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1
Abbas oğlu Abbaslı, Toğrul. "EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF DECISIONS (HIRO BALANI / SPAIN)." SCIENTIFIC WORK 66, no. 05 (May 20, 2021): 196–98. http://dx.doi.org/10.36719/2663-4619/66/196-198.
Анотація:
The European Court of Human Rights acknowledges the violation of Article 6 in order to provide unfounded reasons for court decisions. Therefore, claims that may affect the outcome of the trial must be answered. The topic is very relevant for research in modern times. Research and comparative methods were used in the study of the topic. The study focused on Turkish and English literature. Key words: Substantiation of Court Decisions, Right to Fair Trial, Right to Defense,European Court of Human Rights,Constitution
2
Mujuzi, Jamil Ddamulira. "The Human Rights Jurisdiction of the Constitutional Court of Seychelles." Verfassung in Recht und Übersee 56, no. 2 (2023): 396–418. http://dx.doi.org/10.5771/0506-7286-2023-2-396.
Анотація:
The jurisdiction of the Constitutional Court of the Seychelles, the Court, is provided for under different provisions of the Constitution. Article 46 deals with the circumstances in which a person may approach the Court to enforce human rights. It also deals with the powers of the Court in this context. In this article, I illustrate how the Court, when enforcing or applying Article 46, has dealt with the following issues: locus standi to petition the Court; circumstances in which the Court's jurisdiction is excluded or limited; powers of the Court in protecting human rights, circumstances in which other courts may refer matters to the Constitutional Court and procedural access to the Court and the burden to prove human rights violations. It is observed that for a person to have locus standi under Article 46(1), there has to be a real likelihood that his/her right will be violated. A remote possibility of a violation does not trigger Article 46(1). It is observed further that the right under Article 46(1) is not absolute; although the word ‘may’ is used under Article 46(3), the Court is obliged to decline being seized with a matter in case the applicant has obtained redress from another court; since the constitution is silent on the burden of proof in cases where a private individual is alleged to have violated a human right, the burden should be on the applicant to prove such a violation; and that the Rules of the Court which require that an action alleging a violation of human rights has to be filed within three months of the violation may have to be amended to create exceptions for continuing violations of human rights and for the violation of non-derogable rights.
3
Humbat Hasanli, Shabnam. "Avropa İnsan Hüquqları Məhkəməsinin Beynəlxalq Hüquqi Statusu". SCIENTIFIC WORK 76, № 3 (18 березня 2022): 133–37. http://dx.doi.org/10.36719/2663-4619/76/133-137.
Анотація:
The European Court of Human Rights (ECHR) is an international tribunal established in 1959 under the auspices of the Council of Europe, an international organization. The Court is a judicial body to which individuals, communities, legal entities and other States may apply under certain procedures and rules in the event of a violation of the fundamental rights provided for in the European Convention on Human Rights and its Additional Protocols. The 47 members of the Council of Europe recognize the jurisdiction of the European Court of Human Rights. Although the use of the Council of Europe's flag by the European Union today is confusing, the European Court of Human Rights is a body of the Council of Europe, an almost separate international organization, and not of the European Union. However, the European Convention on Human Rights and the case law of the European Court of Human Rights are indispensable minimum standards for the European Union. All this is the topic of the article “International legal status of the European Court of Human Rights” is very relevant today. Key words: Europe, human rights, judiciary, international law system, ECHR Şəbnəm Hümbət qızı Həsənli Avropa İnsan Hüquqları Məhkəməsinin Beynəlxalq Hüquqi Statusu Xülasə Avropa İnsan Hüquqları Məhkəməsi (AİHM) 1959-cu ildə beynəlxalq təşkilat olan Avropa Şurasının nəzdində yaradılmış beynəlxalq məhkəmədir. Məhkəmə Avropa İnsan Hüquqları Konvensiyası və onun əlavə protokolları ilə təmin edilən əsas hüquqların pozulması halında fiziki şəxslərin, icmaların, hüquqi şəxslərin və digər dövlətlərin müəyyən prosedur və qaydalar çərçivəsində müraciət edə biləcəyi məhkəmə orqanıdır. Avropa Şurasının 47 üzvü Avropa İnsan Hüquqları Məhkəməsinin yurisdiksiyasını tanıyır. Bu gün Avropa İttifaqının Avropa Şurasına məxsus bayraqdan istifadə etməsi müxtəlif çaşqınlıqlara səbəb olsa da, Avropa İnsan Hüquqları Məhkəməsi Avropa İttifaqının deyil, demək olar ki, ayrıca beynəlxalq təşkilat olan Avropa Şurasının orqanıdır. Bununla belə, İnsan Hüquqları üzrə Avropa Konvensiyası və Avropa İnsan Hüquqları Məhkəməsinin məhkəmə təcrübəsi Avropa İttifaqı üçün əvəzolunmaz minimum standartları təşkil edir. Bütün bunlar “Avropa İnsan Hüquqları Məhkəməsinin beynəlxalq hüquqi statusu” adlı məqalə mövzusu müasir dövr üçün olduqca aktualdır. Açar sözlər: Avropa, insan hüquqları, məhkəmə, beynəlxalq hüquq sistemi, AİHM
4
Salainti, Yolanda Mona. "Examining the Role of International Human Rights Tribunals in Promoting Accountability for Human Rights Violations." Easta Journal Law and Human Rights 1, no. 03 (June 30, 2023): 108–15. http://dx.doi.org/10.58812/eslhr.v1i03.87.
Анотація:
This study investigates the crucial role of international human rights courts in advancing accountability for human rights abuses. Its primary objective is to evaluate the effectiveness of these tribunals in holding accountable those — individuals, states, and non-state actors are to blame for major human rights violations. As part of the research methodology, relevant literature, case studies, and legal decisions from international human rights tribunals are thoroughly examined. The International Criminal Court (ICC), the International Court of Justice, and local human rights courts are all part of this. The scope of the investigation includes War crimes, genocide, and crimes against humanity, torture, and enforced disappearances. The findings underscore the substantial contribution made by international human rights courts in ensuring justice, truth-seeking, and redress for victims of human rights abuses. These tribunals have played a pivotal role in establishing legal precedents, clarifying the extent of human rights obligations, and fostering international cooperation to address impunity. The study also explores the challenges confronted by international human rights courts, including limited jurisdiction, enforcement capacity, and political opposition. Additionally, it examines potential synergies between international tribunals and national justice systems to strengthen accountability mechanisms at both the international and domestic levels. The findings of this study have significant implications for policymakers, individuals who advocate for human rights, and those who work in the legal field because they highlight the importance of a powerful and independent international human rights court in promoting accountability and providing justice for victims of human rights violations all over the world.
5
Kosař, David, and Lucas Lixinski. "Domestic Judicial Design by International Human Rights Courts." American Journal of International Law 109, no. 4 (October 2015): 713–60. http://dx.doi.org/10.5305/amerjintelaw.109.4.0713.
Анотація:
Regional human rights courts in Europe and the Americas came into being in the wake of World War II. The European Court of Human Rights (ECHR) and Inter-American Court of Human Rights (IACHR) were established in order to adjudicate on alleged violations of the rights of individuals. Yet, since their inception these courts have also influenced other areas of international law. A part from their impact on general international law, their case law has had significant spill over effects on international criminal law, international refugee law, international environmental law, the law of armed conflicts, and the law of the sea.
6
Alston, Philip. "Against a World Court for Human Rights." Ethics & International Affairs 28, no. 2 (2014): 197–212. http://dx.doi.org/10.1017/s0892679414000215.
Анотація:
Too much of the debate about how respect for human rights can be advanced on a global basis currently revolves around crisis situations involving so-called mass atrocity crimes and the possibility of addressing abuse through the use of military force. This preoccupation, as understandable as it is, serves to mask much harder questions of how to deal with what might be termed silent and continuous atrocities, such as gross forms of gender or ethnic discrimination or systemic police violence, in ways that are achievable, effective, and sustainable. This more prosaic but ultimately more important quest is often left to, or perhaps expropriated by, international lawyers. Where the politician often finds solace in the deployment of military force, the international lawyer turns instinctively to the creation of a new mechanism of some sort. Those of modest inclination might opt for a committee or perhaps an inquiry procedure. The more ambitious, however, might advocate the establishment of a whole new court. And surely the most “visionary” of such proposals is one calling for the creation of a World Court of Human Rights. A version of this idea was put forward in the 1940s, but garnered no support. The idea has now been revived, in great detail, and with untrammeled ambition, under the auspices of an eminent group of international human rights law specialists.
