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Tytuł:
Law-Secured Narratives of the Past in Poland in Light of International Human Rights Law Standards
Autorzy:
Gliszczyńska-Grabias, Aleksandra
Baranowska, Grażyna
Wójcik, Anna
Powiązania:
https://bibliotekanauki.pl/articles/706672.pdf
Data publikacji:
2019-09-01
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
laws affecting historical memory
memory laws
human rights law
European Court of Human Rights
Opis:
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.
Źródło:
Polish Yearbook of International Law; 2018, 38; 59-72
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
Targeted Killings (Drone strikes) and the European Convention on Human Rights
Autorzy:
Bodnar, Adam
Pacho, Irmina
Powiązania:
https://bibliotekanauki.pl/articles/706879.pdf
Data publikacji:
2012
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
ECHR
ECtHR
European Convention on Human Rights
European Court of Human Rights
human rights
drone
targeted killing
international law
Council of Europe
warfare
Opis:
More and more Member States of the Council of Europe are becoming interested in drone technology. Currently, a number of them either possess or wish to obtain unmanned aerial vehicles equipped with missiles. Due to the increased number of targeted killing operations committed with the use of drones by countries such as the United States or Israel, there is a probability that Member States might also use them for such operations, especially if their forces will be subject to joint command. Although the issue of targeted killings with the use of drones has not yet been subject to the scrutiny of the European Court of Human Rights, there are two main reasons why this may change in the near future. First, the Court has already ruled on the extraterritorial applicability of the European Convention on Human Rights, and second, the Convention places strict limits on any attempts to carry out targeted killings and leaves only a limited space for their use, even in the context of warfare. In this article we assess whether the Member States of the Council of Europe might be ever justified under the European Convention on Human Rights to carry out targeted killing operations using drones.
Źródło:
Polish Yearbook of International Law; 2012, 32; 189-208
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
The Katyń Massacre before the European Court of Human Rights: A Personal Account
Autorzy:
Kamiński, Ireneusz
Powiązania:
https://bibliotekanauki.pl/articles/706836.pdf
Data publikacji:
2014-07-25
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
European Court of Human Rights, European Convention on Human Rights, Katyn, war crime, NKVD, Janowiec
Opis:
The author of this article, the lead lawyer for the applicants in the case relating to the 1940 Katyń massacre (Janowiec and Others v. Russia), provides a personal account of the case that was heard twice by the European Court of Human Rights, first as a chamber of seven judges and then in its Grand Chamber formation. The case concerned the key question of whether the Strasbourg Court is competent to adjudicate on the effectiveness of a domestic investigation when the triggering act (killing) precedes the ratification date of the European Convention on Human Rights. For the first time in its entire history, the Strasbourg Court examined whether its competence could be based on the “need to ensure the respect for the Convention’s founding values”, one prong of the test elaborated in the Silih judgment in 2009. The critical assessment of the Grand Chamber’s Katyń judgment offered in this article is based on two considerations: what the Court omitted (the applicants’ arguments referring to the relevant international law practice) and what the Court finally elaborated as its understanding of the two tests establishing the Court’s competence ratione temporis (the “genuine connection” test and “Convention values” test).
