جستجوی مقالات مرتبط با کلیدواژه « european court of human rights » در نشریات گروه « فقه و حقوق »

The right to freedom of information is considered as one of the most fundamental human rights, as well as one of the requirements of democracy and one of the political rights, which plays an essential role in guaranteeing other rights through raising awareness of people and transparency of performance. governments have The said right, although according to Hofeld's analysis, it is considered one of the rights-claims that the governments are obligated to, it is not an absolute right and has limitations. The restrictions governing the aforementioned right are mainly public order, public interest, public interest, ethics and the like, which are considered abstract concepts and there is no consensus on its definition and nature, and it is not defined in human rights laws and documents. . For this reason, there is always a possibility that they will be abused by governments. The possibility of abuse, especially in the case of the said right, which is actually the right to access administrative documents and documents, and is actually the right to monitor the performance of the government, is more. Therefore, it is necessary to examine the scope of the aforementioned concepts in the procedure of judicial authorities. Considering that governments are always one side of such lawsuits and there is a possibility of usurpation in the proceedings of domestic judicial authorities, for this reason, the judicial authority beyond the governments, the same authority that specializes in human rights issues. Paying better than any other institution can be decisive in this regard. Therefore, an attempt has been made to analyze the procedure of the European Court of Human Rights as an international, albeit regional, judicial authority regarding the limitations of the right to freedom of information in a descriptive-analytical manner.

The European Court of Human Rights, which is also referred to as the Strasbourg Court, as a court that has international jurisdiction in the field of human rights on a regional scale, has repeatedly faced the issue of "Hijab" in its rulings. The approach of that court is that governments have the right to limit the hijab in public institutions, especially schools. The following article tries to criticize the performance of the European Court of Human Rights regarding the restriction of the hijab in public institutions from the perspective of the international human rights system. Ragham's hypothesis is that the European Court of Human Rights, influenced by the supremacy of state hegemony, by issuing a ruling to restrict the hijab, not only did not guarantee human rights, but violated them. In order to verify its hypothesis, the upcoming research has been carried out with a descriptive-analytical method based on the collection of information in a library form. The following article has proven that this action of the European Court of Human Rights violates the principle of freedom that the first generation of human rights goes back to. By adopting this approach, the aforesaid court violated the principle of religious freedom which is accepted in the International Bill of Rights and also has a customary dress, and also violated Article 9 of the European Charter of Human Rights, which according to a mission For which the court is drawn, it is considered a violation of the purpose.

Although Article 10 of the European Convention on Human Rights recognizes the right to freedom of expression for the citizens of the contracting states, it considers he use of this right subject to observance of formalities,one of which is respect for the spiritual dignity of others.The present reseach paper,,which was written in a descriptive-analytical method and using library and internet sources,deals with the main question that what the most important criteria are for distinguishing between the permission of freedom of speech and the prohibition of committing crimes against the spiritual dignity of individuals.The findings of the research show that the European Court of Human Rights has identified four criteria:the position of the audience,the nature and purpose of the statements,the ability to verify the statements,and the behavior and speech of the audience.

In the past two decades, Europe has had numerous conflicts resulting from the clash between freedom of expression and religious insults. The European legal system considers freedom of expression as one of the fundamentals of a democratic society and a basic condition for individual progress and self-actualization. The central approach of the European Court of Human Rights is that freedom of expression includes not only non-insulting statements but also offensive, shocking, or provocative statements. However, this court seeks to resolve the conflict between freedom of expression and blasphemy and create a balance among different interests. On the one hand, under “protecting others’ rights,” the court spoke of banning severely insulting statements that cause significant distress to religious followers. On the other hand, from a societal perspective, the court considered the risk of a public outcry from religious societies due to religious insults. Recently, however, the court gave significant weight to the political, scientific, and artistic aspects of expression when balancing freedom of expression against religious sensitivities, thereby expanding freedom of expression’s scope. Nonetheless, the threat to public order remains a key factor in the court's decisions to restrict statements containing religious insults. This study used a qualitative method based on content analysis with a descriptive-analytical approach and employing library and internet sources.

