Jurisprudence Of European Court Research Articles

The role of human dignity in the jurisprudence of the African Commission on Human and Peoples’ Rights

Human dignity is a concept that is often mentioned in core human rights treaties and national constitutions as the foundation of human rights. At its core it demands respect for the life and integrity of the human person, recognition of the equal worth of human beings and respect for their autonomy or self-determination. Many national and supra-national courtsalso use the concept to explicate the meaning and limitations of human rights. The constitutional court of Germany, South Africa and the European Court on Human Rights are notable in this regard. In recent years, the US Supreme Court has also increasingly used the concept in resolving hard cases and expanding the scope constitutional rights. Though, the role andapplication of human dignity has received considerable scholarly attention, it is mainly confined to the European constitutional orders and the US constitutional system. With respect to regional human rights systems, scholars have largely focused on examining the role of human dignity in the jurisprudence of European Court of Human Rights and the Inter-AmericanCourt. As such, little is known about what role human dignity is playing or could play in the interpretation of rights in the African human rights system. This is alarming considering the poor status of protection of human rights and weak constitutional right jurisprudence in many countries of Africa. Accordingly, this article seeks to fill the lacuna by examining the role of human dignity in the African human rights system by exploring its place in religious and cultural value systems of different African societies.

The right to private and family life and the need for protection against the digital environment

Abstract The right to private and family life is difficult to define, since it encompasses a wide range of overlapping and interrelated rights that protect the individual’s freedom from state interference. This means that the individual has the right to live free from state interference, placing the individual in a higher position compared to the state in the enjoyment of this right. The right to private and family life is protected both at the international level by the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, the European Convention on Human Rights and at domestic level starting with the Constitution of the Republic of Albania and the legal framework. This right may be limited under specific conditions for the interest of others, provided that the interference is not arbitrary or unlawful. The article deals with the development of the right to private and family life in Albania at the constitutional level, at different periods of time, highlighting the range and the progress of this right compared to international legal framework. The article highlights one of the aspects of the right to private and family life such as data protection, on the challenges faced by the development of technology and the digital environment. The analysis is accompanied with the jurisprudence of European Court of Human Rights which elucidates the engagement undertaken by Albania as a contracting party of the European Convention to raise the standards of protection of human rights.

JUNGLES OF UKRAINIAN LEGISLATION ON EGG DONATION

The aim: To study the current regulation on egg donation in Ukraine as one of the most attractive destinations for reproductive tourism, establish the current loopholes in the legal framework to be addressed when amending Ukrainian legal rules. Materials and methods: The article is based on studying international and regional legal acts, jurisprudence of European Court of Human rights, pieces of national Ukrainian legislation, law drafts submitted to Ukrainian parliament and legal doctrine. The methodology of the article includes dialectical, comparative method and the method of systematic and structural analysis. Conclusions: Existing legal framework in Ukraine has some serious lacunas that can result in violation of rights and interests of donors and of the children. Firstly, the state does not keep the unique state register of donors. Secondly, there are no rules on compensation for egg donor. Lastly, the current Ukrainian legislation does not contain provisions ensuring protection of the child`s right to know about one`s genetic origin, and thus to obtain the identifying infor-mation about the donor. All these issues should be addressed in order to establish a fair balance between the rights and the interests of donors, recipients, the child and the society.

Online content filtering in EU law – A coherent framework or jigsaw puzzle?

With the spread of global digital services, the need to establish effective barriers to the dissemination of illegal content has also grown. Online services, instead of supporting the building of social relationships and allowing the free exchange of ideas, are increasingly becoming platforms for spreading hate speech or promoting extremist behaviour. The commitment to respect fundamental rights on which the Union has been built also requires those rights to be protected in cyberspace. Increasingly, one measure implemented to achieve this goal is filtering or blocking illegal content.In recent years, as a result of both the jurisprudence of European courts and the activity of the EU legislature, content filtering measures are increasingly used in an automatic and often also preventive manner. The freedom to use them on the part of digital service providers raises obvious concerns about compliance with human rights standards, often leading to allegations of implementing a new form of ``digital censorship''.Assuming that content filtering will be a measure that will be increasingly used in an automatic manner, it is particularly important to establish adequate standards of legal safeguards to protect against the risk of their abuse.The purpose of this article is to explain why the regulations currently being introduced do not create a coherent regulatory model and de facto hamper the effective protection of end-user rights and public security objectives, by introducing a series of often overlapping legal requirements. In this respect, the mosaic of various regulations does not facilitate the definition of a coherent standard of legal safeguards, which in turn delimits the boundaries of the application of automatic content filtering measures.

