Search results

1

State Immunity and the Right of Access to Court. The Natoniewski Case before the Polish Courts

100%

Nowosielski R.

Polish Yearbook of International Law

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2010

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vol. 30

236-262

EN

On 29 October 2007, Winicjusz Natoniewski filed the lawsuit against the Federal Republic of Germany in the Circuit Court in Gdansk (Poland), demanding a payment of PLN 1,000,000 as a redress for injuries he suffered as a result of activities of the German military forces during World War II. The Circuit Court, Appellate Court and the Supreme Court rejected the lawsuit stating that the State immunity of the Federal Republic of Germany excluded the jurisdiction of Polish courts in this case and thereby deprived Natoniewski of the right to dignity guaranteed by Polish, European, and international law. The actions taken by German forces in the Natoniewski case constitute a war crime and a crime against humanity. In the case of such serious crimes, a State cannot invoke its immunity. The infringement of fundamental human rights entails the withdrawal of all benefits and privileges provided by international law, and thus is an implied waiver of the State immunity. This consequence results from the principle that no one can benefit from his/her unlawful conduct. Granting immunity to a State in case of international crimes committed by the State is contrary to the foundations of international law and it destroys the values which are the most important for the international community.

2

INTERNATIONAL LEGAL ISSUES IN THE CASE OF THE PRUSSIAN TRUST (PREUSSISCHE TREUHAND) AGAINST THE REPUBLIC OF POLAND BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

100%

Jasinska A.

Polish Yearbook of International Law

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2009

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vol. 29

175-195

EN

On 7th October 2008 the ECHR declared inadmissible an application submitted by the 'Preußische Treuhand GmbH & Co. KG a. A.' against Poland. The applicant company claimed - on behalf of 23 individual applicants - that Poland violated Article 1 of the Protocol No 1 to ECHR by illegal expropriation of German property located within the former German territories east from the Oder-Neisse line which after the WW II were transferred to Poland. The individual applicants maintained that they themselves, or their legal predecessors, were victims of acts conducted by Polish authorities between 1944 and 1948 including deprivation of property, expulsion from homeland, persecution etc.Furthermore, prohibition of genocide and crimes against humanity had been in force as ius cogens of international law already at the time of the events, so Poland by its conduct had committed serious breaches of peremptory norms in the meaning of Chapter III of the ILC Draft. Accordingly, the applicants argued that all these acts were ab initio null and void, and incapable to produce any legal effects then and now. As to the admissibility ratione personae, the ECHR rightly pointed out that the alleged acts could not be attributed to Poland in respect of these applicants, who had left the former German territories before Poland had taken over any de facto or de iure control over them. Consequently, the Court excluded its jurisdiction with regard to these persons.. Unfortunately, the same cannot be sustained as to the position of the ECHR on admissibility ratione temporis. Although the final conclusion – declaring inadmissibility - is fully correct, it was reached on the basis of false premises which the authoress discusses in detail. Although, by this occasion the ECHR confirmed legality of Polish jurisdiction over the former German territories on the basis of the Potsdam Agreement. Deeper analysis of the applicants' position proves their reasoning a complete failure. She points out, among others, that the alleged violations constitute neither genocide nor crimes against humanity; leaving other arguments aside, it is enough to state that they lack one constitutive characteristic of these crimes - intent to commit a crime as element of State's policy. The purpose of Poland's actions after the WW II was not extermination of Germans, but fulfilment of provisions of the Potsdam Agreement and other undertakings concerning reparations for Poland and transfer of German population; the latter was also stated in the Court's decision. The omission of the ECHR to respond to the applicants' arguments based on the problems of international law, as discussed in this paper, is not understandable and thus subject to serious critique. However, the clear and consequent position of the Court, rejecting its competence to adjudicate cases originating in events that took place before the entry into force of the ECHR, especially as consequences of WW II, deserves appreciation and full support.

3

Does the Victim of a Crime Have the Right to a Fair Trail? Remarks on the Protection of Crime Victims in the Light of the Guarantees in the European Convention on Human Rights

100%

Mezykowska A.

Polish Yearbook of International Law

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2011

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vol. 31

285-313

EN

None of the provisions guaranteeing the right to a fair trial contained in the principal international agreements were explicitly drafted to assure such a right to victims of crimes. Therefore, over the last two decades one could observe a shift in the attitude of the European Court of Human Rights towards the rights of victims, in order to extend the protection granted under the provisions of the European Convention on Human Rights to victims taking part in criminal proceedings. The Court directly extends the rights of victims by elaborating the procedural obligations of States (mainly under Articles 2 and 3 of the Convention), and through a broader understanding of the concept of civil rights and obligations, which enables the extension of the guarantees granted under Article 6 to victims participating in criminal proceedings. The purpose of this analysis is to attempt to answer the questions: under what circumstances in criminal proceedings may victims benefit from the right to a fair trial, and to what extent are they entitled to claim the protection of the guarantees provided for under the Convention?

