Case Law Of Court Research Articles

Case law of the European court of human rights on compensation for non-pecuniary damage: Certain issues

Compensation is considered a means of restoring the violated rights. Ukrainian legislation directly provides for the possibility of compensation for non-pecuniary damage, however, a number of problems arise when considering cases on this issue in national courts. Firstly, there is no legally enshrined definition of this concept in Ukraine. Secondly, there is no single methodology or model for assessing moral damage, no formula for calculation is established at the legislative level, due to which judges assign different amounts of compensation for harm caused under the same or similar circumstances. Besides, there are no clear criteria for determining the amount of damage caused, which makes it almost impossible to unambiguously calculate, for example, the extent of the mental pain or the infringement on dignity and honor in property equivalent, that is, it is in fact a conditional compensation. Reference to the case law of the ECHR on this matter may contribute to solving these problems, because its decisions are referred to by national courts. The ECHR has not developed a universal formula for calculating the amount of non-pecuniary damage, but there are certain criteria for its assessment: the nature of the offense and violated right; payments accrued based on the results of consideration of previous cases; victim’s personality; the respondent State; collective statements or mass offenses; other circumstances of the case.

The Right to Social Protection: Analysis of the Case Law of the Constitutional Court of Ukraine

The Right to Social Protection: Analysis of the Case Law of the Constitutional Court of Ukraine

Právo vlastniť a pokojne užívať majetok aj v kontexte jedenásťročného sporu žalobcov

The main aim of this article is to introduce the reader to the system of the ownership right protection in the context of the national legislation as well as the case law of the European Court of Human Rights, using an illustrative example of spouses (plaintiffs), who have been seeking, for more than eleven years in court proceedings initiated by an action brought, issuance by a competent first instance court of a decision ordering the defendants to (i) remove the constructions and appurtenances thereto, which they are using illegally, and (ii) remove the movable assets from the real estate (i.e. from the land plots) which is the plaintiffs’ joint property. The plaintiffs consider that the essence of the violation of their right to own and peacefully enjoy their property, in the circumstances of the present case, is that for more than 11 years since the action was brought to the court, the plaintiffs have had no definitive legal title by virtue of which they could de facto dispose of their property, despite being de jure owners of the concerned real estate. Due to illegal constructions (or so-called “black constructions”) built on the land plots that are the plaintiffs’ joint property, the plaintiffs are prevented from the peaceful use, enjoyment of the fruits and benefits, or disposal of the subject-matter of their ownership.

Про концепцію соціальної відповідальності бізнесу та унормування відповідальності материнських компаній

The article identifies various areas of violations of human rights and freedoms by industrial companies, which require an adequate response from the legislator. The experience of French and German law in protecting human rights and freedoms from the adverse impact of economic activity may be useful. This also applies to the liability of a parent company for the actions of its subsidiaries, given the existence of control over the activities of the latter, and the adoption of decisions that indicate the level of influence they exert. Despite the fact that economic freedoms are currently prioritized over social interests, social responsibility of business is becoming increasingly important. The article focuses on the issues of determining the type, amount of liability and assessment of violations identified in the course of analyzing the case law in disputes on social responsibility of business in the presence of a negative impact on human rights and freedoms. The author analyzes the tort liability of legal entities for human rights violations, noting that it is characterized by pecuniary compensation. In the absence of actual damages, the tort liability of companies loses its meaning. The case law of the European Court of Human Rights and Ukrainian court practice does not provide for compensation for the mere fact of interference or the mere existence of a negative impact on human rights and freedoms by a business entity. This makes it necessary to find other approaches to respond to the negative consequences of companies’ activities. The problem is exacerbated by the fact that damage to human rights and freedoms is difficult to measure and evaluate: determining the equivalent value of a violation of the right to privacy, personal information, loss of comfort, etc. On the contrary, the practice of English courts is to award compensation to the claimants whose rights and freedoms have been violated, which distinguishes them from the tort liability of companies.