The Right to Privacy and Protection of Personal Data: Emerging Trends and Implications for Development in Jurisprudence of European Court of Human Rights

The emergence of the right to personal data protection is usually considered in close proximity to the right to private life, however, the two rights despite the sufficient degree of similarity are not identical. The article analyses the main concepts and discussions around the protection of privacy and personal data protection, which primarily was only perceived as another facet of privacy, as well as provides a comprehensive overview of theoretical and practical problems associated with their protection. Provided for the right to data protection is not explicitly mentioned in the ECHR the main concern, therefore, is whether it receives an adequate level of protection within the Convention system. The article argues that given the lack of an explicit criterion for distinguishing the rights to privacy and data protection, it is the jurisprudence of the ECHR, which is of the utmost importance for the development of the right to personal data protection as a fundamental right. Due regard is given to the evolution of the fundamental approaches of the ECHR in this field. It is concluded that the effective enjoyment of the right to data protection, which is not specified in the text of the ECHR or its Protocols, undeniably relies on the ECHR’s interpretation of the key data protection standards enlisted in the Convention no. 108, as well as relevant EU legislation.

The “Nullum Crimen, Nulla Poena Sine Lege” Principle and Foreseeability of the Criminal Law in the Jurisprudence of European Court of Human Rights

The “Nullum Crimen, Nulla Poena Sine Lege” Principle and Foreseeability of the Criminal Law in the Jurisprudence of European Court of Human Rights

Prawo strony do przeniesienia do rejestru stanu cywilnego małżeństwa jednopłciowego – uwagi na tle orzecznictwa Europejskiego Trybunału Praw Człowieka w Strasburgu

<p>Zgodnie z polskim prawem, osoba, która za granicą zawarła związek małżeński, może domagać się jego transkrypcji - tj. przeniesienia do rejestru stanu cywilnego. To uprawnienie nie przysługuje jednak wszystkim osobom, które zawarły związek małżeński zgodnie z prawem obowiązującym za granicą. Niemożliwym w Polsce jest, między innymi, przeniesienie do polskiego rejestru aktów stanu cywilnego, małżeństwa homoseksualnego zawartego w innym kraju. W niniejszym artykule autor postara się odpowiedzieć na pytanie, czy stan prawny, gdzie małżeństwo skutecznie zawarte poza granicami Polski, w Polsce nie podlega prawnemu uznaniu, a w konsekwencji nie podlega żadnej ochronie prawnej, jest zgodny z minimalnymi standardami ochrony praw człowieka wytyczanymi Europejską Konwencją o Ochronie Praw Człowieka oraz orzecznictwem Europejskiego Trybunału Praw Człowieka w Strasburgu.</p>

A Bird’s Eye View on EU Anti-Discrimination Law: The Impact of the 2000 Equality Directives

AbstractThe year 2000 marked the birth of EU anti-discrimination law as a field in its own right, with the adoption of two major Equality Directives. They extended the prohibition of discrimination with five additional grounds and expanded the material scope of equality regulation. Having reached its eighteenth birthday in the year 2018, EU anti-discrimination law can now celebrate its adulthood and deserves a bird’s eye exploration of its achievements, failures, and prospects. The present Article provides this exploration by zooming in on these twin Directives, as well as on the “new” grounds of discrimination planted therein, namely race and ethnicity—the grounds introduced by the Race Equality Directive—religion, sexual orientation, age, and disability—the grounds introduced by Framework Equality Directive—and the related jurisprudence of European courts. It first outlines the genesis and main stages in the development of EU anti-discrimination law, followed by a discussion of major normative and practical themes emerging in EU anti-discrimination law after 2000, such as the personal and material scope of the Directives, new forms of discrimination, mechanisms to counteract discrimination, and the proceduralization of EU anti-discrimination law.

The Right to Health in the Jurisprudence of European Court of Human Rights and Inter-American Court of Human Rights.

The Right to Health in the Jurisprudence of European Court of Human Rights and Inter-American Court of Human Rights.