4

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

88%

Rychlewska A.

Polish Yearbook of International Law

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2016

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vol. 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.

5

The Court of Justice of the European Union and the Protection of Fundamental Rights Source: Polish Yearbook of International Law

88%

Lenaerts K.

Polish Yearbook of International Law

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2011

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vol. 31

79-106

EN

The present contribution looks at the protection of fundamental rights under EU law, paying special attention to the Charter of Fundamental Rights of the European Union (the Charter) which, since the entry into force of the Treaty of Lisbon, enjoys “the same legal value as the Treaties”. First, by looking at the recent case law of the European Court of Justice, it explores the scope of application of the Charter. Second, it examines the conditions that the limitations on the exercise of the rights and freedoms recognised by the Charter must fulfil in order to be valid. Third, it looks at the interaction between, on the one hand, the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms and between, on the other hand, the Charter and the constitutional traditions common to the Member States. Finally, a brief conclusion contains some remarks as to the requirements private applicants must fulfil in order to build strategic human rights cases successfully.

6

Presidential pardon and the judgement of the European Court of Human Rights in Hungary

88%

Nagy A.

Nowa kodyfikacja prawa karnego

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2015

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vol. 38

155-165

EN

This article introduces the Hungarian Presidential pardon and new compulsory Presidential pardon system. It is based on research carried out in the Ministry of Justice at the Pardon Department, where several dozen petition pardons were analysed. In connection with the compulsory Presidential pardon the article examines the judgment of the European Court of Human Rights, which has condemned Hungary for its adoption of real (whole) life imprisonment. Results from a study of petitions for pardon are given.

7

Pardon system in Hungary and European human rights jurisprudence

88%

Nagy A.

The Lawyer Quarterly

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2016

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vol. 6

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issue 3

181-188

EN

This article introduces the Hungarian Presidential pardon and new compulsory Presidential pardon system. It is based on research carried out in the Ministry of Justice at the Pardon Department, where several dozen petition pardons were analyzed. In connection with the compulsory presidential pardon the article examines the judgment of the European Court of Human Rights, which has condemned Hungary for its adoption of real (whole) life imprisonment. Results from a study of petitions for pardon are given.

8

The ECHR Preamble vs. the European Arrest Warrant: balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?

88%

Daminova N. I.

Review of European and Comparative Law

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2022

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vol. 49

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issue 2

97-131

EN

As stated in the European Convention on Hu- man Rights Preamble, the aim of the Council of Europe is the achievement of greater unity between its members through the maintenance and realisation of Human Rights and Fundamental Freedoms . Nowadays, the European Union includes the majority of the ECHR signatories (27 of 47) and incorporates the key legal instrument of judicial cooperation in criminal matters, namely the European Arrest Warrant Framework Decision . Nevertheless, the possible effects of the EAWFD on the practice of the European Court of Human Rights remain understudied – despite the crucial need to properly balance the enforcement of the principle of mutual recognition and Human Rights protection in the European Union. Since the first attempts to approach the EAWFD, the Strasbourg Court preferred to find the applications inadmissible (Pianese, Monedero Angora, Stapleton) or to establish a very high threshold for establishing a Convention violation within this context (Pirozzi). It will be argued that the newly developing Strasbourg Court’s case-law on the EAWFD (Castano, Bivolaru/Moldovan, Alosa) could potentially mark a new step in the judicial dialogue be- tween two European Courts. In the Castano and Bivolaru/ Moldovan rulings, the ECtHR – for the first time – found that the EU Member States had breached their obligations under Arts . 2 ( ́right to life ́) and 3 ( ́prohibition of torture ́) ECHR within the European Arrest Warrant context (murder/traffick- ing in human beings charges). At the same time, this interpre- tation opens the floor for discussion on potential applicability of other Convention provisions (Arts . 4, 5, 8, 13) to other offences listed in Art . 2(2) of the EAWFD (such as, for instance, corruption, fraud, computer-related crime etc .). Even though the Strasbourg Court has transposed the CJEU’s benchmarks of the EAW refusals legality assessment – i .e . a risk of inhuman or degrading treatment in the requesting State (Aranyosi/Căldăra ru), the EU Member States ́ courts are now forced – de facto – to consider an additional (ECHR-based) criterion for assessing the legality of refusals to execute the European Arrest Warrants. This can arguably pose further questions upon the entry into force of Protocol No. 15 ECHR which aims at the most effective realisation of the ́subsidiarity ́ principle in the European Convention system.

