scholarly journals MIGRANTS IN DETENTION: APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS

TEME ◽  
2020 ◽  
pp. 957
Author(s):  
Veljko Turanjanin ◽  
Snežana Soković
Keyword(s):  
Human Rights ◽  
Main Part ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
The Mediterranean ◽  
Migration Crisis ◽  
The One ◽  
Article 5

The Mediterranean migrant crisis is not calming down and in the last six decades the nature and character of these migrations has changed. The authors deal with the one of the aspects of their position – detention. This work is divided into several parts. In the first part, the authors explore the problem of the migration crisis. After that, they explain in detail an Article 5 of the European Convention on Human Rights and Fundamental Freedoms. The main part of this work is devoted to the jurisprudence of the European Court of Human Rights related to the migrant’s detention.

scholarly journals Criteria for Assessing the Violation of the Right to a Trial Within a Reasonable Time

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Miodrag Simović ◽  
Marina Simović
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Criminal Charges ◽  
The Right ◽  
Article 5

The well-known sentence in English Justice delayed is justice denied confirms historical awareness of the value of a speedy court decision. The right to a fair trial within a reasonable time applies to both civil and criminal proceedings. In a criminal trial, the issue of adjournment may also be regulated under Article 5 paragraph 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms when a person is detained. The rationale for the principle, in criminal proceedings, is “based on the need to allow the accused not to remain for too long in a state of uncertainty as to the outcome of criminal charges against him” (Kart v. Turkey, European Court of Human Rights, 2009). Furthermore, the variability of criminal proceedings that take too long - generally damages the reputation of the alleged offender. The European Court of Human Rights explained that “the reason for the verdict in so many lenghty proceedings is that certain contracting parties have not complied with the ‘reasonable time’ requirement under Article 6 paragraph 1 of the European Convention and have not prescribed a domestic remedy for this type of appeal” (Scordino v. Italy (no. 1) [GC], 2006-V).

scholarly journals Conventional and constitutional regulations of lawful detention of a person without a court decision: criminal procedure aspect

2021 ◽  
pp. 16-25
Author(s):  
Аndrew Medvid
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Court Decision ◽  
European Convention ◽  
Human Right ◽  
Procedure Code ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Article 5

The article compares the requirements for the lawful application of detention without a court decision as a criminal procedure established in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms and in the second sentence of Article 29 part 3 of the Constitution of Ukraine. In particular, the content of the concept of "detention" of a person is studied, the list of subjects who have the right to detain a person without a court decision and the legal content and list of legitimate grounds for detention of a person without a court decision as a criminal procedure are studied and compared. Conventional, constitutional and criminal-procedural norms are also studied, as well as the necessity of mandatory further judicial review of the legality of the detention of a person, including the terms of such review. Based on a detailed analysis of these provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitution of Ukraine, relevant decisions of the European Court of Human Rights and the Criminal Procedure Code of Ukraine, it is established that the grounds for the detention of a person by a general entity, defined by paragraph 2 of Article 207 of the Criminal Procedure Code of Ukraine, and a special entity, defined by subparagraphs 1 and 2 (except subparagraph 3) of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine, in general, correspond to the grounds for lawful detention of a person enshrined in Article 5 § 1 (c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, it cannot be qualified as unlawful interference with the human right to liberty and security of person. At the same time, proposals are formulated to make changes and additions to subparagraph 3 of paragraph 1 of Article 208 of the Criminal Procedure Code of Ukraine. It is also proved that the provisions of paragraph 2 of Article 12 and Articles 209 and 211 of the Criminal Procedure Code of Ukraine are critical provisions of the current legislation of Ukraine regarding the lawful application of detention of a person without a court decision. These provisions actually eliminate some shortcomings and establish the necessary legal and procedural grounds for the clarified application of the provision of the second sentence of part 3 of Article 29 of the Constitution of Ukraine, in accordance with the provisions of paragraph 3 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of their application developed by the European Court of Human Rights.

Council of Europe

2018 ◽  
Author(s):  
Oliver Lewis
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Social Rights ◽  
Council Of Europe ◽  
Persons With Disabilities ◽  
European Committee ◽  
European Court ◽  
Human Rights Treaties ◽  
Fundamental Freedoms ◽  
Two Bodies

This chapter presents an overview of the adjudicative bodies of the Council of Europe—namely, the European Court of Human Rights (established by the European Convention on Human Rights and Fundamental Freedoms (ECHR)) and the European Committee of Social Rights—and outlines their mandates with regard to integrating UN human rights treaties. It analyses how these two bodies have cited the Convention on the Rights of Persons with Disabilities (CRPD). The dataset was forty-five cases dealt with by the Court and two collective complaints decided by the Committee that cite the CRPD up to 2016. Notwithstanding the relatively small size of the dataset, the conclusions are that the Council of Europe system has yet to engage seriously in the CRPD’s jurisprudential opportunities. The reasons for this cannot be ascertained from a desk-based methodology, and further research is required.

