scholarly journals Controlling irregular migration: International human rights standards and the Hungarian legal framework

2018 ◽  
Vol 16 (4) ◽  
pp. 432-451 ◽  
Author(s):  
Daniel Gyollai ◽  
Anthony Amatrudo
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
Case Law ◽  
Legal Framework ◽  
Refugee Status ◽  
European Court ◽  
Southern Border ◽  
Wire Fence ◽  
New Policies ◽  
Human Rights Standards

In the summer of 2015 Hungary constructed a 175 km long barbed-wire fence at its southern border with Serbia. New criminal offences and asylum procedures were introduced that limited access to refugee status determination and ignored agreed EU asylum policy, deterring and de facto preventing asylum seekers from entering Hungarian territory. This paper provides an analysis of these new measures, which criminalized asylum seekers, and the subsequent Hungarian policy in relation to the case law of the European Court of Human Rights – arguing that the Hungarian authorities excessively abused their discretion in implementing these new policies of immigration and border control.

scholarly journals Peculiarities of application of the practice of the European Court of Human Rights in the justice in Ukraine

2021 ◽  
pp. 14-17
Author(s):  
Andrii Rybalkin ◽  
Yuliia Nosenko
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Case Law ◽  
Legal Framework ◽  
Reform Process ◽  
Scientific Article ◽  
Judicial Reform ◽  
International Human Rights Law ◽  
European Court ◽  
Human Rights Standards

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

Freedom of Religion in the Workplace

2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Case Law ◽  
Legal Framework ◽  
The State ◽  
European Convention ◽  
Freedom Of Religion ◽  
European Court

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.

Re-Conceptualizing the Right to Seek and Obtain Asylum in International Law

2015 ◽  
Vol 4 (2) ◽  
pp. 303-332
Author(s):  
Salvatore Fabio Nicolosi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Asylum Seekers ◽  
International Human Rights ◽  
The Past ◽  
European Court ◽  
Triggering Factor ◽  
The Right ◽  
Human Rights Standards

Over the past few years the issue of asylum has progressively become interrelated with human rights. Asylum-related stresses, including refugee flows and mass displacements, have mitigated the traditional idea of asylum as an absolute state right, in so far as international human rights standards of protection require that states may have the responsibility to provide asylum seekers with protection. Following this premise, the article argues that the triggering factor of such overturning is significantly represented by the judicial approach to the institution of asylum by regional human rights courts. After setting the background on the interrelation of asylum with human rights, this article conceptualises the right to asylum as derived from the principle of non-refoulement and to this extent it delves into the role of the two regional human rights courts, notably the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), in order to explore whether an emerging judicial cross-fertilisation may contribute to re-conceptualisation of the right to asylum from a human rights perspective.

scholarly journals A Judicial Review of the De Facto Detention of Foreigners in Turkey

2020 ◽  
Vol 10 (2) ◽  
pp. 143-153
Author(s):  
Gamze Ovacik
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Framework ◽  
Court Decisions ◽  
Administrative Practices ◽  
The Rule Of Law ◽  
European Court ◽  
Domestic Law

The term, de facto detention, refers to instances in which foreigners are held or deprived of their liberty usually with a view to preventing their entry into a country or expelling them from a country, but without implementing a legally prescribed detention regime that satisfies the criteria of the rule of law. The first type of de facto detention occurs when provisions regulating detention are absent or deficient in the legal framework. The second type takes place when domestic law sufficiently regulates detention regimes; however, the law is not duly implemented in practice. This article examines judicial practices in Turkey in both categories of de facto detention, analysing 37 Turkish court decisions with supporting case law from the European Court of Human Rights. Focusing on case law makes it possible both to track deficiencies in administrative practices and to analyse judicial response as a tool for rectifying unlawful administrative practices.

scholarly journals Problematic aspects of the application of ECHR practice by the courts of Ukraine