7
Nariman Seyidov, Javanshir. "Avropa İnsan Hüquqları Məhkəməsinin yaradılması və inkişaf prosesi". SCIENTIFIC WORK 77, № 4 (17 квітня 2022): 132–36. http://dx.doi.org/10.36719/2663-4619/77/132-136.
Анотація:
The European Convention on Human Rights, drafted by the Council of Europe after World War II, was signed on 4 November 1950 and entered into force on 3 September 1953. The agreement was later amended and updated through protocols. In addition, they have the property of being prioritized in accordance with the law. According to this provision of the Constitution, the Convention has a very important place in our law. In addition to basic rights and freedoms, the European Convention on Human Rights also regulates the establishment and functions of the European Court of Human Rights and the judicial process. Individuals or Contracting States may, in accordance with the procedures provided for in the Convention, apply to the Court and seek the protection of their rights or the performance of the obligations of other Contracting States. These rules relating to the establishment and operation of the Court must be considered and followed in order for the judicial mechanism provided for in the Convention to function and for the protection of fundamental rights and freedoms in the international arena. Therefore, in addition to the provisions on fundamental rights in the Convention, it is extremely important to examine the provisions on how and through what procedures these rights will be protected. Key words: European Convention on Human Rights, European Court of Human Rights, Position, Eligibility Cavanşir Nəriman oğlu Seyidov Avropa İnsan Hüquqları Məhkəməsinin yaradılması və inkişaf prosesi Xülasə İkinci Dünya Müharibəsindən sonra Avropa Şurası tərəfindən hazırlanmış İnsan Hüquqları üzrə Avropa Konvensiyası 4 noyabr 1950-ci ildə imzalanmış və 3 sentyabr 1953-cü ildə qüvvəyə minmişdir. Müqaviləyə sonradan protokollar vasitəsilə düzəlişlər edilib və yenilənmişdir. Bundan əlavə, qanunlara uyğun olaraq prioritet tətbiq olunma xüsusiyyətinə malikdirlər. Konstitusiyanın bu müddəasına görə Konvensiya qanunumuzda çox mühüm yer tutur. Avropa İnsan Hüquqları Konvensiyasında əsas hüquq və azadlıqlarla yanaşı, Avropa İnsan Hüquqları Məhkəməsinin yaradılması və vəzifələri, məhkəmə araşdırması proseduru ilə bağlı da tənzimləmələr var. Fiziki şəxslər və ya Razılığa gələn dövlətlər Konvensiyada nəzərdə tutulmuş prosedurlara uyğun olaraq Məhkəməyə müraciət edə və öz hüquqlarının müdafiəsini və ya razılığa gələn digər dövlətlərin öhdəliklərinin yerinə yetirilməsini tələb edə bilərlər. Konvensiyada nəzərdə tutulan məhkəmə mexanizminin fəaliyyət göstərməsi və əsas hüquq və azadlıqların beynəlxalq aləmdə qorunması üçün Məhkəmənin yaradılması və fəaliyyəti ilə bağlı bu qaydalar nəzərə alınmalı və onlara əməl edilməlidir. Bu səbəbdən, Konvensiyadakı əsas hüquqlara dair müddəalarla yanaşı, bu hüquqların necə və hansı prosedurlarla qorunacağına dair müddəaların araşdırılması son dərəcə vacibdir. Açar sözlər: İnsan Hüquqları üzrə Avropa Konvensiyası, Avropa İnsan Hüquqları Məhkəməsi, vəzifə, məqbul şərtlər
8
Saktorová, Lubica. "The World Court of Human Rights Feasibility Study." Danube 9, no. 1 (March 1, 2018): 37–47. http://dx.doi.org/10.2478/danb-2018-0003.
Анотація:
Abstract The idea of the World Court of Human Rights was first envisioned in 1947 along with other institutions designed to create a system capable of the worldwide protection of individual human rights. The focus of the present study is to determine key issues of the prospective establishment of the World Court by an examination of its theoretical position among the United Nations bodies, regional and another inter-governmental human rights organisation. Analysis of the function and mechanisms of the current international human rights protection system would lead to deliberation on the prospective substantial and procedural competences of the World Court, the enforcement mechanism, jurisdiction and related benefits. The objective of the final part is to discuss challenges regarding its political and legal feasibility. Without the visionaries of the past, there would be no substantial system of human rights today. The World Court of Human Rights is a vision for the future.
9
Розумовський, О. С., and О. О. Кочура. "The European Court of Human Rights as Part of Criminal Procedural Legislation of Ukraine." Bulletin of Kharkiv National University of Internal Affairs 90, no. 3 (September 23, 2020): 235–44. http://dx.doi.org/10.32631/v.2020.3.23.
Анотація:
The author has studied the issue of the origin and formation of the European Court of Human Rights after the Second World War, steps in the establishment and development of this Court, as well as the actions of the Member States to consolidate the development of the European Court of Human Rights at specialized conferences with the support of the Committee of Ministers. The list of regulatory and legislative acts adopted by the Verkhovna Rada of Ukraine for the establishment of the rule of law in regard to the understanding of human rights in the activities of Ukrainian courts has been researched. Since the Convention for the Protection of Human Rights and Fundamental Freedoms has become part of national legislation after its ratification by the Verkhovna Rada of Ukraine, more detailed study should be conducted regarding the urgent task of fully understanding the content of this international treaty and the main mechanisms for implementing its norms. The author has analyzed the implementation of the case law of the European Court of Human Rights on the example of its specific decisions into criminal procedural legislation of Ukraine by applying the decisions of the European Court of Human Rights by the Grand Chamber of the Supreme Court in its activities and problematic aspects of their practical implementation. Particular attention has been paid to the study of problematic aspects of the use of these decisions in practice by highlighting the rulings of the Grand Chamber of the Supreme Court issued in 2019. The author has analyzed the decisions of the European Court of Human Rights in regard to the conducted secret (search) actions by law enforcement agencies with further disclosure ob obtained evidence to the defense party; it has been also pointed out that the right to disclose evidence contained in criminal proceedings is not absolute to the defense and may be limited only in cases when there are the interests of national security, information protection or witness protection concerning the methods and forms of law enforcement agencies’ activity. The author has made propositions to resolve certain situations related to the implementation of the decisions of the European Court of Human Rights in Ukraine.
10
Smokovych, Mykhailo. "On the issue of the mechanism for the restoration of violated human rights by an administrative court on a constitutional complaint." Legal Ukraine, no. 8 (October 2, 2020): 24–32. http://dx.doi.org/10.37749/2308-9636-2020-8(212)-3.
Анотація:
The article is devoted to a substantive analysis of the mechanism for restoring violated human rights on a constitutional complaint. It has been established that the legal system of Ukraine contains a number of objective factors that complicate the restoration of violated human rights on a constitutional complaint, the elimination of which first of all requires the development of a doctrinal and legislative platform, which should become a universal basis for the formation of a unified practice of administrative proceedings It has been substantiated that the retrospective effect of decisions of the Constitutional Court of Ukraine cannot be absolute. Retrospective effect of decisions of the Constitutional Court of Ukraine is possible in the following cases: if court decisions in the case have not yet been executed; when it comes to the protection of fundamental human rights, of which social rights are a component. As for other human rights, legislative filters are needed that will allow courts to apply retrospective action of decisions of the Constitutional Court of Ukraine in other cases, otherwise the activity of courts will go beyond their discretionary powers. It has been established that expanding the range of retrospective action of decisions of the Constitutional Court of Ukraine requires legislative regulation. Key words: administrative proceedings, retrospective action of a decision, prospective action of a decision, body of constitutional jurisdiction, fundamental human rights.
11
Shen, Taixia. "Judicial Interpretation of Human Dignity by Hong Kong’s Courts." SAGE Open 12, no. 1 (January 2022): 215824402210782. http://dx.doi.org/10.1177/21582440221078298.
Анотація:
This study employed empirical, case, and comparative analysis methods to examine how Hong Kong’s courts have judicially interpreted the concept of human dignity. It aimed to understand the concept of human dignity in Hong Kong law and its role in judicial adjudication and to explore the contributions that Hong Kong’s courts have made to interpreting and developing the concept of human dignity in support of the development of national and international human rights. In this study, cases heard in Hong Kong’s courts from 1997 to 2019 were analyzed. The results showed that Hong Kong’s courts interpreted the concept of human dignity in cases concerning the right to equality, right to privacy, right to work, right to dignity, and the prohibition of torture and other cruel, inhuman, or degrading punishment or treatment, despite the fact that some of them are not found in the Hong Kong Basic Law. The concept of human dignity provides a foundation on which judges can interpret human rights and is a useful tool for litigants to safeguard their human rights. Although Hong Kong’s courts have cited interpretations of human dignity made by the European Court of Human Rights and other common law courts, they have also interpreted it in their own unique way. Hong Kong’s courts have made great contributions to shaping the concept of human dignity to increase justice around the world.