Źródło:
Polish Yearbook of International Law; 2013, 33; 205-226
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
Prawa człowieka a zatrzymanie i tymczasowe aresztowanie w polskim prawie i praktyce jego stosowania
Human Rights and Detention in Polish Law and Practice
Autorzy:
Bulenda, Teodor
Hołda, Zbigniew
Rzepliński, Andrzej
Powiązania:
https://bibliotekanauki.pl/articles/698514.pdf
Data publikacji:
1992
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
prawa człowieka
zatrzymanie tymczasowe
aresztowanie
prawo polskie
human rights
detention
arrest
polish law
human rights
Opis:
The social and political changes in Poland led to abolition of Realsozialismus which is now being replaced with a democratic country governed by Rechtostaat (Art. 1 of the Constitution) from aspirations after national freedom and respect of human rights in public life. The problem of protection of individual freedom made itself particularly felt here; it is also subject of the present paper which discusses the protection of individual subjectivity in the light or the institutions of arrest and detention awaiting trial. Until quite recently, Poland was one of the many Communist countries where human rights were violated much too often, also on the occasion of arrest and detention awaiting trial. Many factors were conductive to this situation, such as faulty legislation; inadequate socjal consciousness; depreciation of the authorities, law and other norms; prevalence of repressiveness in dealing with social pathologies; and absence of social control of the activity of law enforcement agencies, the police and prison staff in particular. But the weakness of legal protection of individual resulted also from a strong relation of the activities of practically all governemental and social bodies those dealing with prosecution and investigation as well as administration of justice included, to politics. This political nature of functioning of those agencies, resulting monopolistic power of the Communist party, led to a limitation of the independance of the judiciary. The adoption of new political principles of Polish State and election of the new Parliament (on June 4, 1989), together with formaion of the non-Communist Cabinet, created the conditions for a new criminal policy based step by step on European standards. The institutions of arrest and detention awaiting trial well illustrate the pathology of functioning of the agencies of legal order and the direction of changes taking place in criminal policy. They also demonstrate a specific paradox; the Polish people’s great devotion to freedom and the simultaneous unfeeling tramling of that freedom. The two institutions have been discussed from the viewpoint of protection of human rights on both the normative plane and in the practice of the years 1980–1990. Arrest is one of the forms of coercion which consists in a short-term deprivation of liberty. The Polish legal system provides for procedural, preventive and administrative arrest. Each of these types has a separate legal regulation (procedural arrest, the Act of 19 April 1969 – Code of criminal procedure; preventive arrest, the Act of 6 June 1990 on the police and another Act bearing that same date on State Protection Office, together with their executory acts; and administrative arrest, the Act of 28 October 1982 on education to sobriety and control of alcoholism). Moreover, each type of arrest is to serve different aims (procedural arrest, protection of propriety of criminal proceedings; preventive arrest, protectton of order and public safety, human life and health, and property; and administrative arrest, control of alcoholism). Also different are the conditions of arrest, the agencies authorized to apply it, and the period for which a person can be detained. The present authors focus mainly on preventive arrest related to the administrative function of the police as guardian of order. That form was particularly abused and human rights were often violated in the course of its execution. Preventive arrest has recently undergone significant changes both in the normative sphere and in practice. As compared to the former one, its present regulation: 1. defines its legal grounds with greater accuracy; 2. broadens the detainee’s rights; and 3. introduced judicial review. This has contributed to the curbing of arbitrary police activities in this sphere. Duration of arrest is specified in the Constitution (Art. 87) and in the provision of Art. 207 of the code of criminal procedure. It cannot be londer than 48 hours from the moment of detention, and 24 hours in the case of administrative arrest (Art. 40 of the act on education to sobriety and control of alcoholism). Violations of these provisions have so far been frequent. In the case of procedural and preventive arrest, the rights of the detainee are the same. According to the valid provisions, the detainee has the following rights among others: the right to be informed in writing as to the time and reasons of arrest; the right to be advised as to the possibility of complaining to the court against the application of that measure, and to the public prosecutor against the way of its execution: the right to health care. The catalogue of the detainee’s rights is insufficient:  e.g. it does not contain the right, to legal assistance (conseul). What particularly impairs the protection of the detainee’s personal interests is the absence of by-laws concerning the execution of arrest in the police house of detention, as the duplicated set of provisions called ,,By-laws for Detainees”, introduced by an order of the Chief of Civic Militia in 1959, hardly comes up to the standards. The provisions now in force have broadened the range  of legal means of vindication of his rights that are at the detainee’s disposal. Particularly notable here is the  reintroduction of the institution of habeas corpus. Namely, the detainee has been granted