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Number of results: 26
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Abstract

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.
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Authors and Affiliations

Aleksandra Rychlewska
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Abstract

Despite the universal condemnation of torture, the prevention of appalling practices of ill-treatment has not been achieved in the 21st century. The repugnant practice persists and even increases because of the disingenuous interpretations of the definition of torture and the lack of effective enforcement mechanisms. Notwithstanding the cogency of the absolute and non-derogable prohibition of torture, particularly regarding the treatment of detainees, nowadays corporal punishment as a punitive measure is arguably a recurring phenomenon in several former British colonies and in States where the legal system is based on Islamic Sharia. While several legally binding universal and regional instruments prohibit torture in general terms, with no specific definition, the scope of the Convention against Torture definition was narrowed down by the lawful sanctions clause. The universality of the definition has been undermined by the inclusion of this clause, since different States have different practices when it comes to lawful and unlawful sanctions. The intractable problem of the interpretation of the definition by the State-Parties and the lack of effective control mechanisms has perennially posed the greatest challenge with respect to compliance with International Human Rights Law. In light of the above, this article seeks to critically dissect the lawful sanctions clause within the context of corporal punishment.
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Authors and Affiliations

Anna Karapetyan
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Abstract

In the 21st century ageism is becoming the most widely spread phenomenon. It has become so extensive that presently many more seniors in Europe are exposed to ageism than other people to sexism or racism. Contrary to other vulnerable groups, the elderly do not enjoy any binding instrument that could protect them and their dignity against ageism in the same way that women and racial groups are protected against sexism and racism. Unfortunately, the UN General Assembly resolution, supposed to be a first step to drawing up such a convention, was adopted with a significant number of abstentions, leaving the fate of a potential treaty on the rights of the elderly uncertain. On the other hand, in 2014 the Committee of Ministers of the Council of Europe adopted a new recommendation, and in June 2015 members of the Organisation of American States adopted a treaty protecting the elder’s rights. Taking into account these new circumstances, the idea underlying this article is to investigate the ability of international instruments to limit ageism and protect older persons’ dignity, as well as to indicate existing gaps.
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Authors and Affiliations

Barbara Mikołajczyk
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Abstract

This article attempts to discover the key elements of the democratic principle, as described by the judges sitting in Luxembourg and Strasbourg, whose case law reveals the underlying idea of democracy at the supranational level. Until recently the debate on democracy was limited to the national level. But things are changing, and this article shows the gradual emergence of a process led by supranational courts, in which the application of the democratic principle finds multiple grades and variations. In this way the supranational/international courts have opened a new chapter in the process of constitutionalization of international law.
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Authors and Affiliations

Stefania Ninatti
Maurizio Arcari
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Abstract

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.
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Authors and Affiliations

Aleksandra Gliszczyńska-Grabias
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Abstract

Is the fact that the majority of the population in the Middle East belongs to Islam actually the reason why human rights in Muslim-majority countries appear to be so difficult to work out and enforce? Are Islam and human rights not basically compatible? Historically it cannot be disputed that the thought of human rights first took shape in the European and Western context. Over the course of several centuries, it became widely accepted, and finally the thought of human rights also became a political reality as they were implemented in democratic states and constitutions. However, it would be a wrong conslusion, as for instance has been emphasized by Heiner Bielefeldt, the former United Nations Special Rapporteur on freedom of religion or belief, to say that the ability to implement human rights, in particular thoughts about freedom and the equality of all people, is a one-sided affair and can only occur in the Western-Christian context. As far as Heiner Bielefeldt is concerned, this historic development, however, justifies neither the assertion that it had to happen as it did, nor does it justify Western representatives’ taking sole occupation of considerations relating to human rights thinking. Viewed from this perspective, human rights cannot boast a “Western” origin or a “Christian” character in a way that they would be incompatible with notions justified by Islam. Having that said, one is still to a large degree able to recognize a desolate situation in matters relating to human rights in Muslim-majority countries. But conflicts between Islam and human rights do not arise automatically out of the religious affiliation of a majority of the people. They certainly do stand out in those places where for political decision-making authorities Sharia law ranks higher than human rights and the granting of human rights is made dependent upon a traditional interpretation of the Sharia. Apart from the societal advocacy of human rights, there is the question as to the framework within which theological assessments of human rights questions occur. The following article aims at pointing to three discernable positions about human rights in the context of Islamic theologians, the a) the inclusive position, b) the pragmatic position, and c) the progressive position.