12
VALDEZ VELAZCO, SILDA. "¿ES POSIBLE LA PROTECCIÓN INTERNACIONAL DE LOS DERECHOS DE LOS CONTRIBUYENTES?" SCIENTIARVM 1, no. 1 (July 4, 2015): 19–22. http://dx.doi.org/10.26696/sci.epg.0125.
Анотація:
ABSTRACT: In the present investigation, we seek to describe and establish how two international organizations such as the Inter-American Court of Human Rights and the European Court of Human Rights, precisely responsable for the protection of the human rights of the citizens of their member states, have managed to concretize the protection of the rights of taxpayers despite their poor regulation in international treaties base on those that impart justice. Thus, some of the cases in which there has been a ruling on tax issues are analyzed, the facts, the rights protected and how this protection has finally been materialized in specific cases. Key words: Human Rights, taxpayers, American Convention on Human Rights, European Convention on Human Rights, taxation.
13
Abdou, Noureldin. "Muftī Courts, Minority Protection and the European Court of Human Rights." Zeitschrift für europarechtliche Studien 23, no. 4 (2020): 673–718. http://dx.doi.org/10.5771/1435-439x-2020-4-673.
Анотація:
Being one of the leading cases in 2019, as described by the President of the European Court of Human Rights, this article analyzes the Molla Sali case in the merits as well as the just satisfaction stages. It argues that the Grand Chamber’s decision did not open the door for an expansive application of Islamic religious law (Sharī ̔a) in Europe; that the ECtHR did not impose a flat ban on religious adjudication; and that the ramifications of the decision may influence different religious minorities in general with a particularly alienating impact on Muslim Europeans. The case brought the minority protection regime that had been established in Western Thrace in the aftermath of the First World War under the ECtHR’s scrutiny as to its compatibility with the principles of equality and the rule of law as set forth in the ECHR. Although the Hellenic Republic was held in violation of the ECHR, its newly introduced law amending the functioning of the Muftī courts sought to balance minority interests with the mandates of the ECHR. While the just satisfaction decision was perceived as a Pyrrhic victory, it remains to be seen whether the ongoing proceedings before Turkish courts will be politicized.
14
PETERSMANN, ERNST-ULRICH. "Human Rights, Constitutionalism and the World Trade Organization: Challenges for World Trade Organization Jurisprudence and Civil Society." Leiden Journal of International Law 19, no. 3 (October 2006): 633–67. http://dx.doi.org/10.1017/s0922156506003505.
Анотація:
Governments perceive UN human rights conventions and the law of the World Trade Organization (WTO) as separate legal regimes. WTO jurisprudence, by contrast, interprets WTO rules as parts of international law and may soon be confronted with legal claims that WTO obligations are to be construed with due regard to the human rights obligations of WTO members. The diverse constitutional traditions of WTO members, and their political opposition to linking WTO law to human rights, make it unlikely that WTO members will respond to the UN proposals for a ‘human rights approach to trade’ by adopting a WTO Declaration clarifying that WTO rules are flexible enough to be interpreted and applied in conformity with the human rights obligations of WTO members (section 1). Following the invitation by WTO Director-General Pascal Lamy to form ‘cosmopolitan constituencies’ in support of global public goods (like a rules-based world trading system), this article makes concrete proposals for the initiative by the International Law Association (ILA) to elaborate an ILA Declaration clarifying the complex interrelationships between trade law, human rights and WTO jurisprudence (section 2). As many human rights arguments presented in trade disputes in the EC Court and in the European Court of Human Rights could likewise be raised in WTO dispute settlement proceedings, the article examines whether the ‘constitutional methodologies’ applied by European courts offer lessons for further ‘constitutionalizing’ trade governance in the WTO in conformity with the human rights obligations of all WTO members.
15
Arrubia, Eduardo J. "The Human Right to Gender Identity: From the International Human Rights Scenario to Latin American Domestic Legislation." International Journal of Law, Policy and the Family 33, no. 3 (September 17, 2019): 360–79. http://dx.doi.org/10.1093/lawfam/ebz007.
Анотація:
Abstract Transgender persons usually undergo significant discrimination all over the world. This is the reason why gender identity has been translated into the language of International Human Rights Law. Thus, the European Court of Human Rights has evolved along the last decades towards the recognition of this human right, and so has the Inter-American Court by releasing its recent advisory opinion on gender identity, equality and non-discrimination of same sex couples. Within this framework, some Latin American countries have passed regulations entitling trans persons to have their public records as regards their name, sex marker and image data modified. Nevertheless, these juridical norms of domestic law might not entirely comply with the standards that have been set by the Inter-American Court of Human Rights since they tend to reproduce cultural patterns of gender which lead to a pathological comprehension of transgenderism. In this analysis, Argentinian legislative experience is accounted for as a cutting-edge exemption in this matter.
16
Omelchenko, Oleksandr, and Vladislav Rebezyuk. "The current issues of the protection of the rights, freedoms of participants of criminal proceedings at the stage of judicial consideration." Slovo of the National School of Judges of Ukraine, no. 4(29) (February 11, 2020): 71–82. http://dx.doi.org/10.37566/2707-6849-2019-4(29)-6.
Анотація:
This article explores the issues of protecting of the rights, freedoms of participants in criminal proceedings at the stage of judicial consideration. Consequently, examines of the current state and prospects of protecting the rights, freedoms of participants in criminal proceedings at the stage of judicial consideration is carried out. The current problems and ways of solving the issue of protecting the rights and freedoms of participants in judicial proceedings are considered. This article deals with the issues concerning of the protection of rights and freedoms in criminal proceedings. An indicator of the availability of justice is a component of the right to a fair trial, the existence of an optimal system of court costs and developed mechanisms for providing legal assistance to the poor. Meanwhile, all court judgments should be based on the current Constitution of Ukraine, as well as on the current legislation, without contradicting with them. The International experience in protecting the human rights and freedoms is very important and has a significant impact on the domestic legislation of both our state and other democratic states as a whole. The International standards of fundamental human rights and freedoms and their legitimate interests is the basis that fills the international experience in protecting human rights, freedoms and legitimate interests. The main provisions of the Constitution of the community of democratic states on human rights and freedoms must comply with all international standards, since the protection of rights, freedoms and legitimate interests ensures the sovereign, democratic and independent state. Each civilized state must ensure the implementation of legal guarantees for the protection of the rights, freedoms and legitimate interests of its citizens, this will become the key to the democratic development of the state. To summarize, the public is interested in ensuring that the rule of law is guaranteed through fair, impartial and effective administration of justice. The prosecutors and the judges ensure at all stages of the trial the guarantee of human rights and freedoms, as well as the protection of public order. This covers respect for the rights of the accused and the victims. Protecting the human rights in criminal proceedings at the trial stage is one of the main challenges facing the courts, prosecutors and lawyers. The opportunities of judicial protection through a system of various forms of judicial review is not only an additional guarantee of rights and freedoms, but also a condition for their speedy restoration. Key words: court proceedings, organizational and legal mechanism, protection of the rights, court decision, court control functions, The European Court of Human Rights, legal decisions, legal norms, court proceedings, protection of freedoms, availability of the justice.
17
Alshehri, Salem. "An Arab Court of Human Rights: The Dream Desired." Arab Law Quarterly 30, no. 1 (November 27, 2016): 34–52. http://dx.doi.org/10.1163/15730255-12341315.
Анотація:
The Arab Spring, which began at the end of 2010, created an atmosphere in the Arab world suitable for improving the protection of human rights through the establishment of the Arab Court of Human Rights. Plans to establish this court have existed since 2004, following the modification of the Arab Charter on Human Rights. This article explores the need for the establishment of the court, which will be a dream come true for residents in the Arab world.
18
Nelin, Oleksandr. "Human and civil rights as a determiner of national state-building." Legal Ukraine, no. 7 (September 21, 2020): 6–12. http://dx.doi.org/10.37749/2308-9636-2020-7(211)-1.
