) synthesis of discretion, which is covered by the review procedure, and the imperativeness due to the binding decision of the parties. Functions of medical arbitration are the following: a) protective: protection of rights of subjects of legal relations in the field of medical assistance; b) controlling: it is the component of healthcare quality management system; c) educational: enhancement of legal culture and legal awareness of the subjects of medical legal relations, as well as promotion of confidence in arbitration proceedings. Taking into account foreign experience and national legal regulation, and according to the specific nature of legal relations in the field of medical assistance and the task of arbitration proceedings in defense of non-proprietary rights, it would be advisable to make modifications to reduce the scope of subordinate prohibitions for arbitration, in particular, in cases concerning disputes in the field of consumer rights protection, identifying only those categories that would be banned (the cases for medical services consumers’ rights protection should not fall into scope of such limitation), as well as conducting spectral work on increasing the authority of the arbitration proceedings and the level of competence of arbitrators. Also, it should be noted that tort cases can be subject to arbitration in case entering into agreements (arbitration agreements) between the creditor and the debtor in order to achieve the purpose of the obligation: the reimbursement of the harm done to the victim.

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Karamanukyan, D. T., i P. Chvosta. "The Right to a Fair Trial in the Area of Russian and Austrian Public Law". Siberian Law Review 19, nr 1 (25.04.2022): 91–108. http://dx.doi.org/10.19073/2658-7602-2022-19-1-91-108.

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The research paper examines the legal category of procedural (proceedings) law “Right to a Fair Trial” as a fundamental element of the European Human Rights Convention and the judicial practice of the European Court of Human Rights. The Authors concentrate mainly on the general part of Article 6 and focus on crucial aspects of the mentioned right which have become significant for the daily legal practice in the Russian Federation, Republic of Austria and other member states. In the domestic Russian legal doctrine, there are sectoral and international legal studies devoted to the Convention for the Protection of Human Rights and Fundamental Freedoms, the functioning of the European Court of Human Rights and the legal nature of its acts (A. Abashidze, E. Alisevich, M. Biryukov, S. Kalashnikova,V. Tumanov, K. Aristova).Along with this, from the standpoint of conventional rights, Russian legal scholars studied the procedural features of the implementation of acts of the European Court of Human Rights and the application of conventional norms in civil, arbitration and criminal cases (I. Vorontsova, T. Solovieva, M. Glazkova, S. Afanasiev, L. Volosatova, E. Iodkovsky, K. Mashkova, etc.).The private-scientific research methods used by the Authors in the presented scientific article, predominantly comparative, require the study of the works of foreign scholars in the field of law, which include P. Leanza, O. Pridal, D. Spielmann, V. M. Zupancic, H. Mosler, A. Buyse. Despite the rather large volume of doctrinal sources on the nature and implementation of conventional rights, the issues of applying the right to a fair trial in administrative disputes and cases arising from public law relations have not become the subject of scientific research. The empirical basis of the study conducted by the Authors is composed of 66 pilot judgments and other acts of the European Court of Human Rights on complaints from individuals against Russia, Austria, France, Finland, the Netherlands, Great Britain, Switzerland and other member states of the Council of Europe; judicial acts of the courts of Russia, Austria and other European countries. It is concluded that the practice of Article 6 of the European Human Rights Convention by the European Court has had a remarkable and sometimes unprecedented impact on public law and law enforcement activities of the European countries that are parties to the Convention. As Russian and Austrian experience shows, the decision of the European Court on behalf of the enforcement of Article 6 in one specific case can induce the state not only to adopt a separate law, but also to carry out serious institutional changes. Many such examples are given below by the Authors, which testify that the decisions of the European Court are able to act as a powerful law-forming force on the national level.

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Kopeček, Michal. "The Socialist Conception of Human Rights and Its Dissident Critique". East Central Europe 46, nr 2-3 (22.11.2019): 261–89. http://dx.doi.org/10.1163/18763308-04602006.

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Much has been written about human rights language as a keystone of democratic dissent in Eastern Europe as well as about its damaging impact on the communist dictatorships—the so called “Helsinki effect.” This article analyzes the less familiar criticism of the core of the socialist theory of human rights and discusses whether this criticism proved to be particularly damaging for the socialist regimes’ legitimacy, self-esteem, and international standing, leading to their defensive stance in this sphere. Simultaneously, it will question, to some extent, the prevailing and rather one-sided “liberal” reading of dissident human rights theory itself. With this aim in mind, the article begins with the specific “developmental” socialist conception of human rights elaborated in the 1950s and the 1960s by prominent legal scholars and philosophers such as I. Szabó and I. Kovács, and outlines how this theory served as a tool of self-confident state socialist human rights politics in the first decades of the Cold War. Second, it will follow the diverging paths of this socialist human rights theory during the period of consolidation and the authoritarian turn in the late 1960s and the 1970s. Third, the article turns to some of the 1970s–80s dissident criticism of human rights abuses in communist countries. It will focus not on the best-known cases, which serve to emphasize encroachments upon civil and political rights and freedoms, but rather on critical approaches (like those of J. Tesař, J. Šabata, O. Solt, M. Duray, or the Solidarity’s Charter of Workers Rights) directed at the heart of the socialist theory of human rights, that is the abuses and unfulfilled promises in the area of social, economic, and—prominently in the Hungarian case—cultural rights.

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Laffranque, Julia. "The Ombudsman in the Eyes of the European Court of Human Rights". Juridica International 29 (31.12.2020): 95–107. http://dx.doi.org/10.12697/ji.2020.29.09.

