Religious Associations as a National Security Threat: The Russian View in Light of European Standards

2017 ◽  
Vol 42 (2-3) ◽  
pp. 101-133
Author(s):  
Olga Kudriashova
Keyword(s):  
Human Rights ◽  
National Security ◽  
Case Law ◽  
European Convention ◽  
Security Threat ◽  
Traditional Religions ◽  
European Court ◽  
Relevant Case ◽  
Religious Associations ◽  
European Standards

This article focuses on the Russian practice of suppressing non-traditional religious associations under the guise of protecting national security. Russian legislation and case law are discussed in light of European standards concerning limitations of human rights, including the principles of legal certainty and proportionality. The author concludes that despite the declaration of the principle of ideological diversity and religious freedom in the Constitution of the Russian Federation (hereinafter, “the rf Constitution”), Russian lawmakers and the judiciary are wary of non-traditional religions, regarding them as a national security threat. This tendency is demonstrated by an analysis of registration requirements, as well as the country’s anti-extremism law and the relevant case law. The author examines the following problems of Russian regulation: the vagueness of the law on which the limitations are based and the weak argumentation of judicial decisions by which limitations are imposed. The author concludes that Russian legislation and the relevant case law strongly deviate from the standards set in the European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) and in the jurisprudence of the European Court of Human Rights (ECtHR). Meanwhile, according to the rf Constitution, the echr is part of the Russian legal system and prevails over Russian laws. The author’s aim is to outline the space provided in Russian law for the abuse of non-traditional religions by Russian authorities.

‘Unionisation’ of the European Court of Human Rights’ ne bis in idem jurisprudence: the Case of Mihalache v Romania

2019 ◽  
Vol 11 (2) ◽  
pp. 227-239
Author(s):  
Cedric Serneels
Keyword(s):  
European Union ◽  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Ne Bis In Idem ◽  
Relevant Case

This article analyses the decision of the European Court of Human Rights (ECtHR) in the case of Mihalache v Romania. In the judgment, the Court, dealing with the application of the ne bis in idem principle, further elaborates on the different components of the concept ‘final acquittal or conviction’ under Article 4 of Protocol No 7 to the European Convention on Human Rights. The author studies this aspect of the ruling through the lens of judicial dialogue and examines in particular the influence of relevant case law of the Court of Justice of the European Union on the ECtHR’s reasoning.

Sources and Content of the Pan-European General Principles of Good Administration

2020 ◽  
pp. 19-54
Author(s):  
Ulrich Stelkens ◽  
Agnė Andrijauskaitė
Keyword(s):  
Human Rights ◽  
Data Protection ◽  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Soft Law ◽  
Council Of Europe ◽  
European Court ◽  
Relevant Case

This chapter examines the sources of the pan-European principles of good administration developed by the Council of Europe (CoE). It maps the degree of concretization these principles have reached, and how far they have spread concerning the classical and modern topics of administrative law. It scrutinizes the Statute of the CoE, the European Convention on Human Rights, and the (relevant) case law of the European Court of Human Rights, other CoE conventions (such as the CoE Convention on Data Protection, the Convention on Access to Official Documents, and the European Charter of Local Self Government), and the recommendations and other soft law on good administration of the Committee of Ministers and other institutions of the CoE. The chapter concludes that the principles deriving from these sources should not be considered as a loose bundle of various rules in administrative matters but instead form a ‘coherent whole’.

National Margin of Appreciation as a Standard of Review for Economic Sanctions: in Search of the Golden Fleece?

2018 ◽  
Vol 27 (1) ◽  
pp. 53-75
Author(s):  
Viktoriia Lapa
Keyword(s):  
Human Rights ◽  
National Security ◽  
Economic Sanctions ◽  
Case Law ◽  
European Convention ◽  
The European Union ◽  
Frequent Use ◽  
European Court ◽  
Margin Of Appreciation ◽  
International Economic Law

Recent economic sanctions imposed by the EU and US on Russia in relation to the Ukrainian conflict revived a discussion concerning the security exception clauses in international law. These clauses permit a particular state to take action aimed at protection of its national security that might be otherwise inconsistent with its substantive treaty obligations. Taking into account the ambiguity of such clauses, the question arises as to how to verify whether the adopted sanctions are indeed introduced with national security in mind and not to pursue pure protectionist aims. This article examines the national margin of appreciation from the perspective of its suitability as a standard of review for sanctions introduced under umbrella of the security exception provision of the General Agreement on Tariffs and Trade. Since this doctrine was developed in the case-law of the European Court of Human Rights both academics and practitioners alike are undecided as to its application in international trade and investment law disputes. In search of inspiration for an appropriate standard of review, the article briefly analyses recent Court of Justice of the European Union cases dealing with the security exception provisions. Drawing from the analysis of the relevant case-law of the international tribunals, the research points out that despite its frequent use by the European Court of Human Rights this doctrine remains vague, which, in turn, makes it hard to transplant to international economic law. The author concludes that the abstract contours of the national margin of appreciation doctrine, combined with diverging goals of the European Convention on Human Rights and world trade systems, make it unsuited for review of economic sanctions.