the right to complain to the court against arrest (Art. 207 point ”a,, of the Code of criminal procedure) and to the public prosecutor against the way of execution of arrest (Art. 15.7 of the Act on the police). If the arrest has been obviously unjustified, the detainee is due indemnity from the Treasury and monetary compensation of moral  injury (Art. 487 of the Code of criminal procedure); the same concerns the situation where he has suffered damage or injury as a result of an improper execution of arest (Art.Art. 417-419 of the Civil code). Besides, the detainee may approach the court with a claim in virtue of protection of his personal interests (Art.Art. 23 and 24 of the civil code). In the latter half of 1990, arrest was executed in 798 police houses of detention all over the country, that is fewer by a whole 71,7 per cent as compared to 1989. The recent changes have made it possible to abolish the division of houses of detention into categories (of which there used to be three according to the duration of detention). The number of arrests amounted to over 500,000 a year at times (with the peak of 572,220 in 1982 – see Table 1). Starting from 1988, it gradually went down to nearly one-third of its original value which reflects above all the general  liberalization of the police approach towards crime and other deviations. In the period under analysis, the living conditions in the police jails were – and still are primitive and many a time offensive to human dignity. This has been confirmed by the present author’s own study and two surveys of those jails carried out by the National Ombudsperson. An acute problem is the right to apply constraint during and upon detention. It is regulated by provisions of the police Act and an Ordinance of the Council of Ministere of 17 September 1990 which specifies the situations, conditions and ways in which direct coercion can be used by the police. Without questioning the grounds for such coercion, not only the legal conditions  of its application but also the faults or even abuses in this sphere have been pointed out. What the authors find the most severe violation of human dignity are neither humiliating conditions of isolation nor illicit prolongation of detention but first and foremost beating of a person after he has surrendered to the power of enforcement officers. Cases of beating have again started growing in number this year (as has been found by the Helsinki Committee in PoIand and the National Ombudsperson). The activities of the public prosecutor’s office in this sphere have been criticised in the article. The paper also discusses the consequences of the introduction of Art. 209 of the Code of criminal procedure which made it possible to commit to the police jails persons detained awaiting trial (for up to ten days or three months), and even those sentenced to a prison term (of up to six months). This provision has recently been quashed, but the police press for its reintroduction. Until quite recently, the police jails were submitted to no supervision whatever. The public prosecutor’s. office remained passive and carried out but most perfunctory supervision, if any. This situation hardly served the protection of detainees’ rights. It was only improved in 1988 when the police jails were submitted to supervision by the Ombudsperson and later also by Commissions: of Administration and Internal Affairs of the Diet and of the Rule of Law and Human Rigths of the Senate, and by other agencies and institutions. Also pre-trial detention is a serious interference with human rights. It is one of the preventive measures provided for by the Code of criminal procedure, and at the stage of execution – by the Code of execution of penalties and the Ordinance of Minister of Justice of 2 May 1989 – by-laws of execution of detention awaiting trial. The discussed measure can be applied by the court, and before the indictment also by the public prosecutor. The present authors find the latter’s right to apply pre-trial detention contradictory to provisions of international law, the covenants ratified by Poland included (see Art. 9,3 of the International Covenant on Political and Civil Rights). The legal provisions fail to specify the upper limit of duration of pre-trial detention. The amendement of the Code of criminal procedure and the changed policy of application of dotention resulted in a fall in the number of those detained awaiting trial. There were 9,722 such detainees on July 31, 1989 (see Tables 4–5). There was also a radical drop in the number of persons detained for over 12  months: in 1990, as few as 0,03 per cent of those kept at the public prosecutor’s disposal had been detained for at least 12 months. However, an alarming upward tendency in the number of persons detained awaiting trial can be noted lately. Discussing the conditions for optional or obligatory pre-trial detention, the authors criticize some of them as estimative in nature, and thus involving the danger of arbitrary use of this measure. The reasoning has been based on decisions of the Supreme Court which is of particular importance for the effective protection of the detainee’s rights. There have been a lot of faults in the practice of application and execution of pre-trial detention which was frequently used as a means of pressure aimed at forcing a person to plead guilty or to denounce an accomplice. In Poland, the application of pre-trail detention is the domain of the public prosecutor’s office. In the years 1975–1989, prosecutors applied this measure in nine out of every ten cases. The population of houses of detention and other penitentiary institutions shaped differently starting from 1945. A comparison of changes in the numer in the number of convicted persons with those of persons detained awaiting trial shows that the latter population was more stable starting from the 1960’s and never changed as radically in number as that of