The right to peaceful possession of property in conditions of international armed conflict

The article is devoted to the analysis of the provisions of international human rights law and international humanitarian law regarding the protection of the right to property, in particular the permitted limitations of this right, the relevant practice of international human rights courts and international criminal tribunals, the connection between the institution of derogation and the law of armed conflicts, as well as problematic issues of the protection of the right to property damaged during the russian-Ukrainian armed conflict. The author considers the provisions of some international treaties, which provide for the protection of the right to own property in peacetime, as well as the case-law of the European Court of Human Rights related to the violation of the right of applicants to own their property in accordance with Protocol No. 1 to the Convention on the Protection of Human Rights and Fundamental Freedoms in connection with an international armed conflict or a situation of occupation. The author also analyzes the provisions of some sources of international humanitarian law regarding property as an object that must be protected during armed conflicts, in particular in occupied territories, and also provides examples of cases of international criminal tribunals, in whose decisions the destruction of property was recognized as a component of crimes against humanity. The author examines the question of the relationship between the sources of international human rights law and international humanitarian law in the context of the protection of the right to peaceful possession of property. The peculiarities of the institution of derogation in the context of the right to property in the conditions of an international armed conflict are analyzed. Ukraine’s derogation from its obligations under international human rights treaties, including the right to peaceful possession of property, in the conditions of russian armed aggression, is studied. In addition, in the context of the armed conflict between Ukraine and russia, the objects of property rights and the interested subjects of the right to property, which is violated or limited as a result of military operation, are singled out, and the collective dimension of the right to property, which was damaged during the russian-Ukrainian armed conflict, was investigated.

The competence to set the date of elections and the practice of merging elections in the Romanian Constitutional Court's case law

"By organizing at the same time the elections for the Chamber of Deputies and the Senate and those for the local public administration authorities, citizens will have to perform a much more complex task – expressing their choice on 6 ballot papers –, [...] The complexity of voting operations may have the effect of excluding from voting voters who, independently of their will, will not be able to vote during the time allocated for voting, until the polls close." (Decision No 51 of January 25, 2012)

Brussels in Strasbourg: Theoretical Reflections on the Impact of European Union Law on the Case-Law of the European Court of Human Rights

Brussels in Strasbourg: Theoretical Reflections on the Impact of European Union Law on the Case-Law of the European Court of Human Rights

Russian Public Assembly Law: Constitutional Evolution 1993–2023

The current Public Assembly Law in the Russian Federation, which regulates the implementation of the constitutional right to freedom of peaceful assembly in Russia, has been developed and formed over the course of the past three decades, following the ratification of the Russian Constitution in 1993. The Public Assembly Law can be described as an important institute of public law as well as a sub-branch of the constitutional law of Russia, which combines constitutional provisions, relevant norms of the federal and regional laws and case law of the Russian Constitutional Court regarding the implementation of the Freedom of Peaceful Assembly. The modern Public Assembly Law has high importance for the development of a democratic society and for the rule of law. The author investigates the constitutional adjudication of the Russian Constitutional Court from 1993–2023, focusing in particular on its eleven judgments concerning the implementation of Article 31 of the Russian Constitution, which defines the constitutional standards of the Freedom of Peaceful Assembly. The author also examines several prominent cases of the Russian Constitutional Court, referred to as decisions with positive content, which are crucial for obtaining a systemic overview of the current problems of the Public Assembly Law in the Russian Federation.

Negotiated Agreements as an Alternative to Criminal Trials: Policy Lessons from the Hungarian Example

Abstract This paper looks at ways of speeding up domestic criminal proceedings. Both the Charter of Fundamental Rights of the European Union and the case law of the European Court of Human Rights in Strasbourg encourage Member States to ensure that their courts deliver judgments within a reasonable time. The present paper deals with the new Hungarian cooperation system, including the trial waiver and the preparatory session, which is a pre-trial meeting in the court phase. These have achieved significant results in speeding up and simplifying proceedings without limiting the rights of the accused and offer a genuine rule of law solution for efficient criminal proceedings, all while preventing unjustified delays in proceedings. Initial experience in practice has shown that these Hungarian legal instruments could serve as an excellent example for countries facing similar challenges in developing criminal politics and criminal justice policies.