Анотація:
At the present stage of their development the Ukrainian society and the state are characterized by their pursuit to provide maximum realization of human and civil rights and to create a full-scale civil society. Obviously, in this context, a significant attention is paid to the human rights in Ukraine, however there is insufficient research systematically conceptualizing the human rights employing philosophical and legal instruments and methodology. The author highlights that particular attention in the mechanism of organizational and legal remedies is paid to judicial and extrajudicial protection of human and civil rights. In accordance with the Article 55 of the Constitution of Ukraine the judicial protection of human and civil rights is maintained through the system of general jurisdiction courts of Ukraine. The state ensures the right of every person to appeal in court against any decisions, actions or inactivity of the state bodies, local self-government bodies and government officials that violate human and civil rights. In case of exhausting all remedies of his/her rights and liberties protection in national courts the person can appeal to the international courts, e.g. to the European Court of Human Rights. At present, Ukraine holds the third position in the number of its citizens’ appeals to this distinguished international legal institution. Every person is able to appeal to the extrajudicial institutions authorized to protect the constitutional human and civil rights and liberties. In Ukraine there is a special body for this purpose — the Ukrainian Parliament Commissioner for Human Rights, whose activities are determined by the Law of Ukraine «On the Ukrainian Parliament Commissioner for Human Rights» of 23 December, 1997. In case when all extrajudicial remedies of human rights protection are exhausted, a person has the right, guaranteed by the Constitution of Ukraine, to appeal to the international human rights organizations (Art. 55). In terms of the current theory and practice of guaranteeing the constitutional human and civil rights, together with the national regulatory, organizational and legal guarantees, it is worth to distinguish the international guarantees of the constitutional human and civil rights and liberties in Ukraine. The special international legal guarantees of the human and civil rights and liberties are usually divided into regulatory and institutional ones. Key words: human and civil rights and liberties, constitutional state, national legal doctrine, international law, imitation of human rights, constitutional and legal mechanism for ensuring human rights and liberties.
19
Slobodianyk, T., M. Bihdan, and I. Taran. "Application of the practice of the European Court of Human Rights in civil proceedings." Uzhhorod National University Herald. Series: Law 1, no. 77 (June 27, 2023): 159–63. http://dx.doi.org/10.24144/2307-3322.2023.77.1.25.
Анотація:
The article is devoted to the study of the significance and place of practice of the European Court of Human Rights in the national civil procedural legislation of Ukraine.An analysis of the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms and its Protocols, which is part of the national legislation of Ukraine, as a valid international treaty, the consent to the binding of which was given by the Verkhovna Rada of Ukraine, and it was found that the main task of the European Court of Human Rights of a person is, first of all, control over the implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 by the countries that directly signed it.It was determined that the decision of the European Court of Human Rights is an extremely important legal practice that should be used to supplement national legislation, as well as to directly improve the methods of protecting civil rights and bring the norms of law, in this case, civil and civil procedural, closer to European standards.It has been established that the courts apply the Convention on the Protection of Human Rights and Fundamental Freedoms and the practice of the ECtHR as a source of law.The practice of the European Court of Human Rights is an official form of interpretation of the basic (inalienable) rights of every person, enshrined and guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, which is part of the national legislation of Ukraine, and in this connection, a source of legislative legal regulation and law enforcement in Ukraine.Based on the results of the study, it was concluded that the great importance of the practice of the ECtHR for the civil justice of Ukraine is due to the fact that the Court interprets the provisions of the Convention and its Protocols comprehensively, taking into account international experience and changes in the world that are currently taking place, so that such an interpretation reflects the realities of today.The practice of the European Court of Human Rights occupies a prominent place as a source of civil procedural law of Ukraine, since, taking into account Ukraine’s desire for European integration, Ukrainian courts increasingly refer to specific decisions of the European Court of Human Rights in civil cases as a legal justification for their chosen position.Therefore, we can define the practice of the European Court of Human Rights as a source of civil and civil procedural law, which must be applied interdependently and in an inseparable combination with the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms and its Protocols, considered as a complete “living organism”.
20
Pavlovschi, Stanislav. "Considerations on the ratification of protocol no. 16 to the European convention on human rights by the Republic of Moldova." Studia Universitatis Moldaviae. Seria Stiinte Sociale, no. 3 (June 2023): 239–44. http://dx.doi.org/10.59295/sum3(163)2023_29.
Анотація:
Harmonising standards of human rights protection is one of the main aims of the European Court of Human Rights. However, one problem the institution faces is the large number of applications lodged by nationals of High Contracting Parties. According to the latest official figures, 75 650 applications are pending before the Strasbourg court. In other words, the Court has become the victim of its own success. One of the solutions to this problem is the adoption of a consultative mechanism through which judicial dialogue between the Court and the European supreme courts is strengthened. The mechanism in question was established by Protocol No. 16 to the Convention, which is to be ratified by the Republic of Moldova. It would be an important tool for national judicial authorities in strengthening the rule of law and achieving a higher level of human rights protection.
21
Nowak, M. "The Need for a World Court of Human Rights." Human Rights Law Review 7, no. 1 (February 8, 2007): 251–59. http://dx.doi.org/10.1093/hrlr/ngl026.
22
Pérez-León Acevedo, Juan Pablo. "Realising the Right to Health for Victims of International Crimes. The Case of Medical Rehabilitation Reparations Ordered by International Courts: Challenges, Possibilities and Ways of Improvement." Groningen Journal of International Law 3, no. 2 (December 18, 2015): 17. http://dx.doi.org/10.21827/5a86a8d59644e.
Анотація:
In the last few decades, international crimes, ie, serious human rights violations, have inflicted severe harm on both the physical and mental health of large numbers of victims around the world. In attempting to redress these damages, international courts, within their respective mandates, have issued reparations orders in favour of victims and their communities. Precisely, an important modality of reparations has consisted of rehabilitation which includes measures of a medical nature for victims. This means physical and psychological rehabilitation including treatment, care and support. At three international level courts, namely, the Inter-American Court of Human Rights (IACtHR), International Criminal Court (ICC), and Extraordinary Chambers in the Courts of Cambodia (ECCC), important developments in the field of medical rehabilitative reparations have taken place. This article critically analyses the practices on medical rehabilitation reparations at those courts, suggests which steps should be taken to improve those practices and proposes which actions States and other international community actors should adopt to better implement and/or contribute towards the implementation of orders on medical rehabilitation reparations. Attention is also given to international human rights law, particularly the obligation to cooperate and the right to health standards and principles.
23
Mujuzi, Jamil D. "Construing pre-1995 laws to bring them in conformity with the Constitution of Uganda: Courts' reliance on article 274 of the Constitution to protect human rights." African Human Rights Law Journal 22, no. 2 (January 25, 2023): 1–28. http://dx.doi.org/10.17159/1996-2096/2022/v22n2a9.
Анотація:
Article274 of the Ugandan Constitution (1995) provides that laws that existed at the time of the entry into force of the Constitution 'shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it in conformity with this Constitution'. The jurisprudence from Ugandan courts shows that they have adopted three approaches to give effect to article 274 and, as a result, protected human rights such as the right to equality (freedom from discrimination), property, human dignity, liberty and the right to bail. The first approach is for the court to read word(s) into the impugned legislative provision without any deletions. This is done in one of the two ways: by either reading these words expressly into the impugned legislation, or by doing so impliedly. The second approach is for the court to strike out words from the impugned provision and replace these with new words. According to this approach, the court either adds a few words or overhauls the entire provision. It is argued that overhauling a legislative provision is beyond the mandate of the court's power under article 274 and it ignores the principle of separation of powers in terms of which Parliament has the role to make laws. The third approach is for the court to 'strike out' or 'read out' words from the impugned legislation without replacing them. Although the Constitutional Court is the only court with the mandate to declare legislation inconsistent with the Constitution (under article 137), other courts have invoked article 274 to declare legislation unconstitutional, thus usurping the powers of the Constitutional Court. Is it argued that the Constitution may have to be amended so that other courts, other than the Constitutional Court, are also empowered to declare legislation unconstitutional on condition that such declaration takes effect after it has been confirmed by the Constitutional Court. A similar approach has been followed in other African countries such as South Africa.
24
Soloviova, Olha. "Problematic issues of administrative responsibility for disrespect for court." Slovo of the National School of Judges of Ukraine, no. 4(29) (February 11, 2020): 17–30. http://dx.doi.org/10.37566/2707-6849-2019-4(29)-2.
Анотація:
The article is devoted to the legal principles of taking administrative responsibility for disrespect for court. In the work the complex analysis of proceedings in cases of administrative offenses envisaged by Article 185-3 of the Code of Administrative Offenses is carried out. The problematic issues that arise in practice when considering cases of administrative offenses for disrespect for court are outlined. The article examines the individual decisions of national courts in cases of administrative offenses for disrespect for court. The Association Agreement with the European Union Ukraine has declared its agreement to strengthen cooperation in the field of justice, freedom and security in order to ensure the rule of law and respect for human rights and fundamental freedoms, strengthen the judiciary, enhance its efficiency, guarantee its independence and impartiality. Weaknesses of national legislation with respect to international standards of administration of justice are identified. Particular attention is paid to compliance with the principle of impartiality when imposing administrative penalties for disrespect for court. The relevant decisions of the European Court of Human Rights have been analyzed. Suggestions were made to remedy practical problems in order to bring administrative penalties for disrespect for court into conformity with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights. It was concluded that it is necessary to determine the clear jurisdiction of the courts in the consideration of cases of administrative offenses disrespect for court with the introduction of appropriate changes or procedural codes, or the Code of Ukraine on Administrative Offenses. Key words: disrespect for court, administrative responsibility, impartiality, challenge (recusal) of a judge.
