Wyniki wyszukiwania - Biblioteka Nauki

1

Ochrona wydalanych cudzoziemców na podstawie art. 3 Konwencji o ochronie praw człowieka i podstawowych wolności

100%

Wojnarowska-Radzińska J.

Studia Europejskie-Studies in European Affairs

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2013

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nr 1

s.101-112

EN

Aliens enjoy the right to be protected from expulsion or refoulement to a country in which they may be subjected to persecution or abuse. Expulsions of aliens should not be carried out without taking into account the possible risks to their lives and physical integrity in the countries of destination. The jurisprudence of the European Court of Human Rights provides valuable assistance in this regard. On the basis of this long-standing and consistent jurisprudence, Article 3 of the European Convention on Human Rights implies an obligation not to expel a person to a country in which that person may be subjected to torture or to inhuman and degrading treatment. The Court’s reasoning has been absorbed into doctrine by means of the‘protection by ricochet’ theory, by which reliance may be had on the rights arising under the Convention, not guaranteed as such by it but benefiting from itsindirect protection as an associated guaranteed right.

2

The Grand Chamber and its role in creation of the case-law of the European Court of Human Rights

80%

Gronowska B.

Studia Prawnicze

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2011

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nr 3-4 (189)

7-33

EN

The main purpose of this research is giving an answer for the question about the role which has been already played and can be played in future by the Grand Chamber created in 1998 within the European Court of Human Rights (ECHR). Obviously the fact that wide competences and powers have been conferred on this organizational formation of the ECHR created a unique situation concerning the substantive and procedural quality of the judgments. On the other hand, there is a potential risk that the possibility of referral of a case to the Grand Chamber can also be used for the purposes other than those strictly connected with the idea of the fair and objective justice system. The Author of this paper based her analysis against the background of 272 judgments which have been passed by the Grand Chamber and in such context she tries to make a systematization of problems both of the substantive and procedural nature. In principle the Author’s attitude is positive as far as any possibility of strengthening of the individual’s position in the control procedure of ECHR is concerned. However, according to the presented analysis the Author suggests that the Grand Chamber is still a kind of “big unknown”. Thus, at present it would be still difficult to appreciate in a concluding manner, the way in which the organ under consideration uses its decision-making power. The above-mentioned dilemma does not change the fact that this new area of the ECHR case-law creates a great challenge both for the ECHR itself as well as for all those who strongly support this institution.

3

Law-Secured Narratives of the Past in Poland in Light of International Human Rights Law Standards

80%

Gliszczyńska-Grabias A. , Baranowska G. , Wójcik A.

Polish Yearbook of International Law

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2018

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tom 38

59-72

EN

Given the whole spectrum of doubts and controversies that arise in discussions about laws affecting historical memory (and their subcategory of memory laws), the question of assessing them in the context of international standards of human rights protection – and in particular the European system of human rights protection – is often overlooked. Thus this article focuses on the implications and conditions for introducing memory laws in light of international human rights standards using selected examples of various types of recently-adopted Polish memory laws as case studies. The authors begin with a brief description of the phenomenon of memory laws and the most signifcant threats that they pose to the protection of international human rights standards. The following sections analyse selected Polish laws affecting historical memory vis-à-vis these standards. The analysis covers non-binding declaratory laws affecting historical memory, and acts that include criminal law sanctions. The article attempts to sketch the circumstances linking laws affecting historical memory with the human rights protection standards, including those entailed both in binding treaties and other instruments of international law.

4

Right to Asylum: Short Overview of the Case-Law of the European Court of Human Rights

80%

Pūraitė A.

Internal Security

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2012

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tom 4(2)

47-60

EN

The main aim of the article is to describe the right of people seeking asylum in Europe, which are protected under several international and regional legal documents. These legal instruments may be divided into two main groups: those dedicated to human rights and where mention of right to asylum is incidental; and those directly regulating the right to asylum and all connecting issues. Though the European Convention on Human Rights, on the other hand, was intended to provide a legal regional recognition of most of the rights set out in the Universal Declaration of Human Rights and to provide international mechanisms to police their implementation, it did not, however, contain any express provision, which guarantees the right to seek and enjoy asylum from persecution. Therefore the main question could be under what provisions asylum seekers may protect their rights in the European Court of Human Rights. Therefore the object of the research is the provisions of the European Convention on Human Rights, under which persons seeking asylum may protect their rights. The main objective of the research is to analyze the case-law of the European Court of Human Rights reflecting the implementation of provisions to protect the right to asylum. The analysis will be based on representative cases under article 3 of the Convention such as e.g. Jabari v. Turkey, H.L.R. v. France, D. v. the United Kingdom, Ahmed v. Austria, Salah Sheekh v. the Netherlands.