prisoners. That was the case despite the increased frequency of application of detention in the 1970’s. What contributed to this situation above all was the shortening of preparatory proceedings. In the period under analysis, the total number of persons detained awaiting trial in a given year largely approximated that of prisoners in that same year, and showed the same fluctuations resulting from the aggravated or relaxed criminal policy in the country. The trends here have nothing in common with the actual dynamics of crime as such. The authors assume that the number of persons detained awaiting trial reflects decisions in the sphere of criminal policy rather than the actual changes in crime, the economic situation, or even severe political tensions. What is also characteristic of the practice in this respect is the fact of a faulty application of the discussed measure. In the years 1975–1989, at least every 111th and at most every 71st person previously detained awaiting trial was subsequently found not guilty by the court. In some years, there were over 500 such persons. The authors discuss preventive barriers defined by the Supreme Court which are to ban clearly unjustified detention. As follows from analysis of the practical application of conditions for pre-trial detention, the one most frequently quoted was the alleged considerable social danger of the crime. Repressive conditions prevailed over the purely procedural ones. ln order to find out about the actual dimensions of the problem of pre-trial detention, the authors consulted the data concerning the use of preventive measure not involving isolation in criminal proceedings (such measures being financial and non-financial pledge, police supervision, and safe-conduct; see Table 6). It turned out that in the years 1978-1990, preventive measures other than detention awaiting trial never amounted to more than 43,5 and to less than 18 per cent of all preventive measures applied. After the above-mentioned Art. 209 of the code of execution of penalties has been quashed, detention awaiting trial can only be executed in the houses of detention created and run by the Ministry of Justice (Art.Art. 4 and 83 of the code of execution of ponalties). On December 31, 1990, there were 65 such institutions in Poland. Twenty-seven of them had additional wards for convicted persons, while 48 prisons had special wards for those detained awaiting trial. Thus pre-trial detention could be executed in the total of 114 of the 151 institutions of the Prison Department. The houses of detention had the total capacity of  18,263 beds, while the number of detainees was 16,200; the discussed institutions were therefore populated in 88,7 per cent. The rights of the discussed category of detainees are specified in the Code of execution of penalties and by-laws of execution of pre-trial deteotion awaiting trial. What is particularly worthy of attention is the provision which states that the detainee enjoys rights that should at least equal those of a convicted person, and that the only limitations allowed in this sphere are those indispensable for securing the proper course of criminal proceedings, maintaining order and safety in the institution, and preventing mutual demoralization of detainees (Art. 86 para 1 of the Code of execution of penalties). A person detained awaiting trial has many legal measures at his disposal to protect his own rights in relation to the application and execution of detention. Thus the detainee can lodge a complaint with a supreme agency of the penitentiary  administration (Art. 48 para 4 of the Code of execution of penalties); with the public prosecutor and penitentiary judge (Art.Art. 27–33 and 48 point 5); to the  supreme State agencies, the National Ombudsperson included (Art. 48 point 5); he may apeal against a decision of the administration of the house of detention concerning the actual execution of that measure to the penitentiary court (Art. I4,l of the Code of execution of penaltes); he may also sue the Treasury for damage suffered during detention by guilt of functionaries of the penitentiary administration (Art.Art. 417–l9 of the Civil code); he may claim indemnity for obviously unjustified detention (Art.Art. 487–49l of the Code of criminal  procedure); and he may bring legal action by virtue of infringement of his personal interests (Art.Art. 23–24 of the Civil code). As shown by experience, the persons detained awaiting trial either never resort to some of these means or do that ineffectively. The living conditions of the discussed category of detainees are specified mainly in the by-laws of pre-trial detention. Many faults and shortcomings have  been found here in practice. Some of such faults were so drastic as to make it necessary to close several houses of detention in 1990 to mention just one example (the institutions were either liquidated or designed for repairs). The authors also assume an attitude towards the treatment of some categories of offenders (women, particularly dangerous detainees, persons with mental disorders, HIV carriers), and discuss the treatment of juvenile detainees. Ending the paper, the authors stress the gradual improvement in the treatment of detainees since 1989. It results both from the legislative changes and from a relatively liberal criminal policy. The legal and to some extent also the organizational conditions have been created for implementation of the rule of law. Further changes are necessary, though, including in particular the passing of a new Constitution and penal codes. The drafts of the latter suggest, many new solutions in the sphere of arrest and detention awaiting trial which would make those institutions meet the European standards. What can considered valuable are the trends towards limiting the application of the two measures, specifying the conditions of their application, importantly, extending the guaranties of detainees’ rights.