25
Onishchuk, Mykola, and Mykhailo Savchyn. "Direct effect of the Constitution and implementation of its provisions in administrative justice." Slovo of the National School of Judges of Ukraine, no. 2(31) (July 30, 2020): 6–26. http://dx.doi.org/10.37566/2707-6849-2020-2(31)-1.
Анотація:
The problem of direct effect of the Constitution is related to the some aspects of the systematics of sources of law in the legal system of Ukraine in the pint of view of comparative law. Today, the processes of convergence in law continue. In the light of such dynamics, there is a multilevel and pluralistic picture of the direct effect of the provisions of the Constitution of Ukraine as a component of its highest legal force. The resolution of human rights cases by courts is a complex case, as it refers to their excessive restriction by law, which is not based on a sufficient legal basis. Constitutional justice is relevant to the practice of courts of general jurisdiction, as it is often in acts of constitutional justice that the provisions of the constitution are interpreted. The article is the disclosure of the direct action of the Constitution Ukraine in the exercise of administrative justice through the implementation of its provisions in court decisions. The highest legal force of the Constitution is revealed through the lens of the components of the reasoning of court decisions. Direct action has been analyzed as a component of the normative nature of the Constitution, in particular because of the duty to protect of human rights and apply the principles of proportionality, as well as the correlation between the legal force of the Constitution and the acts of the Constitutional Court. The implementation of the decisions of the Constitutional Court in the activity of administrative courts, in particular through the system of reasoning of their decisions, is revealed. Based on a holistic understanding of the Constitution, it is concluded that the duty to protect the state arises from the violation of its human (i.e. body) human right by the agent and the main duty of the court is to restore such right in full. Key words: decisions of constitutional justice, direct effect of the constitution, human rights, legal reasoning, review of judicial decisions, supremacy of the constitution.
26
Barna, O., and I. Ye Peresh. "The right to peace in the system of human rights." Analytical and Comparative Jurisprudence, no. 5 (December 30, 2022): 86–90. http://dx.doi.org/10.24144/2788-6018.2022.05.16.
Анотація:
The article analyzes and researchs the human right to peace as a special right of the third generation of human rights. The text of this work draws attention to the relationship between the right to peace and other human rights. Considerable importance is attached to enshrining the special right to peace in regional documents on the protection of human rights. It has been found that in the documents of international law, the issue of peace is often mentioned in preambles, as well as in articles outlining the goals and objectives of the activities of international organizations and the world community. The need to establish theright to peace as an independent human right at the level of international documents is analyzed, which, in turn, will help eradicate the practice of justifying violations of peace. The practice of the European Court of Human Rights regarding theviolation of the right to peace was considered.It was clarified and highlighted that although the right to peace is not directly enshrined as a separate and independent human right in the text of the European Convention on Human Rights, the violation of certain enshrined rights entails a violation, in including the guaranteed right to peace. The relationship between the right to peace and human rights is analyzed on the example of specific decisions of the European Court of Human Rights. The position on the need for further research into mechanisms for protecting the human right to peace, especially through the European Court of Human Rights, is highlighted. An opinion has been proposed, according to which enshrining the right of every person to peace in international declarations would be the first step towards its accurate recognition as an independent human right in the international arena. The position of the need to protect humanity’s right to peace is also highlighted, as such protection will be key for all humanity and will guarantee compliance with human rights standards. It is concluded that effective judicial protection of the human rightto peace will be offered in the future in view of further fruitful research in this area.
27
Nwauche, ES. "The Dubious Distinction between Principal and Accessory Claims in Nigerian Human Rights Jurisprudence." Journal of African Law 52, no. 1 (March 20, 2008): 66–88. http://dx.doi.org/10.1017/s002185530800003x.
Анотація:
AbstractWhat began as an exercise in defining the jurisdiction of the Nigerian Federal High Court over fundamental human rights has now turned into a well established principle that Nigerian courts will not entertain an action for the enforcement of a fundamental human right contained in chapter IV of the 1999 constitution through the Fundamental Human Rights (Enforcement Procedure) Rules unless it is the principal claim. In other words, if the action for the enforcement of a fundamental human right is an accessory or subsidiary claim, the action must be started by a writ of summons. This article demonstrates that this distinction is dubious, irrelevant and impossible to make, and leads to a miscarriage of justice.
28
Nesvit, Evgeniy A. "Court as a Subject of Civil Right Protection." Administrative law and procedure 10 (October 8, 2020): 48–51. http://dx.doi.org/10.18572/2071-1166-2020-10-48-51.
Анотація:
The article deals with the legal status of the court as a subject of protection of human and civil rights and freedoms. The article justifies that the subject matter is the cross-sectoral legal status of the court from the perspective of its human rights function with regard to human rights. The issue has been examined in terms of the human rights orientation of justice through the analysis of certain types of judicial proceedings. Certain categories of cases with the greatest human rights focus have been identified, and judicial statistics have been analysed. The human rights potential of the principle of protection of the weak party in the legal relationship was noted. It is pointed out that the protection of human rights provides a world-view of the work of the judge and determines the social effectiveness of justice. Conclusions and proposals on the development of the human rights capacity of the judiciary were formulated.
29
Jesse, James. "Limitation Clauses at the African Regional Human Rights System and Tanzania: Reflection of Judicial Decisions." Eastern Africa Law Review 48, no. 1 (June 30, 2021): 62–101. http://dx.doi.org/10.56279/ealr.v48i1.2.
Анотація:
Enjoyment of fundamental human rights as guaranteed by the African Charter or Constitution of Tanzania is subject to limitations which are set out by the ordinary law made by parliament. However, case law has demonstrated that no provision of the limitation clause in the African Charter or Constitution may be interpreted as permitting a State to suppress enjoyment or exercise of the rights and freedoms to a greater extent than reasonably required. Which tests or criteria should guide the court or other authorities depends on the instrument in question. Both the African Charter and the Constitution of Tanzania do not have clearer guiding criteria. Courts have attempted, nevertheless, to come up with criteria or tests by borrowing from international, other regional and domestic human rights systems. This article reviews case law from the African Court and Tanzania and finally proposes the adoption of the three-tier test in resolving tension when at issue before the Court is whether or not a legislation or conduct is saved by Article 30(2) of the Constitution which allows limitation of human rights. The benefit of adopting this approach would enable domestic courts to be consistent when deciding human rights petitions. Key Words: Limitation Clauses, Claw-back clauses, proportionality principle, necessary in a democratic society.
30
Sommer, Christian G., and Victorino F. Sola. "The implementation of reparations in the Inter-American human rights system." American Yearbook of International Law 1, no. 1 (January 15, 2023): 429–521. http://dx.doi.org/10.12681/ayil.33043.
Анотація:
Reparations as a consequence of the harm suffered by individuals is a general principle of law, recognized by States as a mechanism to compensate for the harm caused by others. In the regional systems for the protection of human rights, the courts have made important advances throughout their operation in generating progressive interpretations of the principle of reparations as a consequence of human rights violations by States. In the inter-American human rights system, the role of the Inter-American Court of Human Rights has had an important evolutionary development on the interpretations of how States should repair violations committed in their territories.
As has already been indicated in the international arena as well as by national courts, reparation for the harm caused is not simply the payment of sums of money. This would be the simplest form that States would have for having caused human rights violations or even crimes against humanity. For this reason, the Inter-American Court, since its first case, has been indicating to the States that economic reparation is only one part of the State's obligation to make reparations. The most important judgments that the regional Court has indicated in its 40 years are marked by the so-called “non-pecuniary reparations”. In other words, reparations that seek to ensure that the events that occurred do not happen again, that the States commit to train their officials in human rights and respect for persons, build schools, hospitals, and roads to improve the living conditions of the victims, etc.
For further more about this evolution, this paper develops the main jurisprudence of the Inter-American Court on reparations and how international law has already set important standards to be applied by States.
31
Savchyn, Mykhailo. "Judicial Protection of Social Rights and Respect for Human Dignity." Slovo of the National School of Judges of Ukraine, no. 2(43) (November 7, 2023): 6–27. http://dx.doi.org/10.37566/2707-6849-2023-2(43)-1.