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While the work of an Ombudsman (whether a national or the European Ombudsman) and the European Court of Human Rights might seem relatively different, the rule of law, democracy, transparency and access to documents, issues such as migration, and many more fundamental rights-related topics are at the focus of both institutions. The common goal for both, Ombudsmen in Europe and the Court, is to guarantee flawless protection of human rights. The article, via a thus-far unique closer look at the ECtHR case law related to Ombudsmen with regard to institutional, procedural, and substantial issues, examines how Ombudsmen and the Court can contribute, in co-operation with each other, to more effectively serving that common goal. Beyond the particularities of each specific case, the jurisprudence of the ECtHR does not consider the Ombudsman institution to be an effective remedy in general within the meaning of Article 35, §1 ECHR. Neither does a complaint to the Ombudsman usually constitute an effective remedy for the purposes of Article 13 ECHR, except in certain exceptional scenarios of fact wherein judicial remedies are unavailable. There may one day be a necessity to accept the Ombudsman as an applicant in a case before the ECtHR on behalf of the victim of a human rights violation. It would be welcomed to encourage Ombudsmen to intervene as a third party before the Court. The Ombudsman can in certain situations go further and make human-rights-friendly interpretations even if the situation does not in itself represent a violation of the minimum standards set by the ECHR. The conditions for a fair trial as stated in Article 6 ECHR and the case law of the ECtHR are applicable to the procedure before the Ombudsman if the latter determines the applicant’s civil rights and obligations, including (to a certain extent) dealing with administrative cases as covered by the case law of the ECtHR under Article 6 ECHR, and possibly in cases in which the Ombudsman could in some way determine criminal charges. On one hand, Ombudsmen use the case law of the ECtHR in their work and play an important role in enforcing the principles of the ECtHR judgments in practice. On the other hand, the ECtHR uses the work done by Ombudsmen in its judgments. References to findings of Ombudsmen are made (although mostly in the facts part, on a few occasions also under the findings in the judgments of the Court). In these cases, the Court is indirectly giving the Ombudsman’s work legal value. Ombudsmen should be not only a bridge between citizens and administration but also an intermediary between citizens and other human rights protection bodies in Europe. It is vital to strengthen the dialogue between the Ombudsmen and the ECtHR. Human rights are not a luxury, and the independence of Ombudsmen and courts is not their privilege but serves those who are searching for justice. Neither should one forget the ‘middle class’: the ordinary people who need protection, not only the weak and those belonging to minority groups. It is important that Ombudsmen and the Court also contribute to the development of human rights culture and raise human rights awareness.

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Boschainen-Duursma, H. Ch, i I. Izarova. "ORDER FOR PAYMENT PROCEDURE IN AUSTRIA AND UKRAINE: COMPARATIVE STUDY". Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, nr 109 (2019): 10–14. http://dx.doi.org/10.17721/1728-2195/2019/1.109-2.

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One of the main tendencies in the reform of procedural legislation over the last decades remains ensuring the effective rights protection through the simplification and speeding up of court proceedings in civil matters. The abovementioned ideas have repeatedly been reflected in the final reports of scientific projects, in the recommendations of the Committee of Ministers of the Council of Europe, and have been implemented at the European Union's level in Regulations of Small Claims Procedure and Order for Payment Procedure, as well as to some extent during the reforms of the national legislation of many European countries. Otherwise, the Summarisches Aktenverfahren of Austria is fairly recognized as one of the most successful simplified models for debt recovering within many different countries. Therefore, it seems to be a just base for comparing with the Ukrainian model for the order for payment procedure, which has been amended a lot in the new edition of the Civil Procedure Code 2017. In light of the abovementioned, this article deals with a comparative legal study of the order for payment procedure in Austria and Ukraine, in particular, the grounds and peculiarities of the automated procedure for issuing a court order, as well as the grounds and procedure for transferring the application from simplified to general litigation. The conclusions are drawn regarding the possibility of borrowing the best European practice, in particular, Austrian automative procedure of court order issuing, and further development of the procedural legislation of Ukraine. The author also highlights the necessity of the differentiation of the grounds for order for payment issuing for minimizing the court cases in general and the additional responsibility for the abusing the procedural rights through automatized or electronic order for payment procedure to prevent the violation the rights as Missbrauch des Mahnverfahrens example.

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Salverda, Reinier. "Linguistic Justice and Endangered Languages". Acta Universitatis Sapientiae, European and Regional Studies 9, nr 1 (1.10.2016): 39–47. http://dx.doi.org/10.1515/auseur-2016-0006.

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Abstract This contribution will engage with Van Parijs’s approach to linguistic justice and his working principles for the reduction of unfairness in the language domain (in particular, the need for intervention and his territorial principle), reflecting on a range of cases of multilingual practice and linguistic coexistence – respectively, in the multilingual capital of the world which is London today; in Fryslân, the minority language area in northern Netherlands; and in Europe, through its European Charter of Regional Minority Languages. Overall, my argument, on a theoretical level, is for the further exploration of the relationship between linguistic diversity and human rights in civil society; and, on a practical level, for the development of a World Language Atlas as envisaged by UNESCO, containing vital information on all the world’s languages – an urgently needed basic resource for policy-making, to ensure, especially for the world’s many endangered languages, the linguistic justice and fairness advocated by Van Parijs.

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Rybalkin, Andrii, i Yuliia Nosenko. "Peculiarities of application of the practice of the European Court of Human Rights in the justice in Ukraine". ScienceRise: Juridical Science, nr 2(16) (30.06.2021): 14–17. http://dx.doi.org/10.15587/2523-4153.2021.235130.