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Christine Schirrmacher
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Abstract

In March 2022, the European Commission presented its long-awaited legislative proposal on the EU-wide human rights and environmental due diligence (HREDD) for business. This article argues that the proposed Directive fails to be an effective and innovative legislation in three respects. Firstly, it does not draw lessons from the shortcomings of the to-date regulatory policy relating to business and human rights. It mainly consolidates at the EU level the status quo of extant due diligence legislation in Europe. Secondly, the proposal falls short of the established international standards and its own objectives insofar as it fails to establish instruments for effectively preventing and remedying human rights and environmental harm. Thirdly, the proposal’s normative preference for process- (rather than result-) oriented HREDD risks reducing it to yet another compliance instrument. Beside amending these shortcomings, to achieve a breakthrough, the upcoming legislation should in any case define HREDD as the legal standard of care; the compliance with which does not per se exclude civil liability. The general negotiation approach of the Council is not proposing much improvement in that regard. The stakes for the European Parliament’s possible role to raise the bar are thus very high.
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Authors and Affiliations

Izabela Jędrzejowska-Schiffauer
1
ORCID: ORCID
Łukasz Szoszkiewicz
1
ORCID: ORCID
Joseph Wilde-Ramsing
2
Katharine Booth
3
ORCID: ORCID
Pauline Barraud de Lagerie
4
ORCID: ORCID
Beata Faracik
5
ORCID: ORCID

  1. Faculty of Law and Administration, Adam Mickiewicz University
  2. Centre for Research on Multinational Enterprises (SOMO) in Amsterdam
  3. Centre for Research on Multinational Enterprises (SOMO) and Researcher/Policy Advisor at OECD Watch in Amsterdam
  4. PSL University
  5. BHR expert, Co-founder and President of the board of the Polish Institute of Human Rights and Business
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Abstract

Human rights provide the rationale behind the functioning of the state, while at the same time imposing certain limits on its actions. How does Poland’s Constitution protect the rights of individuals, and what limitations come into play in the state–citizen relationship?
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Authors and Affiliations

Mirosław Wyrzykowski
1

  1. Faculty of Law and Administration, University of Warsaw
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Abstract

The judgments delivered by the European Court of Human Rights in Al-Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland highlight the potential tension that may arise between states’ broad reliance on national security grounds to withhold disclosure of secret files and compliance with their obligations under the European Convention on Human Rights. The present article examines the above-mentioned judgments, focusing, in particular, on how (and to what extent) the withholding of secret information may infringe on the right to the truth and, as far as proceedings before the European Court of Human Rights are concerned, the state’s duty to cooperate with it.
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Authors and Affiliations

Elena Carpanelli
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Abstract

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 significant 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.

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Authors and Affiliations

Aleksandra Gliszczyńska-Grabias
ORCID: ORCID
Grażyna Baranowska
ORCID: ORCID
Anna Wójcik
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Abstract

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.

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Authors and Affiliations

Aleksandra Mężykowska
ORCID: ORCID
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Abstract

This article examines the phenomenon of internal displacement from the perspective of the existing legal framework and those measures which should guarantee protection for internally displaced populations worldwide. With this aim in mind, the article begins by assessing the role of international law and try to ascertain which legal norms are applicable to protect internally displaced persons. As a second step, it analyzes the question of responsibility for the protection of internally displaced persons, i.e. whether this lies with the state of origin through its national law, or rather with the international community, and examines the relevant provisions of international law. While concluding and identifying the existing gaps in the current legislation, the article demonstrates that internally displaced persons should become the objects of a specific system of law and legal protection. At the same time, the text intends to contribute to the contemporary debate promoting efforts to strengthen the protection of internally displaced persons and to disseminate knowledge about this vulnerable group of people.
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Authors and Affiliations

Magdalena Silska
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Abstract

This article is in tended to provide a legally sound explanation of why and how the contemporary International Humanitarian Law and International Human Rights Law legal frameworks offer tools to address the uncertain ty, lack of in formation, and the consequences thereof in relation to missin g persons and victims of enforced disappearances in the context of armed conflicts which predated the adoption of such frameworks. To this end, three scenarios will be examin ed: the contemporary claims of the families of those who were killed in the Katyń massacre in 1940; the claims for in formation and justice of the families of thousands who were subjected to enforced disappearances durin g the Spanish Civil War between 1936 and 1939; and the identification efforts concernin g those reported missin g while in volved in military operations in the context of the 1944 Kaprolat/Hasselmann in cident which took place durin g the Second World War. The analysis of these scenarios is conducive to the development of more general reflections that would feed in to the debate over the legal relevance of the distant past in light of today’s in ternational legal framework.