Анотація:
he article analyzes the idea of protection of social rights based on the universal nature of human rights as the obligation of the state to protect certain goods, in particular, the distribution of goods in the case of unequal economic status of individuals or the occurrence of life circumstances beyond the individual's will. The protection of social rights is also seen through the principle of ubi jus ibi remedium, the fair distribution of goods on the basis of an equal scale of rights and freedoms. The purpose of the study is to reveal the nature of social protection through the concept of guarantee of rights based on respect for human dignity. In particular, the author reveals the nature of social rights through the duty to protect the state, which is discussed through human dignity, freedom and equality. The author analyzes the jurisprudence of the Constitutional Court of Ukraine on the content of the state's obligation to ensure and protect social rights in the light of the approaches of the European Court of Human Rights. The author demonstrates the approach of the Supreme Court to the constitutional and administrative provision of social rights on the example of cases on social rights. The author formulates a holistic vision of social rights enforcement given the limited resources in the context of war and post-war renewal of Ukraine. Key words: administrative proceedings, constitutional jurisprudence, duty to protect, human dignity, judicial protection, social rights, the very essence of the right.
32
Šurlan, Tijana. "The duty to protect the right to life." Nauka bezbednost policija 26, no. 2 (2021): 19–30. http://dx.doi.org/10.5937/nabepo26-34101.
Анотація:
The author analyses one aspect of the right to life - the duty to protect the right to life. at aspect is not encompassed in definitions of the right to life in clear and explicit words. However, it is elucidated through the process of interpretation by various bodies, both international and national. Explicit inclusion of this element is thoroughly analysed in General Comment No. 36 adopted by the UN Human Rights Committee and it presents the starting point for the analyses in this paper. e duty to protect the right to life has also been elaborated in specific cases before the UN Human Rights Committee, the European Court of Human Rights and constitutional courts. Several of these cases have also been analysed within this paper. e aim of the paper is to identify the scope and limits of the duty to protect the right to life.
33
Baraggia, Antonia, and Maria Elena Gennusa. "Intertwined but Different. The Heterologous In Vitro Fertilization Case before the European Court of Human Rights and the Italian Constitutional Court." Perspectives on Federalism 9, no. 1 (August 28, 2017): 34–67. http://dx.doi.org/10.1515/pof-2017-0003.
Анотація:
Abstract International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR’s S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to have the last word on human rights adjudication.
34
Nowak, Manfred. "The Right of Victims of Human Rights Violations to a Remedy: The Need for a World Court of Human Rights." Nordic Journal of Human Rights 32, no. 1 (January 2, 2014): 3–17. http://dx.doi.org/10.1080/18918131.2013.877552.
35
Nurhidayatuloh, Nurhidayatuloh, Akhmad Idris, Rizka Nurliyantika, and Fatimatuz Zuhro. "Anomali Asas Non-Retroaktif dalam Kejahatan Genosida, Bertentangan dengan HAM?" Jurnal Konstitusi 19, no. 2 (June 2, 2022): 294. http://dx.doi.org/10.31078/jk1923.
Анотація:
The crime of genocide is one of the most serious international crimes stipulated in the Rome Statute. Previously, genocide was regulated in the Convention on Genocide entered into force on 12 January 1951. The convention and the Rome Statute do not allow retroactivity. However, retroactivity appears in the Indonesian Law on the Human Rights Court and is strengthened through the Indonesian Constitutional Court's Decision. This study focuses on the neglect of the non-retroactive principle in the Law on Human Rights Courts and the extent to which the retroactive period. This research uses normative-legal method with a statutory and case approaches. The result shows that ignoring the non-retoactive principle is contrary to international law and international human rights regulations. Hence, the Constitutional Court's decision that strengthens retroactivity can be interpreted that the Court maintains human rights while at the same time violates human rights by not accurately interpreting the word “derogation” and “restriction” in Article 28J of the 1945 Constitution.
36
Urueña, Rene. "Evangelicals at the Inter-American Court of Human Rights." AJIL Unbound 113 (2019): 360–64. http://dx.doi.org/10.1017/aju.2019.64.
Анотація:
Christian Evangelicals are a growing political force in Latin America. Most recently, they have engaged the Inter-American Court of Human Rights to challenge basic LGBTI achievements, such as same-sex marriage and other demands for equal rights. Several commentators thus speak of an imminent showdown between human rights protections and Christian Evangelism in the region, which would mirror similar conflicts elsewhere in the world. This essay challenges this narrative and warns against a top-down “secular fundamentalism,” which may alienate a significant part of the region's population and create deep resentment against the Court. As it turns forty, the Court faces a “spiritual” crisis: conservative religious movements have become one of its key interlocutors, with demands and expectations that compete with (but could also complement) those of other regional social movements. Difficult as it may be, the Court needs to be bold in creating argumentative spaces that allow for the Evangelical experience to exist in the public sphere in Latin America, in a context of respect for human rights in general, and for LGBTI rights in particular.
37
Tesón, Fernando R. "Le Peuple, c’est moi! The World Court and Human Rights." American Journal of International Law 81, no. 1 (January 1987): 173–83. http://dx.doi.org/10.2307/2202148.
Анотація:
This essay examines the discussion of human rights and domestic jurisdiction by the International Court of Justice in the Nicaragua case. Independently of the final verdict about the lawfulness of U.S. help to the contras under principles of either self-defense or humanitarian intervention, the Court’s views on the relationship among human rights, domestic jurisdiction and intervention are wrong in law. Furthermore, the philosophical assumptions of the Judgment are profoundly disturbing. For the reasons set forth below, I submit that the Court’s approach embodies a backward view of international law and justice that was totally unnecessary to the resolution of the case.
38
Rasilla, Ignacio de la. "The World Court of Human Rights: Rise, Fall and Revival?" Human Rights Law Review 19, no. 3 (October 11, 2019): 585–603. http://dx.doi.org/10.1093/hrlr/ngz019.
39
O., Lynnyk. "Law-Making as an Important Guarantee of Human Rights." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 339–44. http://dx.doi.org/10.33663/2524-017x-2020-11-57.
Анотація:
The article is dedicated to the doctrinal justification of the category of judicial law-making. The systematic identification of deficiencies in positive law, as well as the inconsistency in Ukrainian case-law, has led to the fact that filling in the gaps in law and legislation has informally become the competence of the national courts. This has caused the emergence of quasi-precedents claiming a place in the system of sources of law, has led to the regulation of the boundaries of judicial discretion in the court rulings and the need for the distinction of jurisprudence and judicial precedent. The article investigates the scientists’ approaches to the definitions of new legal forms, comparing controversial points of view about the legal nature of the law-making role of judges. The article also focuses on the issue of the binding character of high courts’ decisions to the lower ones in future similar cases, as well as on the problem of recognition of national and international jurisprudence as a source of law in Ukraine. Based on the analysis of different forms of judicial law-making and its relationship with the principles of law, such as rule of law and legal certainty, the author has formulated the definition and the features of the concept in question. The article defines the role of judicial law-making in the mechanism of guaranteeing and protection of human rights and proposes new ways of legalization at the normative level of law-making of the courts. Key words: judicial law-making, precedent, legal provisions, human rights, case law, court.
40
Szymacha, Adam. "Fundamental Rights and the Obligation to Publicly Disclose Information on Tax Strategy." Finanse i Prawo Finansowe 4, no. 32 (October 27, 2021): 7–20. http://dx.doi.org/10.18778/2391-6478.4.32.01.
Анотація:
The aim of the article: The presented study concerns the problem of violations of fundamental rights caused by the law regulation contained in art. 27c of the Corporate Income Tax Act in Poland. This regulation provides obligation to publish information about introduced tax strategies. Yet, it may endanger many human rights and this article focuses on two of them – the right to remain silent, and the right of privacy. The aim of this article is to make an analysis of the standards presented by the Court of Justice of the European Union and the European Court of Human Rights. Additionally, the standard presented by the Polish Constitutional Court is presented. Methodology: To decode these standards the comparative law method is used. Especially the case laws of these courts are presented and additionally, they are completed by the comparison of the acts that concern similar law institutions but come from different lawmakers. Results of the research: The results of the study do not provide a clear answer. However, they do allow for an approximation of the issue of possible violations of fundamental rights by the analyzed regulation. It is very likely that the analyzed regulation violates the right to remain silent and it is even close to certainty that the analyzed laws violate the right to privacy. The problem is not only the interference in these rights, but in its character as well. Under certain circumstances, interference with fundamental rights is acceptable but must be proportionate. Examined laws are only explained in terms of budgetary balance and the academic world points out that the purpose of this type of regulation is mainly of administrative convenience. This is far too little to consider this interference with fundamental rights imperative.