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The scientific article examines the activities of the European Court of Human Rights and identifies the significance of the relevant case law of the European Court for the case law of Ukraine. It is noted, that one of the issues, studied within the topic, is the sources and legal framework, which is especially relevant in the adoption of the Law of Ukraine «On Enforcement of Decisions and Application of the Case Law of the European Court of Human Rights», according to which courts use the Agreement and case law as a legal source in cases. The activity of the European Court of Human Rights, the role and impact on the judicial system of Ukraine are analyzed, the relevant examples are given. It is concluded, that the implementation of international human rights law into Ukrainian law is a complex procedure that requires special doctrinal consideration, as today Ukrainian citizens are among the most active complainants to the European Court of Human Rights, which indicates a fairly high insecurity by national legal mechanisms. In order to increase the credibility of the judiciary, courts should take into account the European experience, decisions and observations of the Court in their work. The Court's case law is said to play an important role in the judicial reform process as it approaches the European legal framework for human rights standards in Europe. The current law cannot fully protect a person or build justice if it is not applied properly. Based on existing ECtHR rulings, judges can accurately understand the rule of law and apply it properly, which will help improve human rights, accurate understanding and implementation of the Agreement on Ukraine. Based on the study, it was concluded, that it is necessary and appropriate to implement the decisions of the European Court of Human Rights, as in this way it is possible to ensure the protection and defense of human and civil rights and freedoms

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Rensmann, Lars, Sarah L. De Lange i Stefan Couperus. "Editorial to the Issue on Populism and the Remaking of (Il)Liberal Democracy in Europe". Politics and Governance 5, nr 4 (29.12.2017): 106–11. http://dx.doi.org/10.17645/pag.v5i4.1328.

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Populism has become the issue of comparative political science today. The rise and continuing success of populist parties is by now evident across Europe, despite persistent cross-national variations. Populist parties’ electoral success and their participation in government have raised questions about their impact: not just on established party systems, but also on the systemic core of European democracies. In theory, this impact can be both beneficial for, as well as a challenge to democracy in general, and the tenets of liberal constitutional democracy in particular. The presence of populist parties has, in several cases, increased electoral turnout and public participation, which is generally seen as a positive effect when measuring the quality of democracy. However, populist parties’ rise also points to negative effects. In addition to profoundly reshaping European party systems, they advocate what the populist Hungarian prime minister Viktor Orbán calls “illiberal democracy”. Both as an ideal and as an institutional practice when in government, the illiberal remaking of democracy implies eroding the separation of powers and subordinating constitutionally guaranteed individual civil and human rights to an alleged “general will” and a particular conception of “the people”. The thematic issue explores the ideological supply, favorable conditions, political contexts and dynamics, as well as the impact of the populist surge in Europe in relation to the systemic consolidation of (il)liberal democracy on a theoretical and comparative empirical level.

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Fermeglia, Matteo, i Riccardo Luporini. "‘Urgenda-Style’ Strategic Climate Change Litigation in Italy: A Tale of Human Rights and Torts?" Chinese Journal of Environmental Law 7, nr 2 (14.12.2023): 245–60. http://dx.doi.org/10.1163/24686042-12340108.

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Abstract This contribution addresses the first strategic climate change litigation filed against the Italian State, the Giudizio Universale case. Giudizio Universale’s legal architecture is largely akin to other landmark cases filed in Europe, such as Urgenda in The Netherlands and Klimaatzaak in Belgium. Accordingly, Giudizio Universale is grounded on the state’s breach of international and EU obligations, the encroachment of human rights enshrined in the European Convention on Human Rights and the Italian Constitution, and the consequent attribution of domestic tort liability to the state under the Italian Civil Code. This article thus examines the main arguments raised in Giudizio Universale in light of the underlying domestic human rights and tort liability regimes. It first investigates the interplay between the breach of climate change obligations and human rights infringement as presented in the complaint to understand whether, and to what extent, Italian courts could give deference to an ‘Urgenda-style’ claim. Second, it unpacks the existing interpretation of tort liability as applied to state liability vis-à-vis its citizens by Italian courts. Third, it factors Giudizio Universale in the recent Italian Constitutional reform, which explicitly introduced the protection of the environment, biodiversity and ecosystems, as well as a reference to the ‘interests of future generations’, into the fundamental principles of the Italian Constitution. Overall, the article concludes that several limitations exist in the Italian legal system in the pursuance of strategic climate litigation against the state for its (in)action against climate change. One of the merits of the Giudizio Universale case, however, is that it challenges these limitations to provide another suitable tool for ensuring protection against the climate emergency.

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Piovesan, Flávia Cristina, Regeane Bransin Quetes i Miriam Olivia Knopik Ferraz. "Violações aos direitos humanos dos trabalhadores e os sistemas regionais de proteção". Espaço Jurídico Journal of Law [EJJL] 19, nr 1 (26.04.2018): 87–112. http://dx.doi.org/10.18593/ejjl.v19i1.12848.

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Resumo: Neste artigo teve-se como objetivo a análise da violação dos direitos humanos dos trabalhadores e o papel dos sistemas regionais de proteção. A metodologia foi o exame da jurisprudência do sistema Interamericano, o sistema Europeu e o sistema Africano dentro de uma perspectiva que buscou a análise a partir da universalidade e indivisibilidade dos direitos humanos, bem como de multifuncionalidade e dupla titularidade dos direitos humanos fundamentais. Por meio da análise dos casos que são direcionados à proteção e direitos trabalhistas, observou-se que os sistemas, ainda, não são harmônicos quanto à jurisprudência trabalhista. Os sistemas Interamericano e Europeu fundamentam suas decisões pelos direitos individuais, usando uma interpretação extensiva, permitindo o entendimento da multifuncionalidade, da dupla titularidade e da interdependência dos direitos. No sistema Africano, direitos civis e sociais foram contemplados num mesmo patamar, mas ainda é preciso aguardar uma postura menos formalista do sistema para que conclusões possam ser tomadas. Espera-se que tais sistemas tenham a capacidade de avançar na proteção mais plena e efetiva dos direitos trabalhistas – condição essencial à própria prevalência da dignidade humana.Palavras-chave: Sistema de proteção de direitos humanos. Direitos humanos dos trabalhadores. Direitos sociais. Proteção internacional. Direitos fundamentais. Abstract: The objective of this article was to analyze the violation of workers' human rights and the role of regional protection systems. The methodology was the examination of the jurisprudence of the Inter-American system, the European system and the African system, from a perspective that sought the analysis from the universality and indivisibility of human rights, as well as multifunctionality and dual ownership of fundamental human rights. Through the analysis of the cases that are directed to the protection and labor rights, it was observed that the systems are still not harmonious regarding labor jurisprudence. The Inter-American and European systems base their decisions on individual rights, using an extensive interpretation, allowing the understanding of multifunctionality, dual ownership and the interdependence of rights. In the African system, civil and social rights were on the same footing, but we still have to wait for a less formalist stance of the system in order to reach conclusions. Such systems are expected to have the potential to advance the fullest and most effective protection of labor rights - an essential condition for the very prevalence of human dignity.Keywords: Human rights protection system. Human rights of workers. Social rights. International protection. Fundamental rights.