5

Opinia prawna w sprawie poselskiego projektu ustawy o zasadach wykonywania orzeczeń Europejskiego Trybunału Praw Człowieka

80%

Chybalski P.

Zeszyty Prawnicze BAS

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2021

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nr 2(70)

193-201

EN

In the opinion of the author certain provisions of the proposed bill raise constitutional doubts or may cause constitutional reservations, inter alia, in the light of the principle of specificity of law, the principle of separation of powers, the scope of the subject matter of parliamentary rules of regulation. Furthermore, insofar as the bill relates to the payment of compensation and redress, it appears to be burdened with a constitutional defect of the nature of the so-called legislative omission. The author of the opinion points out that the bill also lacks a number of solutions concerning the payment of compensation and redress.

6

Principle of professional reliability of journalism and unlawfulness

80%

Święcka K.

Studia Prawnicze

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2011

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nr 3-4 (189)

147-167

EN

Despite a difference in opinions held by the jurisdiction and the doctrine, the criterion of special care and reliability should be recognized as one of the circumstances resulting in finding a journalist’s activity lawful or unlawful. We could support the opinion according to which failure to maintain special care belongs to the sphere of unlawfulness (not guilt) since a valid legal system obliges a journalist to act with particularly special care. It is ofmost importance to create some rules of conduct, objective criteria, and more or less precise model of a journalist’s profession. By far a point of reference is necessary which would serve as a comparative scale for those accused of violation so that they could be formally charged. An action will be found blameworthy if a required level of care has not beenmaintained. If a journalist observed the rules of special care while collecting, verifying and publishing information, even though their conduct violated personal interests of a person described in the publication, such conduct will not be considered unlawful. A model of careful and diligent action is formulated by legal provisions, decorum or deontological principles. Journalists are required to be better prepared for their duties, which include not only proving subjective circumstances but also showing objective elements according to which someone’s behavior was consistent with the state of special knowledge and life experience. Such a person is obliged to constantly broaden their knowledge and professional skills. Journalists are obliged to perform all possible actions requiring specialist professional qualifications connected with seeking the truth reliably and conscientiously, with due criticism and care of details. Journalists may not disseminate false, unreliable or unverified information; otherwise their actions will be considered unlawful. A duty of reliability means the obligation to seek for the truth and rational argumentation while making a negative evaluation. The above actions generally refer to the factual and legal state as well as the form of working. Remissness of due care and professional reliability may constitute the grounds for professional or civil liability (including criminal liability). The introduction of this requirement, which results from a journalist duty to seek for the truth,is justified by the protection of the object of special importance, which personal interests undeniably are. The obligation to maintain special care generally takes effect in truthfulness of presented facts. If the news appeared to be false, there is a possibility of applying a circumstance excluding liability if a journalist proved that in that case he had verified the authenticity of the news which was published. Thus liability is avoided and the proof of the news’ authenticity is replaced by the duty of its thorough verification, i.e. maintenance of the rule of special care. The resolution of the Supreme Court of 18th February 2005, which was criticized by the doctrine, abandoned a theory according to which an “objectively untrue” statement is unlawful. Nevertheless, this attitude is in line with the European Court of Human Rights’ way of thinking. Maintenance of special care and reliability while collecting and using press materials by journalists (Art. 12 par. 1 of the media law) excludes the feature of unlawfulness of a journalist action. Moreover, it should be noticed that proving that charges are right is not always a necessary and independent prerequisite to exclude liability of a person violating personal interests (e.g. in the sphere of privacy).

7

Dopuszczalność wydalania ciężko chorych cudzoziemców a zakaz nieludzkiego traktowania na podstawie art. 3 EKPC w świetle orzecznictwa Europejskiego Trybunału Praw Człowieka

80%

Wojnowska-Radzińska J.

Zeszyty Prawnicze BAS

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2014

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nr 4(44)

20-39

EN

The article provides an analysis of the legal aspects of expulsion of an alien suffering from a serious physical or mental illness to a country where treatment options for this illness are less accessible than those available in the country of residence (particularly in the case of HIV/AIDS, HCV, various forms of cancer, etc.). The article indicates the legal basis under European law (especially Article 3 of the European Convention on Human Rights on the prohibition of inhuman treatment), and the case law of the European Court of Human Rights relating to this issue. The author emphasizes that the ECHR has adopted a very restrictive approach concerning the expulsion of seriously ill non-nationals, and the national courts of States parties to the ECHR must ensure protection against expulsion to foreigners.