41
Mishchuk, I. V., and B. S. Kirichuk. "Judicial protection of citizens' rights in the context of the decision-making procedure of the European Court of Human Rights." Analytical and Comparative Jurisprudence, no. 3 (February 20, 2022): 265–69. http://dx.doi.org/10.24144/2788-6018.2021.03.49.
Анотація:
In this article, were analyzed the process of litigation in the European Court of Human Rights. We have found that the problem of informing the public about the role of the court is insufficiently studied and researched. This issue is mainly caused by the fact that the population of Ukraine does not know the real process of litigation in the European Court of Human Rights. We have determined that having the ability to protect your rights in court and being able to do it in an effective way are absolutely different actions.
Were established that the high authority of the European Court of Human Rights has been gained by continued compliance with the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights bases his activity onto according to the principle of the rule of law.
Also we have described in detail the mechanism of functioning of all structural elements of the European Court of Human Rights, from single judje to the Grand Chamber. The single judge can only reach a verdict that your petition is unacceptable. Committees have the competence to analyze petitions if there is a traditional and well-used case law on this category of complaints. This approach to decision-making is operated in cases «Yavoronenko and others v. Ukraine» and «Brenko and others v. Ukraine». The next element of the European Court of Human Rights is the chambers. Unlike committees, chambers deal with complaints with more serious circumstances. This approach to decision-making is operated in cases «Berlizev v. Ukraine» and «Goryaynova v. Ukraine». In most cases Grand Chamber reaches a verdict in exceptionally important cases such as disputes between countries. It is proved that such issues remain especially relevant for Ukraine, primarily due to the military conflict with the Russian Federation. In order to declare its legal position to the world community, Ukraine has to make a regular application to the European Court of Human Rights.
42
Mozhechuk, Lyusya, and Andriy Samotuha. "Role of the European Court of Human Rights in realization of social security right." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 2, no. 2 (June 3, 2020): 55–63. http://dx.doi.org/10.31733/2078-3566-2020-2-55-63.
Анотація:
The article deals with the role of the European Court of Human Rights (ECtHR) in protecting the right to social security. There is the analysis of the case law of the ECtHR on the violation of the right to social security, namely the right to receive a pension, which the ECtHR classifies as property rights. The authors have outlined the ways to improve the practice of the ECtHR in this area in modern national and world socio-economic conditions. According to available estimates, around 50 per cent of the global population has access to some form of social security, while only 20 per cent enjoy adequate social security coverage. Ensuring an ap-propriate mechanism for the protection of human and civil rights is a priority for every country. However, according to case law, the number of complaints of violations or non-recognition of their rights is growing every year. An important role in the protection of human rights in today's conditions is played by an international judicial body - the European Court of Human Rights. In Ukraine, where socio-economic rights are recognized at the constitutional level, their guarantee content in the current laws is still not clearly defined, and therefore, as evidenced by the practice of the Constitutional Court of Ukraine, legal mechanisms their protection, in particular the means of judicial control remain ineffective. The right to social security is the right to access and retention of benefits, both in cash and in kind, without discrimination in order to protect, in particular, against (a) lack of income from work caused by illness, disability, maternity, occupational injuries , unemployment, old age or death of a family member; (b) inaccessible access to medical care; (c) insufficient family support, especially for children and adult dependents. It is well known that the European Convention does not contain many socio-economic rights as such (with a few exceptions - protection of property and the right to education). Thus , the former president of the ECtHR Jean-Paul Costa specifically pointed to another important European human rights treaty – the European Social Charter. Human rights are a universal value, and their protection is the task of every state. The European Court of Human Rights plays an important role in protecting human rights in modern conditions. The functioning of such an international judicial institution can not only solve a problem of protection of violated rights, but also affect the development of the judicial system of each state. The main principle of realization and judicial protection of social rights is non-discrimination on the grounds of sex, age, race, national and social origin of the individual, and the role of auxiliary institutions of the Council of Europe in generalizing and improving the ECtHR’s activity has been emphasized.
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Massot, Jean. "Le juge administratif protecteur de la liberté individuelle." Zbornik radova Pravnog fakulteta u Splitu 54, no. 1 (February 23, 2017): 1–11. http://dx.doi.org/10.31141/10.31141.zrpfs.2017.54.123.001.
Анотація:
Introduction; Individual and civil freedoms; Individual freedom and the right to not being succumbed to self-willed closure; control of general acts. I the administrative judge for a long time has protected individual freedoms; I.1 In normal times; Freedom of Movement: passports, rights of foreigners, coerced psychiatric treatment; Freedom to enter Marriage, family life and free carrying out of profession; House of Taxation Search I.2 In times of crisis; First World War and the theory of state of emergency; Decolonisation, Terrorism: State of Emergency, Administrative jail and searches; II The administrative judge has developed new tools for confronting new challenges; II.1 New challenges; Human Dignity, Morsang sur Orge, Milhaud and Lambert court decisions; Health and Bioethics, Perruche judgement; Computers and Freedoms, Moon judgement; II.2 New tools; More frequent application of the court practice of the European Court for the protection of human rights; Reducing the area of internal measures (unilateral administrative act) ; Urgent procedure for bringing in measures for the protection of freedom; Priority issue of constitutionality, state of emergency; Conclusion: complementariness, and not competiveness between the general supervisory court and administrative courts.
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Jun, Hyungjoon. "Gender-based violence against women as a matter of discrimination: Focusing on the analysis of the state’s positive obligation doctrine as applied in the European Court of Human Rights’ judgment “Volodina v. Russia(No. 2)”." Center for Public Interest & Human Rights Law Chonnam National University 32 (February 28, 2024): 379–417. http://dx.doi.org/10.38135/hrlr.2024.32.381.
Анотація:
Women and girls who are victims of violence need active protection from the state because they are mostly socially vulnerable and cannot escape the danger of violence on their own. Especially with the development of the Internet, violence against women is no longer limited to the analog world, and perpetrators are using the Internet in their acts of violence in the digital world as well. Cyberviolence manifests itself in a variety of ways, from threatening messages and cyber-stalking to consensual/ unconsensual uploading of intimate images. This analysis of the Volodina v. Russia judgment (no. 2) addresses how the European Court of Human Rights (“the Court”) examines and justifies interference with the scope of protection based on the legal concept of the State’s positive obligations in dealing with the issue of violence against women in the digital dimension. The Court focuses on Article 8 of the European Convention on Human Rights (Right to respect for private life) to explain the positive obligation of the state. It sets out the legal instruments of the state’s positive obligations in contrast to its negative obligations, and explores the extent to which they have been applied in specific cases. It is also necessary to critique why the European Court of Human Rights does not examine violations of the prohibition of discrimination under Article 14 (principle of non-discrimination) of the European Convention on Human Rights when determining the scope of protection in this case. CEDAW has already considered gender-based violence against women as an important human rights issue from the very beginning, stipulating that it concerns women precisely because it often affects them disproportionately and is therefore discrimination against women. For this reason, the European Court of Human Rights should have addressed in the judgment at least whether, in addition to a violation of Article 8 of the Convention, the Russian authorities had also violated Article 14 of the European Convention on Human Rights.
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Giliker, Paula. "THE INFLUENCE OF EU AND EUROPEAN HUMAN RIGHTS LAW ON ENGLISH PRIVATE LAW." International and Comparative Law Quarterly 64, no. 2 (April 2015): 237–65. http://dx.doi.org/10.1017/s0020589315000111.
Анотація:
AbstractThis article examines the extent to which EU and European human rights law, following the enactment of the European Communities Act 1972 and the Human Rights Act 1998, have changed the manner in which English courts use comparative law in the private law field. Despite legislative intervention rendering EU law part of the national legal system and requiring the courts ‘to take into account’ the jurisprudence of the European Court of Human Rights, there remains evidence that private law courts retain a preference for comparisons within the common law world. This article will examine, with reference to a number of recent empirical studies, the reasons for this position and what this signifies in terms of future comparative law reasoning.
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Marchenko, Svitlana, and Volodymyr Paliychuk. "Autonomous interpretation of the concept of “property” in the practice of the ECtHR in the context of land and agrarian law of Ukraine." Law Review of Kyiv University of Law, no. 1 (May 5, 2021): 253–57. http://dx.doi.org/10.36695/2219-5521.1.2021.49.