2021 ◽  
pp. 19-23
Author(s):  
Oleksandr STOROZHENKO ◽  
Oksana PROHOROVA
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
Original Text ◽  
Statistical Research ◽  
National Courts ◽  
Human Rights Practice ◽  
European Court ◽  
Protection Of Human Rights ◽  
Human Rights Standards

Introduction. Ukraine signed Convention for the Protection of Human Rights and Fundamental Freedoms many years ago to provide effective protection of fundamental rights for every human that stands out on its' territory. This document is interpreted by the European Court of Human Rights. Practice of this Court must be used by national courts of Ukraine to match international human rights' standards. However, according to results of statistical research, application of that legal positions by national judges aren’t correct enough. The purpose of the paper is to identify and analyze problematic issues of application of the case law of the European Court of Human Rights by national courts of Ukraine. The authors also wanted to investigate the national practice of using the ECHR' legal positions and to provide recommendations to address shortcomings in such application. Results. The paper considers the issue of application of the case law of the European Court of Human Rights by the national courts of Ukraine. The legal nature of ECHR decisions' is studied. Authors are stick to the idea that judgments of ECHR aren’t classic precedent. There are authors' opinions about the problem of applying the practice of the European Court of Human Rights, which has no official translation. They think that judges need to be taught professional English and French. So that they will be able to understand original text of judgments correct. There is also a thought about necessity of creating special database with Ukrainian translation of some judgments. Authors have also revealed problematic aspects of the application such as: erroneous, manipulative, formal references. There are some decisions of Ukrainian courts that have been analyzed by the authors. Erroneous references to decisions of the European Court of Human Rights in such cases have been determined. Authors stated that the reason of those defects is insufficient awareness of judges about the specifics of application legal positions of ECHR. Conclusion. According to the results of the work, the importance of education and training of future judges is stated. In addition, authors emphasized on necessity of further observations of this question.

scholarly journals The Threat of Destitution as a Deterrent against Asylum Seeking in the European Union

Refuge ◽  
2006 ◽  
pp. 81-93 ◽  
Author(s):  
Sylvie Da Lomba
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
Legal Framework ◽  
The European Union ◽  
Human Rights Law ◽  
Host Countries ◽  
Refugee Status ◽  
Eu Member States ◽  
The Right ◽  
The Eu

The problematization of asylum has detrimentally impacted on the provision of support for asylum seekers in host countries. The threat of destitution has become instrumental in restrictive asylum policies and is increasingly used as a deterrent against asylum seeking. The EU experience reveals acute tensions between the EU asylum agenda and the EU Member States’ obligations under international refugee and human rights law. The provision of support for asylum seekers challenges narrow approaches to the realization of socio-economic rights for “others” and to host countries’ duties in that respect. The EU Reception Conditions Directive, which aims to set out standards for the reception of asylum seekers across the Union, exemplifies this predicament. Yet international refugee and human rights law provides a legal framework that establishes minimum standards critical to dignified living for asylum seekers and the protection of the right to seek refugee status in the EU and beyond.

Reforming Property Law in Kosovo: A Clash of Legal Orders

2015 ◽  
Vol 23 (4) ◽  
pp. 566-582
Author(s):  
Marco Roccia
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
International Organizations ◽  
Technical Assistance ◽  
Legal Framework ◽  
Property Law ◽  
The European Union ◽  
Strict Adherence ◽  
European Court ◽  
Human Rights Standards

