In Al-Jedda v. United Kingdom, the Grand Chamber of the European Court of Human Rights (the Court) decided that the detention of an Iraqi citizen by British forces operating as part of the ...Multinational Force-Iraq (MNF) could not be attributed to the UN and, consequently, that by detaining that individual for more than three years without charge, the UK had violated Article 5(1) (right to liberty and security) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention or ECHR). The decision raises fundamental issues such as the concept of attribution, the interpretation of the UN Security Council's resolutions, and, most important, whether and when the Security Council has power under Chapter VII of the UN Charter to displace member states' human rights obligations on the basis of Charter Article 103.
In this book Aoife Daly reframes the status of children where courts decide their best interests, arguing that the Convention on the Rights of the Child 'right to be heard' is insufficient, and that ...autonomy should instead be the focus.
Every year hundreds of applicants complain before the European Court of Human Rights (hereinafter the 'Court') that judicial proceedings before their domestic courts have taken too much time and ...thereby violate Article 6 of the ECHR, which states that 'everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law'. This single issue still accounts for more judgments of the Court than any other. It is clear why speedy judicial proceedings are deemed essential from a human rights perspective. 'Justice delayed is justice denied' is a maxim that is often used in this regard. If society sees that judicial settlement of disputes functions too slow, it will lose its confidence in the judicial institutions. Even more importantly, slow administration of justice will undermine the confidence society has in the peaceful settlement of disputes. In corporate litigation, parties to proceedings need to receive legal certainty within a reasonable period of time or it will affect economic activities and the willingness of corporations to make financial investments. In civil litigation, such as custody issues, there is a great personal interest to have a speedy outcome of the proceedings, also because lapse of time may strengthen 'de facto' situations which may not be in conformity with 'de jure' entitlements. In administrative law, one may refer to the undesirability of prolonged uncertainty for asylum seekers. The deterrence provided by the criminal law will only be effective if society sees that perpetrators are sentenced within a reasonable time, whereas innocent suspects undeniably have a huge interest in the speedy determination of their innocence. Much more can be said about the underlying interests that Article 6 seeks to protect, but that is not the aim of this article.
Unlike the case in other African countries, such as South Africa, Kenya and Zimbabwe, the Namibian Constitution does not require courts to exclude evidence obtained through human rights violations if ...the admission of that evidence would render the trial unfair or would be detrimental to the administration of justice. The only article in the Namibian Constitution dealing with the issue of evidence is article 12(1)(b), which provides that ‘no persons shall be compelled to give testimony against themselves or their spouses, who shall include partners in a marriage by customary law, and no court shall admit in evidence against such persons’ testimony which has been obtained from such persons in violation of article 8(2)(b) hereof’. However, Namibian courts have invoked the criteria (set out in the Constitutions of South Africa, Kenya and Zimbabwe) in determining whether or not to admit evidence obtained through human rights violations. This article deals with the jurisprudence emanating from Namibian courts dealing with evidence obtained through human rights violations, and highlights the challenges that courts have grappled with in dealing with such evidence. The issues discussed are the relevant provisions relating to the admission of evidence obtained through violating human rights; the tests courts have developed to decide whether or not to admit evidence obtained through human rights violations; the right to remain silent at the time of arrest; the accused’s right not to incriminate himself at the trial; the right to consult a lawyer before making a statement; and evidence obtained through violating the rights to freedom from torture, cruel, inhuman or degrading treatment. It is recommended that Namibia may have to amend its Constitution to provide, inter alia, for criteria to be used in deciding whether or not to admit evidence obtained through human rights violations.
The right to enforcement of administrative court decisions is an integral part of the right to access the court. Article 6 subsection 1 of the Convention for the Protection of Human Rights and ...Fundamental Freedoms on the right to a fair ( just) trial and article 47 of the Charter of Fundamental Rights of the European Union on the right to an effective legal means and fair trial guarantee the implementation of binding court decisions. Otherwise, the provisions on the right to a fair trial would be deprived of every efficient effect. The author’s research will be divided into two parts. In the first part, the practice of the European Court of Human Rights will be analysed from the stance of infringement of rights to the enforcement of administrative court decisions. The authors will demonstrate the constituent parts of the law on the enforcement of administrative court decisions which make up a part of the guarantee to a just judicial dispute in the context of article 6 subsection 1 of the European Convention. The second part will research the practice up to date of the European Union Court related to the application of article 47 of the Charter in relation to the same question on the enforcement of administrative court decisions. The authors will conclude with the hurdles to achieving the right to enforcement of administrative court decisions and the possibilities for overcoming them.
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