National constitutional courts’ use of the ECJ's precedents: The case study of Czechia

This article interrogates how Member States’ constitutional courts make use of the case-law of the European Court of Justice. Instead of focusing on the extreme instances of open backlash, we put forward a data-driven methodological approach to the study of Europeanization of national constitutional courts. Drawing on the use of automatic text analysis, we suggest that searching for the formal citations of the rulings of the European Court of Justice in the constitutional courts’ case-law contributes to nuanced understanding of their role within the EU. By means of a case study of the Czech Constitutional Court's case-law (more than 71 000 decisions issued between the years 2004 and 2022), we demonstrate a way to explore the so far under-researched area of EU law adjudication where the majority of strategic behaviour might be taking place.

The role of Turkish administrative courts in developing jurisprudence on refugee rights: review of the judgments of the administrative courts from 2014 to 2021

ABSTRACT Turkish administrative courts have a unique role in developing jurisprudence after the adoption of the Law on Foreigners and International Protection in 2014. This article analyses Turkish administrative courts' judgements from 2014 to January 2021 and examines whether there is consistency in the case law of the administrative courts. This article concludes that the decision-making of the administrative courts is still too much of a lottery. There are three main reasons that lead to inconsistencies in the jurisprudence of the administrative courts. The first reason is that court decisions explaining the reasons for their adjudication are not published. Second, some articles in the asylum law give large discretion to the administrative authorities under public security and public order. The third reason is deficiencies in the training of administrative judges and a lack of case law.

Constitutional public reason book symposium: public reason and the smoking out of illicit motives

This article reviews Wojciech Sadurski’s book on public reason. Sadurski’s main argument is that courts can determine whether a law expresses fundamental respect for persons by performing a motive review. The review will focus predominantly on the second part of Sadurski’s book where he reconstructs the domestic case law of different constitutional and supreme courts to highlight that these courts often make use of a motive review without explicitly saying so. The article offers four comments: first, I believe that Sadurski’s reconstruction of the case law of different constitutional courts is largely correct. Courts do indeed often perform a motive review under the proportionality test without explicitly acknowledging this. Second, I do not share Sadurski’s normative inclination that courts should be more open in labelling their motive review as such as this could lead to political backlash. Third, I fear that the concept of public reason as motive review is underinclusive. I argue that motive review does not cover (and should not cover) the majority of what courts do when reviewing government action. The final comment addresses the third part of the book on international governance, where I argue that Sadurski’s conception is slightly too court-centric.

PROTECTION OF THE RULE OF LAW AS A CONSTITUTIONAL PRINCIPLE AND INDIVIDUAL RIGHT BY THE CONSTITUTIONAL COURT OF KOSOVO

This article examines the case law of the Constitutional Court of Kosovo and explains how this court protects the rule of law, as a fundamental constitutional principle and as a human right. The example of Kosovo is intriguing because of the peculiar historical, political and legal backdrop against which the Constitution was drafted, and the constitutional adjudication that has taken place. Methodologically, this analysis is based on a review of the landmark cases when the Constitutional Court of Kosovo reasoned its decisions with reference to the specific constitutional provisions that enshrine the principle of the rule of law. The paper highlights that the Constitutional Court of Kosovo refers to the rule of law as a general normative framework for adjudicating cases of abstract constitutional review, as well as for deciding cases submitted by individuals – mostly in conjunction with the right to a fair and impartial trial. By scrutinizing the cases of Kosovo, this analysis highlights the role of constitutional courts in ensuring that general constitutional principles, such as the rule of law, are justiciable and have practical effect for human rights of individuals.