The legal framework regulating property in Kosovo has been defined as ‘A jumble of laws, regulations, administrative instructions, court practices and directives combine to create a complicated and seemingly impenetrable system for determining contests over immovable property ownership in Kosovo. At the highest level, international human rights standards affect property rights…’1 As in other areas of legislation, laws addressing property issues derive from different periods in Kosovo’s history, that is to say the Yugoslav time, the so-called discriminatory period of the 1990s, UNMIK’s rule of the first decade of the 2000s and, finally, independent Kosovo. Laws are scattered through several legal texts, regulate different aspects of property rights, and often refer to institutions that no longer exist. This paper focuses on the specific issues affecting property law in Kosovo, a sector where international organizations and bilateral cooperation are massively intervening. While assessing legal acts in force and data collected on the field, the author argues how, for an effective reformation of the sector, a clear and coordinated strategy will have to be adopted by the two main donors which, in the next few years, will be launching several technical assistance contracts. Comparing European best practices with the proposed intervention suggested by the European Union and USAID will also give the chance to illustrate how a strict adherence to ECHR standards in the field of property, as the Constitution of Kosovo requires, will bring to light problems already seen in other European countries, that is to say a clash between domestic civil legislation on property, on the one hand, and the case-law of the European Court of Human Rights on Article 1 Protocol 1, on the other. The author will also notice that the tendency to adopt a too political approach, typical of international organizations and donors, in an area characterized by legal principles of a more technical nature, will be cause for additional confusion.

EUROPEAN STANDARDS OF HUMAN RIGHTS IN THE PRACTICE OF THE CONSTITUTIONAL COURT OF UKRAINE

2020 ◽  
Vol 10 (4) ◽  
pp. 21-27
Author(s):  
Oleh Pankevych ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Constitutional Court ◽  
European Court ◽  
Wide Range ◽  
Protection Of Human Rights ◽  
European Standards ◽  
Liberal Communitarianism ◽  
Human Rights Standards

The article is devoted to the retrospective analysis of some aspects of the application and implementation of European human rights standards in the constitutional proceedings of Ukraine. It is substantiated that the domestic body of constitutional jurisdiction, realizing its role as an instrument for implementing European human rights standards in national legal practice, actively uses the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the Strasbourg Court as arguments to motivate its decisions. In the future, not only the formal but also the substantive aspect of the use of the Convention and the case law of the European Court of Human Rights in the acts of the Constitutional Court of Ukraine certainly needs special attention. The following analysis will allow to reveal the "quality" of the reference to these international sources and the relevance of references to them. In the motivating part of its decisions, the Constitutional Court of Ukraine also uses as an additional argumentation a wide range of other international legal acts and decisions of other international and foreign judicial institutions. This aspect of the practice of the Constitutional Court of Ukraine obviously deserves to be the subject of our further research. Based on the validity of our conclusion in previous publications that the main philosophical basis of modern decisions of the Strasbourg Court are the postulates of liberal communitarianism as a result of a kind of convergence of liberal and communitarian ideologues, we believe that, in turn, these postulates can�t be found in the decisions of the Constitutional Court of Ukraine (when it uses the provisions of the Convention and the case law of the European Court of Human Rights for additional argumentation of its own legal positions). At the same time, this hypothesis still needs to be thoroughly proved in the following special research.

Remedies Available against Asylum Decisions and Deportation Orders in Turkey: An Assessment in View of European Law and the European Convention on Human Rights

2019 ◽  
Vol 88 (2) ◽  
pp. 216-249
Author(s):  
Meltem Ineli-Ciger
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
Case Law ◽  
European Convention ◽  
European Law ◽  
Court Of Justice ◽  
European Court ◽  
Procedural Safeguards ◽  
Effective Remedy ◽  
Judicial Remedies

This article examines administrative and judicial remedies against asylum decisions and deportation orders in Turkey and safeguards provided within these remedies with a view to analysing to what extent they are in line with European law and the European Convention on Human Rights (echr). The article has two main parts. The first part provides an overview of the Turkish asylum system and remedies available against asylum decisions and deportation orders in Turkey. Whereas, the second part identifies main procedural safeguards to be observed in asylum and deportation appeals by reviewing EU asylum acquis, the echr and case law of the European Court of Justice and the European Court of Human Rights. Building on this, the article assesses whether the Turkish law and practice incorporate these procedural safeguards and provide asylum seekers and migrants a right to effective remedy.

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