“Woman” in the European Human Rights System: How is the Reproductive Rights Jurisprudence of the European Court of Human Rights Constructing Narratives of Women’s Citizenship?

Abstract Reproductive rights are constructed through a gender-conscious reading of already recognized human rights. We argue that despite increasingly strong recognition of reproductive rights in international human rights law by treaty-monitoring bodies and international tribunals, jurisprudence of European Court of Human Rights (ECtHR or the Court) reflects a limited understanding of women's experiences, does not adequately challenge gender stereotypes, and often ignores reproductive rights dimensions in standards it is setting, as well as narratives it is creating. Our analysis of Court's jurisprudence on abortion, home birth, non-consensual gynecological examinations, forced sterilizations, and assisted reproduction reveals that a woman's reproductive capacity continues to be her defining feature. Motherhood is seen as a woman's default life plan, her decisions regarding her body, health, and ultimately life, are perpetually under scrutiny and contours of her agency subject to medical professionals ' views, legislators and general public. INTRODUCTION In her much-celebrated novel The Handmaid's Tale, Margaret Atwood created a society where women's function was reduced to breeding, and those who failed or tried to escape from this labor were labeled as Unwomen and punished. (1) Atwood's 1985 book may have been science fiction, but story she tells is distressingly not too dissimilar from women's stories in twenty-first century--even in what is known as most progressive of regions: Europe. Indeed, when we study how woman has been constructed in human rights system that was founded upon European Convention on Human Rights (hereafter, the Convention), we find disturbingly essentialist gender roles. The ECtHR is judicial forum of most established regional human rights system in world, grounded in norms of European Convention on Human Rights. The Court's decisions are binding upon forty-seven member states of Council of Europe, and are implemented through domestic legislation and regulations. Moreover, ECtHR's jurisprudence is regularly looked to and cited by other regional tribunals, treaty-monitoring bodies that adjudicate cases, and domestic courts. (2) Thus, ECtHR sets standards in human rights law both within and beyond Europe and presents an important construction site for rights narratives, including reproductive rights narratives. As questions around women's reproductive health are often deeply contested, ECtHR arguably has an especially important role to play in fostering public learning regarding reproductive rights as integral to full participation of women in European society. Indeed, we argue in this Article that by using law to publicly and authoritatively proclaim and transform unacknowledged harmful experience into legally cognizable wrongs requiring redress, Court could play a potentially transformative role in narratives of women's citizenship in European context. (3) The Court has decided a number of cases concerning matters of human reproduction (for example, restrictive abortion laws and access to in vitro fertilization). Nevertheless, ECtHR itself has neither referred to reproductive rights as human rights (and accordingly forming a part of Convention) nor specified that cases about reproduction entail questions of reproductive and decisional autonomy that go beyond private sphere and could entail needed shifts in social norms as well as institutional practices. Through examining how Court has addressed specific issues relating to reproduction, we reflect on what ECtHR's jurisprudence tells us about narratives of women's identity and citizenship in Europe more broadly. Based on a systematic review of Court's jurisprudence from 2003 to 2015, we consider nineteen cases that Court has decided regarding issues of reproductive freedoms and entitlements: four abortion cases, (4) two cases concerning home birth, (5) six cases about assisted reproduction, (6) three forced sterilization cases, (7) three forced gynecological examination cases, (8) and one landmark domestic violence decision. …

The protection of the right to privacy as the social imperative of digital age: How vulnerable are we?

The paper examines various forms of jeopardizing the privacy of individuals in digital world, with specific focus on criminal protection provided by current international and national legal framework and the jurisprudence of European Court of Human Rights. The significance of conducting this scientific research is essential considering that we live in the era of electronic communications in which no one is anonymous. Development of information and communication technologies has brought, among its many advantages, various challenges in all spheres of modern life. Since the Internet has become the global forum, individuals have been increasingly target of countless insults, defamation and threats; moreover, numerous personal information or media get published without consent. The practice shows that effective suppression and control of illegal behavior on the Internet and punishing the perpetrators is at the rudimental level. In order to provide proper protection for the victims of criminal offenses committed against their privacy in the digital world, it is necessary to create new models and approaches to solving this problem.