scholarly journals Izvršenje presuda Europskog suda za ljudska prava u građanskopravnim međunarodnim otmicama djece u Republici Hrvatskoj – nova otvorena pitanja

2021 ◽  
Vol 71 (3-4) ◽  
pp. 347-375
Author(s):  
Mirela Župan ◽  
◽  
Paula Poretti ◽  
Martina Drventić ◽  
◽  
...  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Private International Law ◽  
Child Abduction ◽  
European Court ◽  
International Child ◽  
Protection Of Human Rights ◽  
European Standards ◽  
The Right

The European Court of Human Rights (ECtHR) established a violation of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in several cases of international parental child abduction before Croatian courts. The length and the manner in which the proceedings concerning the return of the child were conducted constituted grounds for establishment of a violation of the right to a fair trial and the right to respect for private and family life. The execution of these judgments is still pending before the Committee of Ministers, despite the fact that the measures ordered resulted with a modified Croatian legal regime introduced through the Act on the Application of the Convention on the Civil Aspects of International Child Abduction. The Act includes a number of procedural improvements which align the practice of Croatian courts with international and European standards. However, the judgment of the ECtHR in Adžić v Croatia (no. 2) reveals that there is still no unambiguous answer to the question whether extraordinary appellate proceedings should be permitted in child abduction cases. Hence, the authors critically analyse the possibility of initiating an extraordinary appellate proceedings in these cases from a civil procedure and private international law aspect. The conclusion takes into account the specific circumstances of the case at hand as well as the case law of the ECtHR in relevant cases concerning other contracting states.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

The Debate about Soviet Genocide in Lithuania in the Case Law of The European Court of Human Rights

2020 ◽  
pp. 1-16
Author(s):  
Dovilė Sagatienė
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
Genocide Convention ◽  
Legal Regulations ◽  
Legal Instrument ◽  
Soviet Occupation ◽  
European Court

Abstract Since 1990 Lithuania has been claiming that what happened there during Soviet occupation is genocide, as per the 1948 Genocide Convention, which embodies universal justice for suppressed nations and other groups. Due to Soviet actions in Lithuania throughout the periods of 1940-1941 and 1944-1990, the country lost almost one fifth of its population. The application of Lithuanian national legal regulations regarding this issue has been recently discussed in the framework of another postwar international legal instrument – the European Convention of Human Rights (1950). The goal of this article is to examine the main debates, which were revealed by the European Court of Human Rights in the cases of Vasiliauskas v. Lithuania (2015) and Drėlingas v. Lithuania (2019), regarding the killings of Lithuanian partisans, including the recognition of the significance of partisans for the Lithuanian nation, the foreseeability of genocide “in part,” as well as the punishment for complicity in killing Lithuanian partisans.

The European Convention on Human Rights and International Law

2007 ◽  
Vol 56 (2) ◽  
pp. 217-231 ◽  
Author(s):  
Luzius Wildhaber
Keyword(s):  
Human Rights ◽  
International Law ◽  
Comparative Law ◽  
Case Law ◽  
European Convention ◽  
Mutual Relationship ◽  
Public International Law ◽  
European Court ◽  
Special Character ◽  
British Institute

AbstractThis article is an expanded and footnoted version of the lectur given at the British Institute of International and Comparative Law on Tuesday 21 March 2006, entitled ‘International Law in the European Court of Human Rights’.The article begins with some comparative comments on the application of the European Convention on Human Rights in monistic and dualistic systems It then discusses in detail the European Court's case law which confirms that the Convention, despite its special character as a human rights treaty, is indeed part of public international law. It concludes that the Convention and international law find themselves in a kind of interactive mutual relationship. checking and buildine on each other.

Is the assessment under Article 8 ECHR for migrants justifiable?

2021 ◽  
pp. 1023263X2110614
Author(s):  
Jennie Edlund ◽  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
European Convention ◽  
Individual Rights ◽  
Foreign Nationals ◽  
European Court ◽  
The Family ◽  
The Individual ◽  
The Way

The paper analyses the protection granted under Article 8 of the European Convention of Human Rights for different immigration cases. The way the European Court of Human Rights determines compliance with Article 8 for settled migrants differs from the way the Court determines compliance for foreign nationals seeking entry or requesting to regularize their irregular migration status. The paper argues that the European Court of Human Rights application of different principles when determining a States’ positive and negative obligations is contradicting its own case law. It also argues that the absence of justification grounds for the refusal of foreign nationals who are seeking entry lacks legitimacy. By treating all immigration cases under Article 8(2) the paper suggests that the differentiation between cases should be based on how a refusal of entry or an expulsion would impact on the family life. The paper also suggests that more consideration should be given towards the insiders interests when balancing the individual rights against the state's interests. These changes would lead to a more consistent and fair case law and generate a more convergent practice by the states which will increase the precedent value of the Court's judgements.

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