9

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

88%

Gliszczyńska–Grabias A., Baranowska G.

Polish Political Science Yearbook

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2016

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vol. 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.

10

The Protection of the Right to Education in Minority Language: the Council of Europe’s Standards

75%

Wiczanowska H., Szoszkiewicz Ł.

Polish Political Science Yearbook

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2018

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vol. 4 (47)

742-751

EN

There is neither consensus whether the category of linguistic rights shall be distinguished, nor international agreement on the catalogue of such rights. Nevertheless, access to education in mother tongue constitutes a core element of most of the international and national frameworks of minority protection. Academic and legal disputes are particularly absorbing in Europe, where linguistic policies frequently intertwine with politics (e.g. Cyprus, Moldova, Ukraine). Thus, it is essential to pose the question, whether the right to education in mother tongue is always granted the equal scope of protection or is such protection differentiated by any additional criteria. Most of all, it shall be considered whether the analyzed right has an independent character or its protection is associated with perception of other fundamental rights and freedoms. This paper investigates the scope of the protection of this right within the framework of the Council of Europe.

63%

Danaj L., Prifti A.

Academicus. International Scientific Journal

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2012

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issue 05

108-118

EN

Following a general overview of the EHCR case of law and some of its distinctive features, this article focuses on explaining the meaning of ‘privacy’, and guaranteed as a fundamental right in light of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, using as illustrations the verdicts of some cases judged by the institutions of Strasbourg. Certain paragraphs of the article address a series of issues, which according to the Court-referring to the images created by the Convention-cover a range , within which any individual may freely follow the development of their personality. The article also raises some questions, which the ECHR has often fully answered,or at least, indirectly implied. The author elaborates also on limits of privacy as foreseen by paragraph 2 of Article8, as well as on some obligations that the Convention assigns to its contracting State-Parties.

17

Strasburskie perpetuum mobile : problem zobowiązań państw wynikających z jednostronnych deklaracji o uznaniu naruszenia EKPC oraz nadzoru nad ich wykonywaniem

63%

Tacik P.

Problemy Współczesnego Prawa Międzynarodowego, Europejskiego i Porównawczego

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2017

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vol. 15

50-74

EN

The paper investigates the role of unilateral declarations of states in the functioning of the ECHR control system, particularly in their relation to the division of competences between the ECtHR and the Committee of Ministers. Unilateral declarations which recognise violations of the Convention, once accepted by the Strasbourg Court, lead to striking out the application from the list of cases. The Court may restore the application if the state in question does not fulfill its declared obligations. Thus the restoration of the application becomes the principal remedy for states' disrespect of their declarations. This mechanism detracts, however, from the Committee of Ministers' competence to oversee the execution of judgments and makes the ECtHR involved in the monitoring process. The recent judgment Jeronovičs v. Latvia (2016) further dismantles the logic of the Convention, because it accepts the admissibility of separate applications pertaining to violations which arise only from the non-execution of unilateral declarations. The paper presents the evolution of unilateral declarations and critically assesses the emancipation of this institution, which diminishes legal certainty and may infringe applicants' rights.

18

Memory Laws or Memory Loss? Europe in Search of Its Historical Identity through the National and International Law

63%

Gliszczyńska-Grabias A.

Polish Yearbook of International Law

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2014

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vol. 34

161-186

EN

This article provides an overview of “memory laws” in Europe, reflecting upon what may be called the “asymmetry” of such laws. It then looks at the special case of Poland and its troubled experience with memory laws; it considers the question of whether, in the eyes of the law – genocide, and in particular the Holocaust – is so “special” that its public denials warrant legal intervention. It also looks at the case law of the European Court of Human Rights and its (not necessarily coherent) “doctrine” on memory laws and their consistency, or otherwise, with the European Convention for the Protection of Human Rights and Fundamental Freedoms (and in particular with freedom of expression as laid down in Art. 10). The article concludes by asserting that even if we take the law as an indicator of European public memory, there is no consensus on the past, except perhaps for the special case of the Holocaust. The main challenge lies in determining whether memory laws, defined by some as social engineering and the imposition of “imperative” versions of memory, are consistent with the principles inherent in open, democratic and free societies in Europe. This challenge remains unmet.