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Brienen, Marion, Ernestine Hoegen i Marc Groenhuijsen. "Evaluation and Meta-Evaluation of the Effectiveness of Victim-Oriented Legal Reform in Europe". Criminologie 33, nr 1 (2.10.2002): 121–44. http://dx.doi.org/10.7202/004710ar.

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Abstract The 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and the Council of Europe's Recommendation (85) 11 on the Position of the Victim in the Framework of Criminal Law and Procedure are important documents that reflect an international consensus on legal rights for victims. In many European jurisdictions, such victims' rights have been introduced or improved upon. However, they are often not used as intended or remain virtually dormant. The UN has therefore adopted a Resolution and drafted a manual on ways to facilitate effective implementation. In addition, certain jurisdictions have proved sensitive to implementation problems. The Netherlands, for example, put the new Victim Act into effect on an experimental basis in two legal districts to carefully evaluate the effects of new provisions, and to apply the resulting knowledge when expanding its territorial scope. However, more sophisticated instruments are needed to set implementation parameters at a supra-national level. To this effect, we conducted a comparative study of both a legal and empirical nature in 22 member states of the Council of Europe. The study revealed, inter alia, critical factors of failure or success. The workings of these critical factors in the implementation of Recommendation (85) 11 are demonstrated by drawing upon illustrations taken from the reality of certain jurisdictions. The examples are subdivided into four major themes: information, compensation, treatment and protection. As the second guideline of Recommendation (85) 11 expresses, the creation of a formal duty for the police to provide victims with information about the possibilities of obtaining assistance, legal aid and compensation is vital. However, in half of the jurisdictions, no such reform has been implemented. Our study reveals that critical factors of failure are, among other things, a widespread conceptualization of the victim as an alleged victim and the creation of an information duty for the judicial authorities instead of for the police. In jurisdictions where an information duty has been created, failure depends, first of all, on whether the police are content with a symbolic fulfillment of this task. Critical factors needed to improve successful implementation are the creation of organizational incentives, monitoring systems, and systematic referral to victim support, legal aid and social or counseling services. A final step to improve implementation of information duties would be financial compensation earned for victim-related activities carried out by the police and other authorities. Concerning compensation, research reveals that the compensation order, particularly the English one, is more successful than the partie civile model or the Dutch compensation measure. The most important critical factor of success of the compensation order is that it is a penal sanction, enforcable by the state. This means that civil liability is not a prerequisite and that the court can order an amount of compensation it considers appropriate while taking the financial capacity of the offender into account. Furthermore, the court is obliged to consider making a compensation order and to explain why it was not imposed. A critical factor of failure of the partie civile model is that it includes an easy escape clause: claims can be referred to civil court. A critical factor of failure of the compensation measure is that it is a penal sanction governed by civil law. In practice, it resembles the traditional partie civile model: the two are blended into one. The way victims are treated by criminal justice authorities can be improved by providing victim-awareness training. A critical factor of failure is to only train recruits. Training is only effective if it is extended to incumbent personnel. Giving refresher courses and measuring the effects of training in performance assessments are factors contributing to success. A critical factor of failure in such training for judicial authorities is the argument that it would compromise their independence. Critical factors to improve the questioning of victims are the provision of specific training courses and the creation of special facilities, e.g. interviewing studios for children, suites for victims of sexual offences, audio-video recording of pre-trial examinations and video-linked questioning. Such reform measures benefit the quality of the criminal justice process as a whole and therefore prove to be successful. A common manner of protecting victims is to allow that a trial, or a part thereof, be conducted in camera. A critical factor of failure is the (very) reluctant attitude of the judiciary toward holding a trial behind closed doors. A critical factor of success is the creation of a formal duty for the court to hold all cases involving sexual offences in camera. We can conclude that successful implementation of victim-oriented reforms depends on, inter alia, the clarity and conciseness of reform measures, the absence of easy escape clauses, the attitude of criminal justice authorities, and whether the reforms also benefit the offender and/or the criminal justice system as a whole.

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KORZH, I. "Human rights and corruption as manifestation of their violation". INFORMATION AND LAW, nr 4(47) (28.11.2023): 27–39. http://dx.doi.org/10.37750/2616-6798.2023.4(47).291536.