8

European Court of Human Rights on Enforced Disappearances.Case-Law Study

80%

Czepek J.

Internal Security

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2013

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tom 5(1)

7-16

EN

The issue of enforced disappearances is an important one. Both, universal and regional systems of human rights protection struggle against this particularly grave violation of several human rights. This problem had also been taken up by NGO’s dedicated to the protection of human rights and fundamental freedoms. The main aim of this article is to present the issue of enforced disappearances in judgments of the European Court of Human Rights (ECtHR). In the Court’s view, enforced disappearances constitute a violation of several rights enshrined in the European Convention on Human Rights (ECHR), such as the right to life (both in material and procedural aspects), freedom from torture (both in respect to the disappeared person and the relatives of the disappeared person), the right to liberty and security and the right to an effective remedy. The Court in its case-law has already formed an interpretation of Convention rights in respect to enforced disappearances. However, an important question arises in the case Aslakhanova and others v. Russia: Can a series of similar acts of enforced disappearances and lack of effective domestic investigation constitute a systemic violation of the Convention?

9

The Right to a Healthy and Safe Environment in the Case-Law of the European Court of Human Rights

80%

Pūraitė A. , Deviatnikovaitė I.

Internal Security

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2013

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tom 5(1)

17-34

EN

Although it seems unlikely, the environmental aspects of human rights law are not discussed as often as they should be in scientific proceedings of human rights. Nevertheless, a growing environmental caseload in international courts indicates their acknowledgement of the importance of this topic. Whilst the European Convention on Human Rights (ECHR)does not guarantee a specific right to a healthy and safe environment, the general standards deriving from it may also apply to environmental matters. The European Court of Human Rights regularly examines complaints in which individuals argue that a breach of their Convention rights is a result of adverse environmental factors. The ECHR does not itself express in an explicit manner the right to a healthy environment, but there is an indirect degree of protection inferred within the articles of the ECHR.The most frequent cases reflecting environmental issues and indirectly having an impact on claims relating to the environment protection are articles foreseeing the right to life (Article 2), the right to respect for private and family life (Article 8), the right to peaceful enjoyment of possessions and property (Protocol 1, Article 1), and the right to a fair hearing (Article 6). An important characteristic feature of the Court’s “green” cases is the position that the state has a positive obligation to impose substantive environmental quality standards on private individuals to prevent them from interfering with individual rights of others. Sometimes environmental protection may be presumed as being a legitimate object justifying the limitations of individual rights and freedoms.

10

Między sacrum a profanum: relacje wolności religijnej i wolności sztuki w orzecznictwie ETPCz

71%

Banaś H.

Adam Mickiewicz University Law Review

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2015

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tom 5

69-84

EN

Formerly, art was closely connected to religion. Nowadays, art is such a far-reaching, controversial phenomenon, that the recipient no longer knows what he is looking at. Religion (as an aim) is a great example. It applies to the most intimate sphere of the individual’s life and it is difficult to legally regulate this issue. There is no definition of art, nor of religion, which is sufficiently precise to be a basis for judgments. The European Court of Human Rights has partly dealt with this matter in its judgments but this is still not enough to solve the problem.

11

Odwołania do literatury pięknej w orzecznictwie Europejskiego Trybunału Praw Człowieka

71%

Maroń G.

Ruch Prawniczy, Ekonomiczny i Socjologiczny

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2019

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tom 81

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nr 2

67-82

EN

The article discusses the practice of invoking literary works in the jurisprudence of the European Court of Human Rights. The quantitative analysis of the case law allowed for the formulation of some conclusions. Firstly, literary references appear exclusively in dissents and concurrences, not in the Court’s judgments themselves. Secondly, the phenomenon of citing fiction in the ECtHR’s case law is neither common nor marginal. Thirdly, in the last two decades there has been a marked intensification in the use of literary references by the Court’s judges. Fourthly, the willingness to cite works of fiction in the dissent or concurrence is essentially independent of the judge’s nationality, sex or country of origin. Fifthly, literature is one of many extra-legal sources quoted in the ECtHR’s case law, among those such as philosophy, movies or music.