Evaluating International Criminal Procedures: Inquisitorial, Adversarial, or Hybrid - Lessons for the Pakistani Legal System

This Article examines two key aspects of international criminal procedure (ICP): the normative frameworks that govern ICP and procedures being utilized by International Criminal Tribunals (ICT) and Courts. It examines the established norms and practices of international tribunals. The discussion encompasses the formulation of standards, guidelines, and guarantees aimed at preventing judicial errors. It evaluates that whether ICP can be characterized as "adversarial," "inquisitorial," or “a blend of both”. It examines the case law and legal framework of international courts and tribunals. Employing a comparative and analytical research methodology, this article demonstrates that a genuinely hybrid procedure has emerged through successive amendments to the ICT for the former Yugoslavia and its rules of Procedure and Evidence (RPE) and the formulation of the Rome Statute. This procedure effectively synthesizes elements from both traditions; common law (adversarial) and civil law (inquisitorial) into a cohesive international legal framework. The article emphasizes the convergence of legal positions across jurisdictions. The observed similarities in legal frameworks arise from the universal recognition of the importance of justice in shaping human coexistence. However, the article acknowledges that the diversity in human minds leads to variations in devising solutions and creating means, explaining the inherent disparities in legal approaches across different contexts. It will be beneficial for Pakistan to adopt Islamic Criminal Procedure having hybrid criminal procedure that will improve the efficiency of our judicial system, ensuring swift resolution of criminal cases with effective outcomes.

Religious Freedom in the Workplace in the Case Law of the European Court of Human Rights

Wolność wyznania jest jednym z fundamentalnych praw podstawowych. Jako prawo człowieka, gwarantowana jest przez prawo międzynarodowe, prawo europejskie, jak i prawa krajowe. Jest to prawo, którego realizacja niesie ze sobą wiele wyzwań, szczególnie w kontekście konfliktu między indywidualną wolnością, równością oraz między autonomią jednostki a kolektywnymi swobodami grup religijnych. Szczególnie interesujące jest zagadnienie jego ochrony w środowisku pracy. Głównym celem artykułu jest zbadanie, czy orzecznictwo Europejskiego Trybunału Praw Człowieka (ETPCz) skutecznie reguluje zagadnienie wolności religijnej w miejscu pracy, zapewniając pracownikom adekwatną ochronę. Przeprowadzana jest analiza art. 9 Europejskiej Konwencji Praw Człowieka ustanawiającego wolność religijną oraz odpowiedniego orzecznictwa ETPCz.

Parallel Proceedings – Investment Arbitration and the European Court of Human Rights

Abstract This contribution addresses the intersection of international human rights law and international economic law in situations where investors can bring claims under both protection systems. It discusses why multiple proceedings concerning one set of facts may be problematic and identifies situations in which duplication may occur. It presents instruments that have been developed at the domestic or international level to prevent this phenomenon. The article analyses the case law of the European Court of Human Rights (ECtHR) as well as of investment arbitral tribunals dealing with parallel or subsequent litigations. The conclusions set out whether the mechanisms used by arbitral tribunals and the ECtHR are adequate to deal with the phenomenon of potential multiple proceedings.

Extraterritorial Application of the European Convention on Human Rights at Sea

We live in a world where we face countless crises and directly experience armed conflicts. The seas, such as the Red Sea, the Black Sea, and South China Sea hold strategic importance in these crises and conflicts. The sea is a unique and challenging environment, considering both its distinct physical characteristics and the jurisdictional issues. At sea, human rights can be compromised in various ways, and these cases often go unreported or they lack sufficient public awareness. It is also an expansive area to monitor, and the effectiveness of the police or military forces is sometimes hindered by limited resources or the reluctance to take action due to the non-compliance with legal regulations. It is the responsibility of the international community to encourage the authorities to prosecute the perpetrators by establishing a legal framework that effectively safeguards human rights and can be enforced by state authorities. This paper aims to explore the challenges of enforcing human rights during the arrest and detention process in cases of transnational crimes or violations of international law, such as piracy, terrorism, and drug trafficking committed on sea, involving the case law of the European Court of Human Rights.