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Authors and Affiliations

Alessandra La Vaccara
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Abstract

The purpose of this article is to determine the relationship between the principles of subsidiarity and effectiveness and an effective remedy for the excessive length of proceedings within the legal order of the European Convention on Human Rights. The article assumes that these key principles of the ECHR’s legal order have an impact on such a remedy, both in the normative and practical dimensions. This assumption has helped explain many aspects of the Strasbourg case law regarding this remedy. Concerning the relationship of this remedy with the principle of subsidiarity, it raises issues such as: the “reinforcing” of Art. 6 § 1; the “close affinity” of Arts. 13 and 35 § 1; and the arguability test. In turn, through the prism of the principle of effectiveness, the reasonableness criterion and the requirement of diligence in the proceedings are presented, followed by the obligations of States to prevent lengthiness of proceedings and the obligations concerning adequate and sufficient redress for such an excessive length of proceedings. The analysis shows that an effective remedy with respect to the excessive length of proceedings is not a definitive normative item, as the Court consistently adds new elements to its complex structure, taking into account complaints regarding the law and practice of States Parties in the prevention of and compensation for proceedings of an excessive length.

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Authors and Affiliations

Elżbieta Morawska
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Abstract

The article discusses the point of interconnection between historical policy and international human rights law standards on the example of a so-called decommunisation Act enacted in Poland in 2016 that reduces retirement pensions and other benefits to individuals who were employed or in service in selected state formations and institutions in 1944-1990, amending the Act adopted in 2009. The Act of 16 December 2016 is analyzed in the light of the standards of the European Convention on Human Rights (ECHR), including relevant standards on coming to terms with the past as an element of transitional justice. The examination concludes that there is a discrepancy between the rationale for adopting this legislation in Poland, namely to reckon with the communist past and as such increase social trust in state institutions, and the legal solutions contained in the 2016 Act.

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Authors and Affiliations

Anna Wójcik
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Abstract

I address the question of Marx’s understanding of the role and function of religion in social life. Marx’s pronouncements on this topic are few and far between. Yet relying on them I undertake to examine the proposal ostensibly made by Marx that it was possible, or even necessary, to purge religious institutions and religious attitudes from social life. I point to a number of inconsistencies and errors that Marx committed in making such proposals.

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Authors and Affiliations

Marek Łagosz
ORCID: ORCID
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Abstract

In 1995, Professor Krzysztof Skubiszewski added a Dissenting Opinion to the East Timor Judgment, wherein the ICJ declined jurisdiction in a proceeding started by Portugal against Australia for its having concluded the East Timor Gap treaty with Indonesia, in blatant violation of the East Timorese’s right to self-determination. Ad-hoc Judge Skubiszewski posited that the Court should have accepted jurisdiction and he presented a series of convincing arguments for this proposition. In 2019 the ICJ rendered an Opinion in the Chagos Islands case. The fact that the ICJ accepted jurisdiction in this case demonstrates that an impressive development has taken place since 1995, one whereby many of Professor Skubiszewki’s requests have been implemented. At the same time however, the Chagos Opinion is not fully satisfying as it neglects, to a considerable extent, the human rights issue. This contribution shows that Skubiszewski’s Dissenting Opinion would have provided guidance also for these questions and that it remains as topical today as it was in 1995.

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Authors and Affiliations

Peter Hilpold
ORCID: ORCID
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Abstract

This article examines the role of environmental human rights and the rights of nature in the era of the Anthropocene. The research question is whether the concept of the Anthropocene itself is a constructive remedy for the ecological destruction.
The United Nations General Assembly resolution acknowledging a universal human right to clean environment is a ground-breaking event in a long process of the creation of such a right. This article examines the status quo of this right at present, both generally and in regional human rights treaties, as well as in the relevant case law and literature. The rights of nature are also examined, as they have become a very topical issue in light of the recent decision of the Conference of the Parties of the Convention on Biological Diversity, which expressly grants such a right. The question which may be posed is whether the approach adopted by the Anthropocene – which treats all actors equally – reflects the reality. The Western (Global North) approaches to the destruction of the Earth are contested by the Global South. The fractured approaches (by both the Global South and the Global North) to the decline of the environment may render questionable the suitability of the Anthropocene paradigm.
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Authors and Affiliations

Malgosia Fitzmaurice
1
ORCID: ORCID

  1. Public International Law, Queen Mary University of London
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Abstract

Research in molecular genetics has made great advances in recent years that have wide practical applications. At the same time, it has been confirmed that not everything provided by modern genetic research is good and beneficial for humans. In particular, the discovery of the CRISPR/CAS9 method has made it possible to interfere very effectively with an individual’s hereditary characteristics, which has forced doctors, lawyers, ethicists, sociologists, theologians and representatives of churches to take a clear stance on the issue. The need for further scientific development requires the limits of research to be defined in order to avoid irreparable damage to the gene pool of humanity. The aim of this article is to examine the Magisterium of the Catholic Church in dealing with current bioethical issues arising from new scientific discoveries and to present Christian principles in the context of the possibilities offered by molecular editing using CRISPR/CAS9. The position of the Catholic Church on current developments in the field of biomedicine, even at a time of significant biomedical discoveries, is based on a holistic view on human life, its value and mission. In the deepest sense of the word, gene therapy should be a therapy for a specific disease of a given organism that respects the integral good of the human person. Clinical interventions aimed at improving the genome of an individual, and therefore of society, are unacceptable. Human life must not become the object of a eugenic positivist-materialist mentality. The teaching office of the Church promotes scientific development for the common good of humanity and, at the same time, strives to preserve the dignity and integrity of every human being.
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Authors and Affiliations