Źródło:
Archiwum Kryminologii; 1992, XVIII; 103-146
0066-6890
2719-4280
Pojawia się w:
Archiwum Kryminologii
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
How Could It Go So Wrong? Reformatio in Peius before the Grand Chamber of the ECtHR in the case Janowiec and Others v. Russia (or Polish Collective Memory Deceived in Strasbourg)
Autorzy:
Sanz-Caballero, Susana
Powiązania:
https://bibliotekanauki.pl/articles/706824.pdf
Data publikacji:
2014-07-25
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
European Court of Human Rights, European Convention on Human Rights, Katyn, war crime, NKVD, Janowiec
Opis:
During Perestroika, Russian authorities admitted publicly that, during Stalinism, a single order led to the extrajudicial execution of 26,000 Polish nationals (in what became known as the “Katyń forest massacre”). In 1990 Russia commenced criminal investigations, but they were discontinued and results were classified as secret in 2004. Following years of silence under communism, families of the victims demanded information from the Russian authorities, without results. The ECHR entered into force in Russia in 1998. This article analyzes the case Janowiec and Others v. Russia, brought before the Strasbourg Court by the relatives of the victims of the Katyń massacre. The applicants maintained that Russia violated the ECHR by discontinuing the investigation and failing to account for the fate of prisoners. In their opinion, Article 2 (right to life), and Article 3 (prohibition of torture and inhuman treatment) had been violated. This article compares the reasoning of the Court in the Chamber (2012) and Grand Chamber (2013) rulings. The latter produced a reformatio in peius with respect to the applicants’ interests. Grand Chamber ruled it had no competence either over the atrocity or over the subsequent improper treatment by Russian authorities. With this verdict, it deprived the applicants of the only claim upon which the Chamber had earlier ruled in their favour.
Źródło:
Polish Yearbook of International Law; 2013, 33; 259-278
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
Do the “Underlying Values” of the European Convention on Human Rights Begin in 1950?
Autorzy:
Schabas, William
Powiązania:
https://bibliotekanauki.pl/articles/706941.pdf
Data publikacji:
2014-07-25
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
European Court of Human Rights, European Convention on Human Rights, Katyn, war crime, NKVD, Janowiec
Opis:
Prior to its ruling in Janowiec and Others v. Russia, the Grand Chamber of the European Court of Human Rights had recognised a “humanitarian exception” to the general rule by which the procedural obligations imposed by articles 2 and 3 of the European Convention only arise if the substantive violation of the Convention occurs after the entry into force of the Convention for the respondent State. In Janowiec, the Court was invited to apply this “humanitarian exception” to one of the great unpunished atrocities perpetrated on European soil in the past century. The Court declined to do so, mechanistically imposing its own temporal limitation on the “humanitarian exception” by which the substantive violation of the right to life and the prohibition of ill treatment must take place after the adoption of the Convention on 4 November 1950. The essay concludes that this limitation is questionable, that the reasoning behind it is dubious, and that the result is a regrettable confirmation of a situation of impunity.
Źródło:
Polish Yearbook of International Law; 2013, 33; 247-258
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
Janowiec and Others v. Russia: A Long History of Justice Delayed Turned into a Permanent Case of Justice Denied
Autorzy:
Citroni, Gabriella
Powiązania:
https://bibliotekanauki.pl/articles/706674.pdf
Data publikacji:
2014-07-25
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
European Court of Human Rights, European Convention on Human Rights, Katyn, war crime, NKVD, Janowiec
Opis:
The European Court of Human Rights ruled on whether Russia is responsible for human rights violations in relation to the Katyń massacre. Two of the major issues that had to be dealt with were the Court’s competence ratione temporis to assess the violation of the procedural obligations related to the right to life, and whether the applicants could be considered victims of inhumane treatment because of the failure of Russian authorities to provide information on the fate and whereabouts of their relatives. If the first judgment issued by the Chamber on 16 April 2012 was criticized because of its restrictive approach, the one issued by the Grand Chamber on 21 October 2013 took an even more controversial turn. The reasoning of the Court does not seem to be particularly sound and the outcome is a denial of justice. The comparison with the jurisprudence of the Inter-American Court of Human Rights in similar cases makes this all the more evident, suggesting that the application of different interpretative criteria would have been possible.
Źródło:
Polish Yearbook of International Law; 2013, 33; 279-294
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
The Case of Janowiec and Others v. Russia: Relinquishment of Jurisdiction in Favour of the Court of History
Autorzy:
Kozheurov, Yaroslav
Powiązania:
https://bibliotekanauki.pl/articles/706762.pdf
Data publikacji:
2014-07-25
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
European Court of Human Rights, European Convention on Human Rights, Katyn, war crime, NKVD, Janowiec
Opis:
In the Janowiec and Others v. Russia case, the European Court of Human Rights (ECtHR), trying to find its way between the Scylla of humanitarian ideals and the Charybdis of State sovereignty, demonstrated its unwillingness to deal in detail with the black pages of Europe’s past, handing this right over to historians. The article first draws parallels between temporary jurisdiction of the Inter-American Courts of Human Rights and the ECtHR. Both of them found ways to overcome the non-retroactivity principle, but by using different techniques. Secondly the article analyzes how the presumption of death became the factor severing the link between the substantive and procedural limbs of violation of the right to life, turning the latter aspect into a detachable autonomous obligation. Finally, the author of the article expresses his regrets that the Court and the applicants missed the chance to develop the “right to the truth”, using, inter alia, the potential of Art. 10 of the European Convention on Human Rights.