Interpretation Of “Equality Of Arms” In Jurisprudence Of AD Hoc Tribunals And ICC

Abstract Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair. There are differences between interpretation and implementation of equality of arms in the jurisprudence of European court on human rights (ECtHR) and international criminal courts (ICTY, ICTR and ICC). Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties. When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused.

PRINCIPLES OF INTERNATIONAL LAW IN CONJUNCTION TO THE RECOGNITION, RESTITUTION AND COMPENSATION OF PROPERTY IN DIFFERENT STATES

Historically, property has been the foundation of the existence of human society and of states at all times. The “Rule of Law” in every democratic state guarantees and protects property. In a chronological period of time, how has the Albanian legal systems guaranteed private property? After the change of dictatorial system caused by the democratic developments during the 90’ which happened in all the East Europe, the democratic state although it wasn’t responsible for the past injustice, took over the moral and legal obligations to adjust, as soon as possible, some of the previous regime injustices, from 29 November 1994 and after. The first step was Law nr.7512 in August 1 st 1991 “For sanctioning and protection of private property, for free initiative independent private activity and privatization”. Two basic elements of this process are: recognition/restitution and compensation of property. Both elements have encountered difficulties in their materialization in practice. The jurisprudence of European Court of Human Rights and the Constitutional Court of the Republic of Albania have tried to give the legal definition “restitution and compensation of property” meaning not the same as the right of property in a constitutional sense and rules of international law, but an understanding based on the principle of fairness and justice and more to the principle of the welfare state. An important role had the unification of these decisions, that taking into account the decisions of the European Court of Justice, unified judicial practice in regard to the question of restitution and compensation. Besides the repeated decisions and frequent recommendations as to improve the situation, Albanian state hasn’t built yet appropriate and effective mechanisms for tackling this problem. Keywords : Private property, restitution and compensation of property, jurisprudence, ECHR

Constitutionality of enforcement of claims by private enforcement agents

The main focus of this paper is legal status of private enforcement agents in Serbia. The 2011 Serbian Law on Enforcement and Security has introduced private enforcement agents as legal professionals in charge mainly for carrying out of the enforcement. Special enforcement procedure for collection of utilities and similar claims has become exclusive competence of private enforcement agents. Since enforcement procedure has always been regarded as a set of coercive measures against enforcement debtor, it became questionable whether this coercion could be exercised by private enforcement agents. It has been argued by legal scholars that enforcement of civil judgments and other enforcement deeds belongs only to the state authority. The author tackles this issue from the standpoint of decisions of constitutional courts and jurisprudence of European Court of Human Rights.

Using the Public Law Concept of Proportionality to Balance Investment Protection with Regulation in International Investment Law: A Critical Reappraisal

Due to the adjudication of a large range of regulatory measures under investment treaty arbitration (ITA), the belief that bilateral investment treaties (BITs) fail to balance investment protection with a host country's right to regulate has gained currency as of late. In order to balance investment protection with regulation, many scholars have advocated for the use of public law principle of proportionality to interpret BITs. This paper critically examines the application of the principle of proportionality in BITs under four heads. First, given the fact that many questions related to independence and impartiality of ITA remain unanswered, the use of proportionality in ITA might further dent the credibility of the system by granting significant discretion to arbitrators. Second, proportionality principle has been applied in a flawed manner by many arbitral tribunals, which raises doubts about its application. Third, one should be very careful in relying on jurisprudence of European Court of Human Rights and the WTO to support the application of proportionality in ITA because of the many contextual differences between the two. Fourth, when interpreting BITs, application of principle of proportionality in many instances will completely ignore the clear textual language and thus violate the rules of treaty interpretation.

Every complaint matters: Human Rights Commissioner's opinion concerning independent and effective determination of complaints against the police

Police complaints are a developing area of European human rights law and criminal justice policy. In response to the risk of cultures of police impunity emerging in some European states the Council of Europe Commissioner for Human Rights launched a police complaints initiative in 2008. Written by the consultant to the Commissioner this paper examines his recently published Opinion concerning independent and effective determination of complaints against the police. Firstly, an overview is presented of the different types of complaints mechanism currently operating across Europe. This is followed by an outline of the five police complaints principles developed in the jurisprudence of European Court of Human Rights and explanation of the two-tiered citizen oversight approach advocated in the Commissioner's Opinion. The paper concludes with a discussion of the importance of the principles as a means for ensuring that every police complaint is handled appropriately and proportionately.