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This article examines the state of implementation and compliance with generally recognized legal principles and norms of international law in the field of fundamental human rights © Корж І.Ф., 2023 and freedoms in Ukraine. It is noted that human rights should be understood as the defining principles of a person’s legal status, which belong to them from birth, are natural and inalienable, without which a person cannot exist as a full-fledged social being, and therefore they are a necessary element of citizens, society and the rule of law. The concept of human rights is based on two basic values – human dignity and equality. Human rights are defined and formalized primarily by international law, which includes a number of basic international legal acts, such as: Universal Declaration of Human Rights; European Convention on the Protection of Human Rights and Fundamental Freedoms and its protocols; Charter of Fundamental Rights of the European Union. Ukraine, which noted its further development in the direction of integration into the EU, formalized the rights of its citizens in the Constitution adopted in 1996, which enshrines a whole series of both traditional and new guarantees of human and citizen rights and freedoms, which allow each citizen to choose the type of his behavior, to use economic and socio-political freedoms and social benefits both in personal and public interests. It is emphasized that the establishment of human rights in Ukraine as the highest social value is complicated by a number of factors, which is mainly determined by the low legal culture of both the general public and civil servants and is confirmed by the fact that for many years Ukraine occupied one of the first places among the member states of the Council of Europe by the number of cases of violation of citizens’ rights that were pending in the European Court. This indicates the existing problems in the state regarding legal education, legal awareness, legal culture, etc. of citizens who are primarily in public authorities, and which manifests itself in the manifestation of corruption, as legal nihilism of citizens. This becomes particularly cynical during the period of fighting against Russian aggression, as evidenced by numerous reports in the mass media. Such manifestations of corruption scandals in the Ministry of Defense of Ukraine, in civil-military administrations, in local self-government bodies, in other state bodies of the country testify to the presence of a deep political and legal crisis in the state administration bodies of the country, as a result of the lack of program documents on the implementation of state personnel policy, inactivity legal mechanisms to fight corruption. Even the Law of Ukraine “On De-Oligarchization” was subjected to devastating criticism not only from the Ukrainian public, but also from the “Western” community. Confirmation of the relevance and importance of the need to solve the problem of corruption in Ukraine is evidenced by the fact that our ally the USA put forward clear conditions for further support of Ukraine in its fight against aggression and aspiration to join the European Union. The future success of Ukraine depends on accelerating the pace of reforms that remain unimplemented and the immediate implementation of identified priority transformations in Ukraine.

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Carmona Cuenca, Encarna. "Derechos sociales de prestación y obligaciones positivas del Estado en la jurisprudencia del Tribunal Europeo de Derechos Humanos // Social Rights of assistance and positive obligations of the State in the case-law of the European Court of Human Rights". Revista de Derecho Político 1, nr 100 (20.12.2017): 1209. http://dx.doi.org/10.5944/rdp.100.2017.20731.

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Resumen:El Convenio Europeo de Derechos Humanos no reconoce expresamente los derechos sociales de prestación (a excepción del derecho a la educación). A pesar de ello, el Tribunal de Estrasburgo ha realizado una interpretación extensiva de los derechos civiles y políticos reconocidos para incluir, de diversas formas, la protección de aquellos derechos. Una de las técnicas utilizadas ha sido la doctrina de las obligaciones positivas del Estado. Aunque el Tribunal ha aplicado esta doctrina, fundamentalmente, a los derechos civiles y políticos, podemos encontrar algunas resoluciones en las que establece determinadas obligaciones positivas estatales para proteger derechos como la protección de la salud, la vivienda, la protección social o la protección de las personas con discapacidad. En general, se trata de reconocimientos generales y poco concretos pero, en algunos casos, ha detallado cuáles son estas obligaciones. Esto lo ha hecho, en primer lugar, en casos en que se habían producido daños cuya responsabilidad era directa o indirectamente del Estado. En segundo lugar, cuando se trataba de personas que se encontraban bajo la tutela del Estado, como las personas detenidas o internas en prisiones. Y, en tercer lugar, cuando los afectados eran personas especialmente vulnerables (discapacitados o pertenecientes a la minoría gitana). Aunque se trata de una interpretación incipiente y poco desarrollada, muestra un camino en el que se debería profundizar en el futuro. Es generalmente admitido que son los Estados quienes deben tener la iniciativa en el diseño y establecimiento de los derechos sociales de prestación pero, en caso de conductas y omisiones estatales manifiestamente contrarias a los estándares internacionales, el Tribunal Europeo debería obligar a los Estados mediante sus sentencias a dictar una legislación o establecer políticas que hagan efectivos estos derechos.El artículo consta de una introducción, cuatro epígrafes de contenido y una conclusión final. En el segundo epígrafe se aborda la cuestión de la problemática justiciabilidad de los derechos sociales de prestación. En el tercero se hace referencia a la doctrina de las obligaciones positivas del Estado en la jurisprudencia del TEDH. En el cuarto se apuntan las principales técnicas que ha utilizado el TEDH para proteger los derechos sociales de prestación y, en particular, la extensión del contenido de algunos derechos civiles y políticos. En el quinto epígrafe se analiza cómo se ha utilizado la técnica de las obligacionespositivas del Estado en la protección de los derechos sociales de prestación y, en concreto, del derecho a la protección de la salud y del derecho a la vivienda.Summary:1. Introduction. 2. The social rights of assistance and its problematic justiciability. 3. The positive obligations of the state in the case lawof the ECtHR. 4. The protection techniques of the social rights of assistance in the case law of the ECtHR. 4.1. General approach. 4.2. Application of the prohibition of discrimination of article 14 ECtHR to certain social benefits. 4.3. Extension of the content of several rights recognized in the Convention. 5. In particular: the protection of social rights of assistance through the doctrine of the positive obligations of the state. 5.1. The right to health protection. 5.2. Theright to housing. 6. By way of conclusion.Abstract:The European Convention on Human Rights does not expressly recognize any social rights of assistance (except the right to education). In spite of this, the Strasbourg Court has made a broad interpretation of recognized civil and political rights to include, in different ways, the protection of those rights. One of the techniques used by the Court has been the doctrine of the State's positive obligations under the ECHR. Although the Court has essentially applied this doctrine to the civil and political rights, we can find some resolutions in which it establishes certain positive state obligations to protect rights such as protection of health, housing, social benefits or protection of people with disabilities. Generally, these are general and not very specific recognitions, but in some cases, they have detailed what these obligations are.Firstly, this has been done in cases where there was damage which was directly or indirectly the responsibility of the State. Secondly, regarding people who were under the protection of the State, such as persons detained or interned in prisons. And, thirdly, when those affected were particularly vulnerable (disabled or belonging to the Roma minority). Although it is an incipient and underdeveloped interpretation, it shows a way in which should be further deepened. It is generally accepted that it is the States that must take the initiative in designing and establishing social rights of assistance but, inthe case of state conduct and omissions that are manifestly contrary to international standards, the European Court should oblige States with their judgements to enact legislation or develop policies to give effect to these rights.The article consists of an introduction, four content epigraphs and a final conclusion. The second section deals with the question of the problematic justiciability of social rights of assistance. The third refers to the doctrine of the positive obligations of the State in the Case Law of the ECtHR. The fourth section outlines the main techniques used by the ECtHR to protect the social rights of assistance and, in particular, expanding the scope of some civil and political rights. The fifth section analyzes the use of the technique of positive obligationsof the State in the protection of social rights of assistance and, in particular, the right to protection of health and the right to housing.