PL

W artykule omówiono praktykę posługiwania się odwołaniami do literatury pięknej w orzecznictwie Europejskiego Trybunału Praw Człowieka. Kwantytatywne studium orzecznictwa pozwoliło na sformułowanie kilku wniosków. Po pierwsze, beletrystyczne odniesienia pojawiają się nie w uzasadnieniach wyroków Trybunału, a wyłącznie w zdaniach odrębnych i zbieżnych do tych wyroków. Po drugie, praktyka posiłkowania się utworami literackimi w orzecznictwie strasburskim jakkolwiek nie jest powszechna, to zarazem nie ma też charakteru sporadycznego. Po trzecie, w ostatnich dwóch dekadach sędziowie Trybunału co raz częściej przywołują dzieła literatury pięknej. Po czwarte, gotowość posłużenia się literackim odniesieniem jest zasadniczo niezależna od narodowości i płci sędziego oraz typu kultury prawnej właściwej dla jego kraju pochodzenia. Po piąte, literatura piękna to jedno z wielu źródeł pozaprawnych wykorzystywanych przez sędziów Trybunału w zdaniach odrębnych i zbieżnych, obok np. filozofii, kinematografii czy muzyki.

12

The European Court of Human Rights on Nazi and Soviet Past in Central and Eastern Europe

70%

Gliszczyńska–Grabias A. , Baranowska G.

Polish Political Science Yearbook

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2016

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tom 45

117–129

EN

The article demonstrates how references to Nazi and Soviet past are perceived and evaluated by the European Court of Human Rights. Individual cases concerning Holocaust and Nazism, which the Court has examined so far, are compared here to judgments rendered with regard to Communist regime. The article proves that the Court treats more leniently state interference with freedom of expression when memory about Nazism and Holocaust is protected than when a post–Communist state wants to preserve a critical memory about the regime. The authors of the article agree with the attitude of the Court which offers a wide margin of appreciation to states restrictively treating references to Nazism and Holocaust, including comparisons to the Holocaust, Nazism or fascism used as rhetorical devices. At the same time they postulate that other totalitarian systems should be treated by the Court equally.

13

Uzasadnienie dynamicznej wykładni Konwencji o ochronie praw człowieka i podstawowych wolności — pytania krytyczne

70%

Łącki P.

Przegląd Sejmowy

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2017

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nr 2(139)

7–26

EN

In the light of the case law of the European Court of Human Rights, the Convention for the Protectionof Human Rights and Fundamental Freedoms is a living instrument “which must be interpreted in the light of present-day conditions”. The basic purpose of the article is an attempt to address critical questions about some of the standard arguments for the legitimacy of the evolutive interpretation of the Convention. The author claims that although the Court’s approach to the Convention as a „living instrument” is fi rmly rooted in its case law and legal theory, an adequate justifi cation for such an approach is still an open question and is considered as an open theoretical issue. The article consists of two parts. In the fi rst part the author briefl y describes the essential elements of treating the Convention as a living instrument, and illustrates, on the example of selected Court’s judgments, the manner in which this idea is applied in practice, i.e. the legal (judicial) reasoning refl ecting such an approach. In the second part, after pointing out the specifi c context in which the legitimacy of the dynamic interpretation of the Convention can be considered, he identifi es and critically examines a number of arguments raised in support of for this interpretation both in the legal theory and in the case-law of the Court.

14

Legal Obligations of Poland Regarding the Restitution of Private Property Taken during World War II and by the Communist Regime in Light of the Jurisprudence of the European Court of Human Rights

70%

Mężykowska A.

Polish Yearbook of International Law

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2019

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tom 39

111-134

EN

The Polish Government’s proposal, submitted in autumn 2017, for a comprehensive reprivatisation bill revived the international discussion on the scope of Polish authorities’ obligations to return property taken during World War II and subsequently by the communist regime. However, many inaccurate and incorrect statements are cited in the discussions, e.g. the argument that the duty of the Polish authorities to carry out restitution is embedded in the European Convention on Human Rights and its Protocol No. 1. This article challenges that claim and analyses the jurisprudence of the Convention’s judicial oversight bodies in cases raising issues of restitution of property taken over in Poland before the accession to both of the above-mentioned international agreements. In the article I argue that there is no legal basis for claiming that there exists a legal obligation upon the Polish State stemming directly from international law – in particular human rights law – to return the property and that the only possibly successful legal claims in this regard are those that can already be derived from the provisions of the Polish law applicable to these kinds of cases. In its latest rulings, issued in 2017–2019, the European Court of Human Rights determined the scope of responsibility incumbent on Polish authorities in this respect.

15

A Prisoner’s Right to be Released or Placed on Parole: A Comment onÖcalan v Turkey (No. 2)(18 March 2014)

70%

Mujuzi J. D.