Whistleblowing as a Form of Expression: Comprehensive Overview of the Concept of Whistleblowing and Its Freedom of Expression Aspects, with Particular Reference to the Case Law of the European Court of Human Rights

This study endeavors to examine the phenomenon of whistleblowing within the context of freedom of expression. The paper is organized into three key segments, each addressing distinct aspects. Initially, it delves into the challenges and complexities inherent in conceptualizing whistleblowing. Subsequently, the paper establishes a theoretical foundation for the fundamental rights approach to whistleblowing, laying the groundwork for the final section: an analysis of whistleblowing cases through the lens of the European Court of Human Rights’ case law. The research methodology employed comprises secondary analysis (desk research) and legal case studies. The study aims to achieve a dual purpose: firstly, to offer a comprehensive understanding of the legal analysis and interpretation of whistleblowing; and secondly, to elucidate the evolving legal standards and criteria governing whistleblowing in the context of freedom of expression over recent years.

Improving the Information and Legal Support of the Judicial System of Ukraine: Experience of the European Court of Human Rights

The research proposes a comprehensive approach to modernizing the information and legal support (ILS) of the judicial system of Ukraine, given European integration processes and the war of Russia against Ukraine. The need for substantial modernization of existing court automation systems to integrate with European systems and improve analytical capabilities for processing large data sets was identified. It was specified that the legal framework for the functioning of court information systems (IS) must be adapted to European legislation, and the organization of data warehouses and information flows must comply with EU standards. The principles of the functioning of court information systems should ensure the possibility of easy integration with the IS of the EU. To investigate war crimes committed by Russia in Ukraine, it is proposed to establish reliable ILS, given the case law of the European Court of Human Rights (ECHR) in cases of human rights violations during conflicts. An innovative approach based on the use of artificial intelligence (AI) tools is proposed to increase the efficiency of judicial decision analysis and improve the ILS of the judicial system of Ukraine. It has been proven that the integration of the judicial systems of Ukraine and the EU is possible, provided there are reliable data analysis tools, process standardization, digitalization, data security, and integrated registers. The effectiveness of applying IT tools in the ILS of courts has been confirmed. It is proposed to establish specialized hybrid courts in Ukraine with international experts to address war crimes, harmonize legislation with international law, and implement the case law of the ECHR.

OBLIGATIONS RELATED TO THE APPLICATION OF A PREVENTIVE MEASURE IN THE FORM OF BAIL: PROBLEMS OF IMPLEMENTATION IN THE CONTEXT OF THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

The purpose of the article is to identify the problems in the fulfilment of the obligations related to bail as a preventive measure based on the approaches formulated in the case law of the European Court of Human Rights, as well as to offer recommendations on how to resolve them. Methods. The general philosophical basis of the study was formed by axiological and hermeneutical approaches. In particular, the first one allowed to carry out a value analysis of the fundamental human right to liberty and to assess the impact of the amount of bail to provide an effective alternative for the restriction of this right. Meanwhile, the second made it possible to apply an in-depth study and interpretation of the legal texts of the European Court of Human Rights judgments and the national legislation. When building the system of recommendations, we used the systemic and structural method, as well as the logical research method and the method of legal modelling with. Results and conclusions. The analysis of the legal positions of the ECtHR made it possible to conditionally single out the following standards and recommendations for national judges for ensuring the legality and reasonableness of the determination the amount of bail in criminal proceedings: 1) the main purpose of bail is to ensure the appearance of a person, not to punish him or her or to create conditions for compensation for the damage caused by a criminal offence; 2) the accuracy in determining the amount of bail as an alternative to possible keeping in custody should be equal to the thoroughness in justifying the continued keeping of a person in custody; 3) if the bail is provided by the suspect/accused, the key thing to consider when determining the optimal amount of bail is his/her assets (property status) and solvency. However, if the bail is provided by another person (the bail bondsman), the relationship between the bail bondsman and the suspect/accused should be taken into account to determine the effective bail amount; 4) the extent of the damage caused by the criminal offence may be taken into account as an exception when determining the bail amount - but this cannot be applied as a general rule due to the different purpose of the bail; 5) a suspect/accused person who is being considered the possibility of being granted bail must provide the court with information that may be necessary to adequately determine the amount of potential bail and be verified for this aim; 6) the amount of bail must be substantiated in the decision of the investigating judge or court, which will serve as an important guarantee of preventing arbitrariness; 7) failure of a person to fulfil the obligation to provide bail after it has been set may be a sign that the amount of bail is excessive and disproportionate for the suspect/accused.