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Sendlmeier, Kilian. "Art. 22(4) Brussels i regulation and its successoronly only apply to cases concerned with the actual registration or validityof the listed ip rights. Commentary on the Judgment of the Court of Justice of the European Union of 5 october 2017, c-341/16 = Artículo 22.4 del Reglamento Bruselas I y su sucesor solo se aplican a los casos relacionados con el registro efectivo o la validez de los derechos de propiedad intelectual enumerados. Comentario de la Sentencia del Tribunal de Justicia de la Unión Europea de 5 de octubre de 2017, c-341/16". CUADERNOS DE DERECHO TRANSNACIONAL 11, nr 1 (11.03.2019): 937. http://dx.doi.org/10.20318/cdt.2019.4668.

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Abstract: The CJEU reaffirms its established case law on Art. 22(4) Brussels I Regulation (No. 44/2001) and interprets the provision narrowly. Courts in member states in which patents, trade marks, designs, or similar rights that are required to be deposited or registered, have jurisdiction only in cases that are actually concerned with the registration or validity of these IP rights. A case concerned with the potential ownership of such rights falls within the general provision of Art. 2(1) Brussels I and, therefore, is to be brought before courts in the member state where the defendant is domiciled.Keywords: Judicial cooperation in civil and commercial matters, Brussels I Regulation (No. 44/2001), Jurisdiction under Art. 2(1) and Art. 22(4) Brussels I Regulation, jurisdiction in proceedings concerned with IP rights, registration of property of a trade markResumen: El Tribunal de Justicia de la Unión Europea mantiene su jurisprudencia establecida sobre el Art. 22.4 del Reglamento (CE) nº 44/2001 de Bruselas I e interpreta este artículo en sentido estricto. Los tribunales de los Estados miembros en los que se exige el depósito o el registro de patentes, marcas, dibujos y modelos u otros derechos similares solo son competentes en los casos en que se la posible titularidad de ese derecho entra en el ámbito de la disposición general del Art. 2.1 del Reglamento Bruselas I y, por lo tanto, debe ser llevado ante los tribunales de aquel estado miembro en el que el demandado esté domiciliado.Palabras clave: Procedimiento prejudicial, Cooperación judicial en materia civil y mercantil, Reglamento (CE) n° 44/2001, Competencia judicial, Artículo 2, apartado 1, Competencia de los órganos jurisdiccionales del domicilio del demandado, Artículo 22, punto 4, Competencia exclusiva en materia detítulos de propiedad intelectual, inscripción como titular de una marca.

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Slyusarenko, Yu A. "Ensuring compliance of laws on lustration with the requirements of a state based on the principle of the rule of law: European standards". Analytical and Comparative Jurisprudence, nr 2 (11.05.2024): 779–84. http://dx.doi.org/10.24144/2788-6018.2024.02.128.

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A range of international acts of a regional nature, which are designed to restore a civilized, liberal state based on the principle of the rule of law, as well as those international acts that regulate social relations arising in the member states of the Council of Europe during the purge of power, have been identified. Resolution of the Parliamentary Assembly of the Council of Europe No. 1096 (1996) "On measures aimed at eliminating the legacy of former communist totalitarian regimes” was analyzed. Attention is focused on such negative phenomena, which are indicated in it and which, despite the fact that regulatory and organizational and legal mechanisms for the purification of power were created, could not be eradicated, which led to threats to the newly created democracy. Attention is drawn to the application of procedural means inherent in such a state, as well as to the balance that must be observed in their application, so that a state with a young democracy does not become no better than a totalitarian regime that must be eliminated. It is emphasized that human rights in themselves are a value and rights should be ensured even to those people who, when they were in power, did not observe them themselves. The Guiding Principles for ensuring compliance of lustration laws and similar administrative measures with the requirements of a state based on the principle of the rule of law have been analyzed. The following requirements for the national legislation on the purification of power are singled out: 1) lustration is directed at the following two threats: a threat to fundamental human rights and a threat to the democratization process; 2) prohibition of revenge, including political revenge; 3) prohibited by abuse of the results of the lustration process (including - prohibition of police abuse; prohibition of social abuse); 3) the purpose of lustration is to protect the newly created democracy; 4) creation of a special independent commission on lustration, which includes citizens respected by society; 5) lustration is applied to a subject who holds a specific position and uses this position to commit actions/inactions that pose a threat to the creation of a free democracy - uses the position to violate human rights, block democratic processes; 6) the range of positions to which lustration is applied must be limited; 7) grounds for choosing positions for lustration - civil service positions that involve significant responsibility for defining or implementing state policy and measures related to internal security or civil service positions that involve issuing an order and/or committing a violation of human rights (law enforcement agencies, service security and intelligence, judicial authorities and prosecutor's office); 8) the term of deprivation of office on the basis of lustration - no longer than five years; 9) persons who gave orders, committed or significantly contributed to the commission of serious violations of human rights may be prohibited from holding positions; if a body has committed serious violations of human rights, then it is considered that its member, employee or representative was a participant in these violations, if he held a high position in this body, until he can prove that he did not participate in planning, directing or carrying out such policies, practices or actions; 10) prohibition to subject an official to lustration solely because of membership or activity in favor of any organization that was legal at the time of such membership or activity (except for the cases specified in the previous subparagraph), or because of personal views or beliefs; 11) the possibility of lustration of "conscious employees” who, together with state authorities, really participated knowingly, understanding the consequences, in serious violations of human rights and actually caused harm to other persons; 12) provision of full due process protection to persons subject to lustration. Attention is drawn to the Bangalore principles of the conduct of judges and their correlation with the legislation of Ukraine.