Baltic Journal of Law & Politics

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2016

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tom 9

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nr 1

69-92

EN

The European Convention on Human Rights does not provide for a prisoner’s right to parole and no international or regional human rights instrument provides for this right. However, recently, in the case of Öcalan v Turkey (No. 2), one of the judges of the European Court of Human Rights interpreted the European Convention on Human Rights as providing for a prisoner’s right to parole. This is the first time that a judge of this court, and to the author’s best knowledge, a judge of a regional or international court, has expressly held that a prisoner has the right to parole. The author assesses this holding in the light of the jurisprudence or practice on the right to parole from the Human Rights Committee, and the African Commission on Human and Peoples’ Rights. In order to put the discussion in context, the author also highlights jurisprudence emanating from the European Court of Human Rights relevant to the relationship between parole and other human rights. The author recommends that the time has come for the right to parole to be recognised in human rights instruments.

16

The Convention for the Protection of Human Rights and Fundamental Freedoms as an International Treaty and a Source of Individual Rights

70%

Gadkowski A.

Adam Mickiewicz University Law Review

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2021

|

tom 13

77-96

EN

The aim of this paper is to present the legal nature of the Convention for the Protection of Human Rights and Fundamental Freedoms as a special treaty under international human rights law. The article focuses on the twofold nature of the Convention. First, it presents the Convention as an international treaty, and thus as a source of specific obligations of states-parties. Second, it presents the Convention as the source of fundamental individual human rights. The article also discusses the role of ECtHR case law in the context of fundamental individual human rights.

17

Glosa do postanowienia pełnego składu Trybunału Konstytucyjnego z dnia 10 marca 2015 r. (sygn. akt SK 65/13)

70%

Strzępek K. A.

Przegląd Sejmowy

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2018

|

nr 3(146)

179–188

EN

The commentary refers to the decision of the full bench of the Constitutional Tribunal of 10 March 2015, ref. no. SK 65/13, related to “trying all legal means” prior to submitting a constitutional complaint to the Constitutional Tribunal. The author presents the complexity of the matter of “trying all legal means” and some opinions thereon which have not been taken into consideration in the Tribunal’s decision, i.e. the perspective of the complainant’s plenipotentiary and of the European Court of Human Rights in Strasbourg, as well the lawmaker’s motivations for passing a provision on trying all legal means before submitting a constitutional complaint. It is pointed that the decision’s reasons, despite containing refl ections on the matter of “trying all legal means”, do not comprise the Tribunal’s interpretation (language, systemic or teleological) of the provision of the act referring to the matter, hence it is questionable that the decision expresses a legal opinion on Article 37 para. 1 item 1 letter e of the Act of 30 November 2016 on the organization and proceedings before the Constitutional Tribunal.

18

Recent judgements of the General Court and the Supreme Court of the Slovak Republic in inspection matters – Landmark Decisions or Wasted Opportunities to Solve Problem?

70%

Blažo O.

Yearbook of Antitrust and Regulatory Studies

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2013

|

tom 6(8)

261-280

19

Crimea and Liability of Russia and Ukraine under the European Convention on the Protection of Human Rights

70%

Cwicinskaja N.

Adam Mickiewicz University Law Review

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2019

|

tom 9

85-100

EN

The aim of this article is to present the liability of Russia and Ukraine regarding Crimea under the European Convention on the Protection of Human Rights. The author analyzes pending and possible prospective cases originating from the conflict around Crimea between Ukraine and Russia. Due to the inconsistency in case law of the EC-tHR it is difficult to clearly determine what state will be considered responsible for the violation of the rights of residents of Crimea resulting from the Convention. In author’s opinion the ECtHR could determine that the Russian Federation may be held respon-sible, as well as Ukraine. However, as it seems, the liability of Ukraine will be limited to the positive obligations under the ECHR.

20

The Nullum Crimen Sine Lege Principle in the European Convention of Human Rights: The Actual Scope of Guarantees

70%

Rychlewska A.

Polish Yearbook of International Law

|

2016

|

tom 36

163-186

EN

The principle of nullum crimen sine lege expresses an old idea that only the law can prescribe a particular act as punishable. It is commonly understood as a requirement of sufficient definiteness of an offence, in particular – of a statutory description of an offence before it has been committed (lex scripta, lex praevia), and of clarity and precision in criminal provisions so as to enable an individual to conform with them (lex certa), as well as their strict interpretation (lex stricta). Nowadays the principle is an internationally recognized human right to foreseeable criminalization, guaranteed by, inter alia, Article 7 of the European Convention on Human Rights. However, the European Court of Human Rights seems to formulate two slightly different requirements on its basis, namely that the application of criminal law must be foreseeable for an individual and coherent with the “essence of an offence”. One may question whether this can serve as an adequate “shield” from arbitrariness on the part of State authorities. Nevertheless, the core aim of such a flexible approach is not to promote legal security for potential perpetrators, but to achieve better protection of human rights in general.