scholarly journals 4 The Court and Domestic and International Legal Systems

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Vienna Convention ◽  
Legal Systems ◽  
Member States ◽  
Supreme Courts ◽  
European Court ◽  
Set Up ◽  
The One ◽  
The Relationship

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

7 International Treaties in Russian Judicial and Arbitral Practice

2020 ◽  
Author(s):  
Butler William E
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
European Convention ◽  
International Treaties ◽  
Judicial Practice ◽  
European Court ◽  
Fundamental Freedoms ◽  
Russian Constitution ◽  
The Russian Federation

This chapter explores the role of Soviet and post-Soviet Russian courts in interpreting and applying international treaties. It is clear that Soviet courts dealt more frequently with treaties than the scanty published judicial practice of that period suggests. This early body of treaties may also have contributed to the emergence in the early 1960s of priority being accorded to Soviet treaties insofar as they contained rules providing otherwise than Soviet legislation. Whatever the volume of cases involving treaties that were considered by Soviet courts prior to 1991, the inclusion of Article 15(4) in the 1993 Russian Constitution transformed the situation. A further transformation occurred when the Russian Federation acceded to the 1950 European Convention on Human Rights and Fundamental Freedoms and began to participate in the deliberations of the European Court for Human Rights in Strasbourg.

Cestaro v. Italy: The European Court of Human Rights on the Duty to Criminalise Torture and Italy’s Structural Problem

2017 ◽  
Vol 17 (3) ◽  
pp. 567-585
Author(s):  
Domenico Carolei
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Code ◽  
European Convention ◽  
Structural Problem ◽  
European Court ◽  
The One ◽  
Definition Of ◽  
Normative Content ◽  
Italian Legislation

In April 2015, the European Court of Human Rights (ECtHR) ruled that Italian legislation is inadequate to criminalise acts of torture (Cestaro v. Italy). Following the ECtHR’s decision, the Italian Parliament approved the bill A.C. 2168 which aimed to introduce the crime of torture (Article 613-bis) in the Italian Criminal Code. The bill does not seem to comply with the definition of torture provided by international law, and also neglects the legislative guidelines outlined by the ECtHR in Cestaro v. Italy. The purpose of this article is twofold. On the one hand, it will assess the ECtHR’s decision focusing on Italy’s structural problem and its duty to enact and enforce efficient criminal provisions under Article 3 of the European Convention. On the other hand, it will analyse the normative content of Article 613-bis in order to highlight its weaknesses and propose, on each of them, suggestions for amendment.

scholarly journals Papageorgiou and Others v Greece: Exemption from a Mandatory Course in Religion and the Art of Reading between the Lines

2020 ◽  
Vol 22 (3) ◽  
pp. 355-360
Author(s):  
Wojciech Brzozowski
Keyword(s):  
Human Rights ◽  
Religious Education ◽  
Religious Studies ◽  
European Convention ◽  
European Court ◽  
New Challenges ◽  
The One ◽  
Scholarly Attention

Religious education is probably one of the most attractive topics in law and religious studies – a truly bottomless pit which, every now and then, reveals new questions and new challenges. The most recent judgment of the European Court of Human Rights (ECtHR) concerning this matter is the one delivered on 31 October 2019 in the case of Papageorgiou and others. The judgment only became final at the end of January 2020, under Article 44(2) of the European Convention of Human Rights (ECHR), so as yet it has not received much scholarly attention. However, it should be expected that there will be no lack of such attention, as the judgment deserves it for at least two reasons.

Does Self-isolation Violate the Right to Liberty? An Analysis of the European Court of Human Rights’ Practice in Light of the Ukrainian Experience

2020 ◽  
Vol 27 (4) ◽  
pp. 368-385
Author(s):  
Yana Litins’ka ◽  
Oleksandra Karpenko
Keyword(s):  
Human Rights ◽  
Stress Test ◽  
European Convention ◽  
Legal Systems ◽  
Human Rights Practice ◽  
Rapid Action ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
The Right

Abstract COVID-19 became a stress-test for many legal systems because it required that a balance be found between rapid action to prevent the spread of the disease, and continued respect for human rights. Many states in Europe, including Ukraine, chose to enforce an obligation to self-isolate. In this article we review what the obligation to self-isolate entails in the case of Ukraine. We also analyse whether such an obligation should be viewed as a deprivation or a mere restriction of liberty, and if it is permissible under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

Sign in / Sign up

Export Citation Format

Share Document