Pavol Dancák
1
ORCID: ORCID

  1. University of Prešov in Prešov, Slovakia
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Abstract

The question of the human person is very important for moral theology because of the possibility of responsible human action. Nevertheless, the old utilitarianism that already comes from the empiricist position of Hume reduces the calculation of costs and benefits to an evaluation of the pleasant/unpleasant of the individual subject. The new utilitarianism takes its inspiration from Bentham and Mill and can be summarized in a threefold injunction: maximizing pleasure, minimizing pain, and expanding the sphere of personal freedom for the greatest number of persons. One of the popular promoters of preference utilitarianism in modern times is the Australian ethicist Peter Singer, whose controversial views attracted much attention not only from the scientific community in the late 1970s. In this paper we will try to show a critique of this position in several figures of philosophical and theological ethics as well as a defence of the importance of the notion of the human person and human dignity for the integral protection of human life from conception to natural death and of anthropocentrism as such in respect for all creation and all of nature.
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Authors and Affiliations

Inocent-Mária V. Szaniszló
1
ORCID: ORCID

  1. Pontifical University of Saint Thomas Aquinas (Angelicum) in Rome, Italy
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Abstract

The article will consider research directions on a social history of disability based on the social and the human-rights models of disability, as well as the concept of disability included in the UN Convention on the Rights of Persons with Disabilities. The article contains the basic methodology of historical research on the subject, the main research fields, and an overview of primary sources. In addition, the periodisation of the subject was introduced.

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Authors and Affiliations

Zbigniew Głąb
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Abstract

One of the most common and dangerous conflicts in contemporary democracies is related to cultural differences in understanding of the basic principles of social organization. Such conflict is developing also in Poland. Its most recent manifestation is the serious confrontation between the new appointed Minister of Education and Science of the Polish government and the large part of the Polish scientific community. In the first part of the paper, I analyze on the basis of his publication the minister’s socio-political worldview. I am implying that it may explain his conflict arousing policy. I am focusing on his concept of the natural law and his use of this concept, on his understandings of democracy and secular state, and on his interpretation of minority rights in democracy. I am concluding that he represents the ultraconservative (right-wing) version of the Roman Catholic worldview and is trying to impose its implications on the Polish education as well as scientific institutions. In the second part of the paper, I am analyzing sociopsychological preconditions of cultural conflicts and factors that may determine the radicalization of these conflicts.
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Authors and Affiliations

Janusz Reykowski
ORCID: ORCID
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Abstract

Among UN human rights treaty bodies that have the competence to examine inter-state communications, only the Committee on the Elimination of Racial Discrimination (CERD) has had the possibility to develop its case law in this regard (as of 2020). One of these cases – submitted by the State of Palestine against Israel – resulted in a controversy arising from the respondent state’s declaration excluding any treaty relations between Palestine and Israel, the latter considering the former “a non-recognized entity.” The present paper analyses the CERD’s decision of 12 December 2019 in which the Committee found that it had jurisdiction to hear the inter-state communication. The author argues that while invocation of the “special character” of human rights obligations constitutes a powerful argument in judicial discourse, this should not lead to (re)opening debates on self-contained regimes and alienating human rights treaties from the norms and principles of general international law. At the same time, there are also valid reasons to perceive the obligations enshrined in the ICERD as being of a specific and erga omnes character.
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Authors and Affiliations

Michał Balcerzak
1
ORCID: ORCID

  1. Associate Professor (dr. hab.), Nicolaus Copernicus University (Toruń, Poland)
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Abstract

This article critically evaluates the summary procedure introduced by Protocol No. 14 to the European Convention on Human Rights, adopted within the reform of the European Court of Human Rights system. The summary procedure, now set out in Art. 28(1)b of the Convention, was instituted in order to facilitate expediency and to reduce the case load of the Court. This article argues that while judicial economy is a legitimate goal, the summary procedure under Art. 28(1)b has considerable deficiencies that undermine some of the systemic goals and core values of ECHR law. There is a manifest lack of remedies vis-à-vis the choice of the procedure, choice of applicable law, and no appeals against final decisions rendered in the course of the summary procedure. Notably, the concept of “well-established case-law” seems to be neither clear nor reliable, as evidenced in the cases analysed in the article. These cases, which involve the issue of socially- owned property in Serbia, serve to demonstrate some of the significant errors in interpretation and decision-making which can result from application of the summary procedure.

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Authors and Affiliations

Sanja Djajić
Rodoljub Etinski

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