Анотація:
Convention for the Protection of Human Rights and Fundamental Freedoms. Particular attention is paid to the autonomous interpretationby the European Court of Human Rights of the concept of property within the meaning of the abovementioned Convention.The European Court of Human Rights interprets the concept of “property” quite broadly, including not only traditional objects of thematerial world, but also a number of intangible assets. In addition to classic tangible assets (such as land), the European Court of HumanRights also includes a “legitimate expectation” to receive certain assets to the content of the concept of “property”. It is extremelyimportant in Ukrainian land law when a person may not be de facto the owner of the land plot due to bureaucratic abuses of the subjectsof power. At the same time, this position of the Strasbourg Court gives potential owners or land users an additional degree of protectionof their rights.The legal positions of the European Court of Human Rights according to which licenses or special permits that “constitute economicvalue” may also be recognized as property and be protected in accordance with Art. 1 of the First Protocol to the Convention arealso significant. This approach to the interpretation of the concept of “property” is particularly important for the subjects of agrarian law,given that the national agrarian legislation provides for many permits, licenses and other permitting documents for economic entities.Based on the analysis of national legislation and the case law of the European Court of Human Rights, it is concluded that thecase law of the European Court of Human Rights is a source of agrarian and land law, which provides new opportunities to argue legalpositions in jurisdictional protection of property rights. The necessity of implementation in the national law enforcement and law-ma -king activity of the practice of the European Court of Human Rights in the context of protection of the rights of participants of land andagrarian legal relations to their property is substantiated.Based on the analysis of national legislation and the case law of the European Court of Human Rights, it is concluded that thecase law of the European Court of Human Rights is a source of agrarian and land law, which provides new opportunities to argue legalpositions in jurisdictional protection of property rights. The necessity of introduction in the national law enforcement and law-makingactivity of the practice of the European Court of Human Rights in the context of protection of the rights of participants of land andagrarian legal relations to their property is substantiated.
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Okeokwo, Thankgod, Namo Samson, and Gadzama Linus. "NIGERIAN ENVIRONMENTAL LITIGATIONS: TRENDING REASONS." Social Science and Law Journal of Policy Review and Development Strategies 10, no. 1 (April 4, 2023): 1–10. http://dx.doi.org/10.48028/iiprds/ssljprds.v10.i1.01.
Анотація:
The right to safe unpolluted environment is a third-generation rights which is well established in international law and existing international instruments. Countries of the world through their judiciary are elevating this right in enforcing the right to life of their citizens and liberalising access to court on account of alleged infringement on this right to environment which is satisfactory for human development. There have been several instances in the recent past where the right to life has been successfully invoked in the pursuit of environmental claims and protection in different jurisdictions around the world. It is worthy of note that environmental protection was not prevalent at the time first generation rights were first formulated. The courts in some jurisdictions have explicitly recognised the links between human rights and environmental protection and have incorporated the latter into the monitoring and enforcement of the right to life. This paper is focused on trending reasons for environmental litigation in Nigeria. It was found that safe unpolluted environment, remediation and compensation are trending reasons for environmental litigation in Nigeria in recent times. It concluded that the environmental rights should be elevated to a constitutional position it deserves in Nigeria in the light of the decisions of courts locally and globally.
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JOH, Dongeun. "On Human Rights Conforming Statutory Interpretation of the Judiciary: Regarding Supreme Court Full Bench Decision 2019Do2037 on April 21 2022." Korean Constitutional Law Association 28, no. 4 (December 30, 2022): 689–735. http://dx.doi.org/10.35901/kjcl.2022.28.4.689.
Анотація:
Supreme Court Full Bench Decision 2019Do2037 on April 21 2022 dealt with statutory interpretation of Military Criminal Act Article 92-6 which states that a person who commits an indecent act such as anal intercourse with any military personnel shall be punished by imprisonment with labor for not more than 2 years. The court overruled it’s prior ruling by declaring that the Article shall not be construed to include acts taking place in private places with mutual consent. It is of utmost importance to note that this case was decided against the background of Constitutional Court Decision 2012Hun-Ba258, July 28 2016 which held that ‘an indecent act’ of the Article is not void for vagueness and does not violate complaint’s right to sexual self determination, right to privacy, and personal liberty. Aforementioned Supreme Court Case provides a valuable opportunity to look into how the court should consider Human Rights in statutory interpretation, in other words, what the structure and function of Human Rights conforming interpretation consists of. This study suggests that Human Rights conforming interpretation is an interpretative principle that can be derived from requirements of Constitution conforming interpretation(verfassungskonforme Gesetzesauslegung) and respect for international law as provided by Artcle 6 (1) of the Constitution. Understood as an interpretative mandate guided by the fundamental rights and international human rights norms, it requires that the meaning given by the mandate should be preferred even if the initial meaning without consideration of the mandate is not identical with the former. As such, it can be characterized as micro-level, as well as weak-form of judicial review(as formulated by Mark Tushnet). The determining factors in Human Rights conforming interpretation can be summarized as the following: 1) whether multiple interpretations can be legitimately presented within the boundaries of the statutory language, 2) what is the nature of the doubt regarding rights violation, and 3) when such interpretation should be adopted in relation to the referral to the Constitutional Court. The Supreme Court Decision provides multiple opinions addressing these issues. The dissenting opinion differed from other opinions in stating that there are no multiple interpretations possible within the boundaries of the given statutory text. The court’s opinion and the separate opinions 1, 2 all agreed that other possible interpretations were available but disagreed on what those versions actually were. The right to sexual self determination and equal treatment violations were well argued by the court’s opinion, but it would be more adequate to consider it to be an establishment of legitimate doubt on rights violation rather than the final judgment as the Constitutional Court would present its rulings. Human Rights conforming interpretation requires a disciplined sense of interpretive practice as well as an understanding that statutory interpretations operate in a sphere closely related to the goals of respect, protection and fulfillment of Human Rights. Provided that these conditions are met, it might be able to secure a middle ground standing inbetween democratic legislative process and strong form constitutional review.
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Hassan, Saud. "Establishment of the International Criminal Court and the Role of USA: A Legal Appraisal." Northern University Journal of Law 1 (April 7, 2014): 51–69. http://dx.doi.org/10.3329/nujl.v1i0.18525.
Анотація:
In order to end global impunity of perpetration of heinous crimes against humanity and gross violation of human rights and to bring individual perpetrators to justice, international community felt the need for a permanent international criminal court.2 As the armed conflicts and serious violations of human rights and humanitarian law continue to victimize millions of people throughout the world, the reasons for an international criminal court became compelling.3 In many conflicts around the world, armies or rebel groups attack ordinary people and commit terrible human rights abuses against them. Often, these crimes are not punished by the national courts. Here the ICC is complementary to national criminal jurisdictions.4 The court only acts in cases where states are unwilling or unable to do so.5 The jurisdiction of the Court is not retrospective and binds only those States that ratify it.6 Unlike the International Court of Justice in The Hague, whose jurisdiction is restricted to states, the ICC has individualized criminal responsibility. However, the role of USA regarding the establishment and continuation of ICC has caused the organization fall in a trouble. The better cooperation of USA and other states could make the organization more active and effective as to its activities. The view of this paper is to analyze the role of USA towards the establishment, continuation and function of the International Criminal Court. DOI: http://dx.doi.org/10.3329/nujl.v1i0.18525 Northern University Journal of Law Vol.1 2010: 51-69
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Misko, Yuliia. "The concept of transitional justice in a context of a breach of articles 2 and 3 of the European convention on human rights." Legal Ukraine 3, no. 3 (March 26, 2021): 32–39. http://dx.doi.org/10.37749/2308-9636-2021-3(219)-5.
Анотація:
This article examines violations and crimes against human rights committed during the period of transitional justice. This topic is extremely actual for Ukraine today, thus it provokes countless discussions. Transitional justice is a complex of special measures towards reaching peace after armed conflict, reaching democracy after authoritarianism. The main aim of this conception is fairness. The last one must be established in relation to the victims of violations of human rights, in particular, the right to life and prohibition of torture. The family of the victim, for its part, has the right to know what really happened and demand reparation for the moral suffering. In fact, the human rights violation occurs in the temporarily ungoverned territories of Ukraine every day. In case the state has no opportunity to exercise effective control over the entire territory of our country and ensure all the rights set forth in the European convention on human rights for its citizens fully, after the war the state has a duty to restore valuable human rights such as the right to life and the prohibition of torture. Consequently, it is necessary to be getting ready for this period immediately. We should take into account the mechanisms of restoring justice in other countries as well as analyse the jurisprudence of the European Court of Human Rights relating to human rights violation during armed conflicts. In particular, this article explores the proceedings against Russia, Turkey, former Yugoslav Republic of Macedonia that may be relevant for Ukraine. Obviously, for bringing the perpetrators to justice and in order to avoid impunity, a process of documentation or another effective instrument for recording the acts against human rights stays complicated, major and open for further development. Key words: transitional justice, right to life, prohibition of torture, European Court of Human Rights, European Convention on Human Rights.