19

Domestic Investigation into Participation of Polish Officials in the CIA Extraordinary Rendition Program and the State Responsibility under the European Convention on Human Rights

63%

Bodnar A., Pacho I.

Polish Yearbook of International Law

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2011

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vol. 31

233-257

EN

Poland has been accused of participation in the extraordinary rendition program established by the United States after the September 11, 2001 attacks. It is believed that a secret CIA detention facility operated on the Polish territory, where terrorist suspects were transferred, detained and interrogated with the use of torture. Currently, Poland has found itself in a unique situation, since, unlike in other countries, criminal investigation into renditions and human right violations is still pending. Serious doubts have arisen, however, as to the diligence of the proceedings. The case was incomprehensibly prolonged by shifting the investigation to different prosecutors. Its proper conduct was hindered due to state secrecy and national security provisions, which have covered the entire investigation from the beginning. This article argues that Polish judicial authorities, along with the government, should undertake all actions aiming at explaining the truth about extraordinary rendition and seeking accountability for human rights infringement. Otherwise, Poland may face legal responsibility for violating the European Convention on Human Rights. This scenario becomes very probable, since one of the Guantanamo prisoners has already lodged a complaint against Poland with the European Court of Human Rights.

20

Prawa pamięci w kontekście art. 17 EKPC – prawo do negacjonizmu czy negacjonizm prawa pamięci?

63%

Wiczanowska H.

Świat Idei i Polityki

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2016

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issue 15

330-348

PL

Celem niniejszego artykułu jest przedstawienie mechanizmów ochrony praw pamięci na gruncie strasburskiego systemu ochrony praw jednostki, opartego na literalnym brzmieniu europejskiej konwencji praw człowieka (EKPC), jak również praktyce orzeczniczej Europejskiego Trybunału Praw Człowieka (ETPC). Powyższa problematyka zostanie poddana analizie w oparciu o metodę dogmatyczno-prawną, sprowadzającą się do wykładni poszczególnych postanowień konwencji, jak również linii orzeczniczej ETPC. Podstawową hipotezą stawianą przez autorkę jest istnienie dwupoziomowego standardu ochrony przed negacjonizmem praw pamięci, w zależności od rodzaju zanegowanego prawa pamięci.

EN

The objective of the article hereto is to present the mechanisms of the memory rights’ protection within the Strasbourg system, based upon the literal resonance of the European Convention of Human Rights and judicial practice of the European Court of Human Rights. Such topic will be subjected to analysis through the legal-dogmatic method which relies upon the construction of the concrete provisions of the Convention as well as jurisprudence of ECHR. The basic hypothesis of the author is the existence of the double standards of memory rights’ protection against negationism, depending from the type of denied memory right.

Refine search results

State Immunity and the Right of Access to Court. The Natoniewski Case before the Polish Courts

INTERNATIONAL LEGAL ISSUES IN THE CASE OF THE PRUSSIAN TRUST (PREUSSISCHE TREUHAND) AGAINST THE REPUBLIC OF POLAND BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

Does the Victim of a Crime Have the Right to a Fair Trail? Remarks on the Protection of Crime Victims in the Light of the Guarantees in the European Convention on Human Rights

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

The Court of Justice of the European Union and the Protection of Fundamental Rights Source: Polish Yearbook of International Law

Presidential pardon and the judgement of the European Court of Human Rights in Hungary

Pardon system in Hungary and European human rights jurisprudence

The ECHR Preamble vs. the European Arrest Warrant: balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?

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

The Protection of the Right to Education in Minority Language: the Council of Europe’s Standards

Artykuł 18 Europejskiej Konwencji Praw Człowieka : nowe-stare narzędzie obrony demokratycznych standardów

Actual challenges for the implementation of judgments of the European Court of Human Rights

The right to a fair trial in the ECHR judicature

The right to a fair trial in the ECHR judicature

Grupa jednostek jako podmiot poszukujący ochrony w postępowaniu przed ETPC. Koncepcja ochrony praw grup wrażliwych

Respect for privacy from the Strasbourg perspective

Strasburskie perpetuum mobile : problem zobowiązań państw wynikających z jednostronnych deklaracji o uznaniu naruszenia EKPC oraz nadzoru nad ich wykonywaniem

Memory Laws or Memory Loss? Europe in Search of Its Historical Identity through the National and International Law

Domestic Investigation into Participation of Polish Officials in the CIA Extraordinary Rendition Program and the State Responsibility under the European Convention on Human Rights

Prawa pamięci w kontekście art. 17 EKPC – prawo do negacjonizmu czy negacjonizm prawa pamięci?