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Leppik, Marelle. "Soolise võrdõiguslikkuse küsimus Eesti Vabariigi põhiseadustes ja riigikohtu praktikas 1920–1940 [Abstract: Gender equality in constitutions and Supreme Court cases in the Republic of Estonia in 1920–1940]". Ajalooline Ajakiri. The Estonian Historical Journal, nr 2/3 (15.01.2018): 341. http://dx.doi.org/10.12697/aa.2017.2-3.06.

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The purpose of the article is to analyse the principle of gender equality laid down in the interwar Estonian constitutions and to study the relevant court cases at the highest level of appeal in the Supreme Court of the Republic of Estonia (1920–40). When Estonia granted equality rights with the constitution of 1920 and all citizens, men and women alike, were declared to be equal before the law, it placed Estonia among the vanguard of nations in Europe in support of gender equality. The amendment of the constitution in 1933 left the equality principle unchanged. In the new constitution, which went into effect in 1938, gender equality was extended to relations in marriage as well. In the twentieth century, the focus was not on the equality of genders as such, but rather on women’s equality compared to men, and the main question was how to improve women’s rights to gain the equality promised in the constitution. On 1 September 1924, the Grand Chamber of the Supreme Court made a judgment which could be considered the first important court case about women’s rights in Estonia. The Supreme Court issued a complaint submitted by a female lawyer, who challenged a lower court judgement that she – as a woman – was not suitable to be appointed to the position of judge candidate. According to the Supreme Court, the only constitutionally uniform solution that would support gender equality was that all persons – men and women – on the same grounds had the right to become a judge candidate and enter the judiciary in Estonia. However, the court system of the interwar independent Republic of Estonia remained traditionally masculine without any female judiciary, which is in turn indicative not so much of legal, but rather of pragmatic questions about social attitudes. The exploration of tensions in society engendered by the ambition to bring women into positions of authority and to grant women rights in the private family sphere as well, leads to two main conclusions. First, despite the formal equality that was granted by both constitutions of the Republic of Estonia adopted in 1920 and 1937, women’s efforts, e.g. opening the judiciary to women, were met with a degree of ironical resistance, and general emphasis on women’s rights even drew attention to presumable positive discrimination as well. Estonia’s foreign minister Ants Piip wrote an article in the magazine Constitutional Review about the first constitution of the Republic of Estonia in 1925: “It is interesting to note that despite this provision, many laws exist which protect women in industry, thereby discriminating favourably against men.” Since both the 1920 and the 1937 constitution granted gender equality in public, not in the private sphere, the traditional gap between women’s legal position and that of men generally remained unchanged in private family law. Thus, the Civil Chamber of the Supreme Court of the Republic of Estonia confirmed in 1937 that it was in accordance with the principle of gender equality to restrict the possibilities for married women compared to men to make a testament without any mandatory advisor. According to the court’s reasoning, the regulation was constitutional because the law of succession and the right to make a testament belonged not to the public but to the private sphere. Thereafter, female lawyers drew attention to the fact that a married woman could legally become a judge or a minister – at least it was not prohibited or excluded – and decide the fate of a nation, since this right belonged to the public sphere. And still at the same time, a married woman’s competence to transact in the private sphere was limited compared to men. However, the constitution that went into effect in 1937 brought some changes, since equality in marriage was additionally granted, for instance. Unfortunately, the implementation period of the new constitution was limited to about two years, thus there is no case law to confirm that the constitution brought specific changes in practice.

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Kuczyńska-Zonik, Aleksandra, i Peteris F. Timofejevs. "The challenge of Populist Radical Right Parties to Europeanization – the cases of Estonia and Latvia, 2018-2021". Rocznik Instytutu Europy Środkowo-Wschodniej 19, nr 3 (grudzień 2021): 143–75. http://dx.doi.org/10.36874/riesw.2021.3.7.

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Over the last two decades, family law has undergone changes in Western Europe, widening the definition of marriage to include same-sex couples. In addition, some East European countries offer a legal recognition of civil unions of same-sex couples, while others do not offer any legal recognition at all. This diversity in family law has been recently challenged by developments at the European level. It is argued here that this constitutes an adaptational pressure on those European Union (EU) member states that do not offer any or offer only formal recognition of same-sex couples. We examine two cases when member states faced such an adaptational pressure, namely Estonia and Latvia, focusing on the interplay of two types of factors. First is that of formal institutions which, due to their constitutional role or their expertise in the EU law, may act as facilitators of legal changes. On the other hand, there are also political actors which have tried to constrain such an adaptation. We examine here especially the role of two political parties which have made a considerable effort to oppose the change in the two countries. It is argued here that the ideological orientation of these parties explains, at least partly, their opposition to the ongoing Europeanization of family law. The paper concludes with a discussion of the main findings and their implications.

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Bryant, Chad. "Either German or Czech: Fixing Nationality in Bohemia and Moravia, 1939-1946". Slavic Review 61, nr 4 (2002): 683–706. http://dx.doi.org/10.2307/3090386.

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In this article Chad Bryant examines how Nazi and postwar Czechoslovak officials defined and ascribed nationality in the Bohemian crownlands. Specifically, Bryant looks at how officials struggled to come to terms with so-called amphibians—people who could switch public nationality or whose nationality was unclear. Amphibians challenged officials to define what they meant by “Czech” or “German.” Although the definitions of what made a Czech or a German became increasingly absurd, confused, and contradictory from 1939 to 1946, officials continued to mark individuals as either Czechs or Germans, thus eliminating “amphibianism.” The state had now assumed the sole authority over the ascription of nationality in die Bohemian crownlands. The individual’s right to choose a public nationality—a fundamental aspect of prewar civil society—had been stripped away. The article ends with a glance at other European cases, and a suggestion for future studies of nationality politics in Europe during an era of unprecedented displacement and violence.