Źródło:
Polish Yearbook of International Law; 2013, 33; 227-246
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
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
Autorzy:
Mężykowska, Aleksandra
Powiązania:
https://bibliotekanauki.pl/articles/706640.pdf
Data publikacji:
2020-10-26
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
communism
European Court of Human Rights
European Convention on Human Rights
nationalization
restitution of private property
Opis:
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.
Źródło:
Polish Yearbook of International Law; 2019, 39; 111-134
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
The Nullum Crimen Sine Lege Principle in the European Convention of Human Rights: The Actual Scope of Guarantees
Autorzy:
Rychlewska, Aleksandra
Powiązania:
https://bibliotekanauki.pl/articles/706901.pdf
Data publikacji:
2017-09-01
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
ECHR
ECtHR
European Convention on Human Rights
European Court of Human Rights
nullum crimen sine lege
Opis:
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.
Źródło:
Polish Yearbook of International Law; 2016, 36; 163-186
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
Memory Laws or Memory Loss? Europe in Search of Its Historical Identity through the National and International Law
Autorzy:
Gliszczyńska-Grabias, Aleksandra
Powiązania:
https://bibliotekanauki.pl/articles/706863.pdf
Data publikacji:
2015-07-25
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
ECHR
ECtHR
European Convention on Human Rights
European Court of Human Rights
genocide
Holocaust
memory law
Polska
Opis:
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.
Źródło:
Polish Yearbook of International Law; 2014, 34; 161-186
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
Book review: Ryan Goodman, Derek Jinks, Socializing States: Promoting Human Rights through International Law, Oxford University Press, New York: 2013
Autorzy:
Balcerzak, Michał
Powiązania:
https://bibliotekanauki.pl/articles/706766.pdf
Data publikacji:
2015-07-25
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
book review
human rights
international law
acculturation
Opis:
Review of a book: Ryan Goodman, Derek Jinks, Socializing States: Promoting Human Rights through International Law, Oxford University Press, New York: 2013
Źródło:
Polish Yearbook of International Law; 2014, 34; 323-327
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
Free Speech Today
Autorzy:
QC, Lord Lester of Herne Hill
Powiązania:
https://bibliotekanauki.pl/articles/706685.pdf
Data publikacji:
2014-07-25
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
freedom of speech, human right, European Court of Human Rights, ECHR, European Convention on Human Rights, defamation, hate speech
Opis:
The article is an amended version of the Marek Nowicki Memorial Lecture presented at Warsaw University in 2014. It discusses the contemporary meaning of the right to free expression, concentrating on the basic principles of free speech as well as the limits of the right. In this context, the article pays special attention to British, Polish and European practice (particularly with respect to cases that are relevant for Poland). The specific topics tackled by the author include: free speech and the problem of criminalization of certain acts (e.g. the offence of defamation of public officials), hate speech, freedom of expression and the right of an individual to protect his or her good reputation (including the issue of libel laws), freedom of expression and the right to privacy (including the right to prior restraint on publication), free speech and internet, and the right to privacy versus national security.
Źródło:
Polish Yearbook of International Law; 2013, 33; 129-144
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
A Recurring Phenomenon: The Lawful Sanctions Clause in the Definition of Torture and the Question of Judicial Corporal Punishment under International Human Rights Law
Autorzy:
Karapetyan, Anna
Powiązania:
https://bibliotekanauki.pl/articles/706760.pdf
Data publikacji:
2017-09-01
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
human rights
prohibition
torture
inhuman treatment
corporal punishment
Opis:
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’s 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.
Źródło:
Polish Yearbook of International Law; 2016, 36; 137-161
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
Tytuł:
International Law and Ageism
Autorzy:
Mikołajczyk, Barbara
Powiązania:
https://bibliotekanauki.pl/articles/706826.pdf
Data publikacji:
2016-07-26
Wydawca:
Polska Akademia Nauk. Instytut Nauk Prawnych PAN
Tematy:
ageism
dignity
human rights
international law
older persons
Opis:
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.
Źródło:
Polish Yearbook of International Law; 2015, 35; 83-108
0554-498X
Pojawia się w:
Polish Yearbook of International Law
Dostawca treści:
Biblioteka Nauki
Artykuł
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