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Dremliuga, Roman, Pavel Kuznetcov i Alexey Mamychev. "Criteria for Recognition of AI as a Legal Person". Journal of Politics and Law 12, nr 3 (20.08.2019): 105. http://dx.doi.org/10.5539/jpl.v12n3p105.

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This question of AI legal personhood is mostly theoretical today. In article we try to generalize some common ways that existing in legal theory and practice. We analyze some cases of recognition of untypical legal persons as well enacted statements in Europe and USA. Readers will not find a detailed methodology in the paper, but rather a list of criteria that is helpful to make a decision on granting legal personhood. Practices of European Union and the United States indicate that common approaches to the legal personality of some kinds of AI are already developed. Both countries are strongly against legal personhood of intellectual war machines. Liability for any damage of misbehavior of military AI is still on competence of military officers. In case of civil application of AI there are two options. AI could be as legal person or as an agent of business relations with other legal persons. Every legal person has to be recognized as such by society. All untypical legal persons have wide recognition of society. When considering the issue of introducing a new legal person into the legal system, legislators must take into account the rights of already existing subjects. Policy makers have to analyze how such legal innovation will comply with previous legal order, first of all how it will affect the fundamental rights and freedoms of the human beings. The legal personhood of androgenic robots that can imitate human behavior regarded in paper as a good solution to minimize illegal and immoral acts committed with their involvement. It would be a factor that keep people from taking action against robots very similar to people. Authors conclude that key factors would be how society will react to a new legal person, how changing of legal rules will affect legal system and why it is necessary. At least all new untypical legal persons are recognized by society, affects of the legal system in manageable way and brings definite benefits to state and society.

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Lytvynenko, A. A. "The right of access to patient's health data: a comparative analysis of the case law of the European court of human rights, the European court of justice, and the practice of the courts of the United States and some European countries". Legal horizons, nr 20 (2020): 135–58. http://dx.doi.org/10.21272/legalhorizons.2020.i20.p135.

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The legal relationships between the physician and the patient involve a duty to maintain the confindentiality of information concerning the patient’s health which is based upon the acting legislation and case law. The non-fulfillment of the said duty mostly brings to civil or criminal responsibility. However, both legislation and case law of various states bear a substantial number of exemptions from the duty of medical confidentiality. With the enhancement of patient’s role in decision-making concerning his treatment, various issues concerning his data privacy arose. Apart from his data privacy maintenance, there is an issue of the patient’s right to access to his medical records. The purpose of access may not be as prosaic as it may initially look like, as in various jurisprudence, including the case law of international courts, plaintiffs frequently applied to courts to obtain an order for medical records productions so as to file an action against hospitals for negligence. Hence, medical records would be used as evidence of negligence at trial. The positions of the United States courts and the courts in Europe (the given paper embraces several trials from Germany and Portugal) may have divergencies concerning direct access to medical data, proprietary status of the health records, a right to access of third parties and its conditions, the categories of personal data banned from patient’s access under certain circumstances etc. The issue of access to medical records in known in the ECJ jurisprudence since the mid 70s, especially in a number of judgments wherein the plaintiffs sued various EEC bodies attempting to impugn the decision of their human resourse department concerning their ineligibility of holding a certain position in the structures of EEC – therein, the defendants did not give reasonable justifications for the such decisions and didn’t present any medical documentation to the prospective plaintiffs as a proof of their unfitness for office. Since the 1980s, similar actions were filed to the European Court of Human Rights. In some cases, not only the issue of the patient’s right to inspection of the respective health records was risen, but the aspect of accessing the information on plaintiff’s biological forbearers as well (trials of Odievre v. France and Godelli v. Italy).

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KERIMOV, ALEXANDER, i FATIMA SHEBZUKHOVA. "IDEOLOGICAL FOUNDATIONS AND FEATURES OF WESTERN LEGAL CULTURE". Sociopolitical Sciences 12, nr 6 (30.12.2022): 15–21. http://dx.doi.org/10.33693/2223-0092-2022-12-6-15-21.

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The purpose of the article is to identify and analyze the ideological foundations of Western legal culture. The main attention is paid to the philosophical and legal, socio-political, religious and moral, natural and climatic factors that determined the processes of evolution of legal culture in the West. Many scientists turn to the problem of the ideological foundations of Western legal culture. The topic is interesting not only for lawyers, but also for philosophers, political scientists, historians, sociologists, as well as for representatives of other branches of science. At each stage of the development of science, different interpretations of the problems can be found, but almost all scientists agree in assessing the common roots of modern legal culture in Western countries. Usually, scholars single out Roman private law, canon law, as well as the philosophy of natural law as unifying principles. Of course, it is difficult to dispute the obvious, but it cannot be said that from a scientific point of view, this problem has been fully studied and is no longer of research interest. This article attempts to delve into the essence of the ideological foundations of Western legal culture. The author examines the problem through the prism of the forms of Western civilization - Romano-Germanic and Anglo-American, deeply interconnected and having common roots. The importance of natural and climatic conditions, geographical space, universal connections provided by the united church, which revealed that special type of personality who sought to individualize his life, is also noted. If in the East people aspired to communality, then the isolation of the individual was characteristic of the West, but it should be noted that due to the densely populated Europe, its multinational nature, the lack of free land, people were inclined to resolve conflict cases through the conclusion of an agreement on a compromise basis. These circumstances obliged people, through compromise, to establish uniform rules, the observance of which was ensured by the state. These rules were primarily focused on respect for individual rights and freedoms, respect for private property, etc. The further development of Western civilization, which was based on the ideas of respect for individual rights and freedoms, led to the birth of the foundations of civil society, the existence of which was determined by the postulates of the rule of law. The realization of the ideas of the rule of law and civil society has determined the vector of development of Western countries, which is the basis for their development in the paradigm of liberal values.

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