Asylum-seeking has emerged as a critical social issue at the international level in recent decades. Every year, millions of refugees leave their home countries or places of residence, seeking refuge in other countries to escape economic, military, political, and social crises. Refugees embark on the arduous asylum process due to the fear of torture and persecution in their home country or place of residence, in pursuit of a life that aligns with the minimum standards of human rights. While some successfully obtain refugee status from the host country, some face deportation or repatriation after going through the legal process. In some cases, they may even be returned to a third country, where persecution awaits based on justified evidence. Returning them to their former country is certainly the worst-case scenario for asylum seekers or refugees. The international community has established a legal framework for refugee protection through the 1951 Convention and the 1967 Protocol. Certain rules and principles outlined in these documents are so fundamental that no reservations can be made to them. A notable example is the principle of non-refoulement which prevents the return of refugees to their home country or a third state where persecution is feared.The present study tried to answer the following question: What prevents the return or deportation of a refugee to their home country or a third state? While the treaties do not explicitly answer this question, the jurisprudence of the European Court of Human Rights provides valuable insights into the meaning and legal nature of this principle, as well as methods for assessing the status of a refugee when deciding on repatriation. Although the European Court of Human Rights lacks the authority to review and apply the 1951 Convention Relating to the Status of Refugees, member states of the Council of Europe are obligated to ensure the respect of rights outlined in the European Convention on Human Rights for all individuals within their jurisdiction, including refugees and asylum seekers. At the intersection of the European Convention on Human Rights and the 1951 Convention Relating to the Status of Refugees, the European Court of Human Rights examines general conditions in the state concerned and the individual applicant’s situation to determine factors preventing repatriation or expulsion.  To this end, the Court has set specific limits on the right of states to expel refugees and asylum seekers from their borders. The Court indirectly supports the principle of non-refoulement, aiming to ensure respect and prevent violations of relevant articles of the European Convention on Human Rights, particularly Article (3) which prohibits torture. This implies that the reservation cannot be applied to the principle of non-refoulement, which extends beyond the scope of the 1951 Convention.

Literature Review:

While there are many articles addressing refugee protection and the non-refoulement principle under the European Convention on Human Rights, they have not explicitly delved into the prohibition of reservation to the non-refoulement principle. Therefore, the current study can be regarded as innovative in both its subject matter and content.

Adopting a descriptive–analytical method, the present research examined national and international legal literature, the jurisprudence of the European Court of Human Rights, and pertinent international treaties.

The European Court of Human Rights, functioning as a monitoring mechanism for the European Convention on Human Rights, has encountered numerous cases involving asylum seekers seeking refugee status. Its jurisprudence has significantly contributed to the development and evolution of laws pertaining to refugee protection. By establishing a connection between the European Convention on Human Rights and the Convention Relating to the Status of Refugees, the Court has effectively offered indirect support to refugees, safeguarding them against deportation, extradition, and repatriation. Its jurisprudence firmly prohibits the application of reservations to the non-refoulement principle.

The discourse of good governance in the field of public law and international law is one of the new topics in the administration of the country, which is initially defined as the exercise of political, economic and administrative power to manage public affairs at all levels in a good, efficient and appropriate manner. However, this new concept neither among academics nor domestic and international bodies has clear definition, dimensions or territory. Each definition usually looks at some aspects of it, and finally it is not clear what effects and Elements it has. There is also disagreement about its legal nature. Among the international bodies, the European Court of Human Rights has one of the most prominent case law in recognizing and explaining good governance, which itself has gradually evolved. Examining the procedure of the court, while giving a better understanding of the concept of good governance, shows that the concept of good governance has been developed in the case law of the ECtHR and has been introduced as a legal principle with binding obligations and specific dimensions and areas. To the extent that in the light of that case law, provisions of the European Convention on Human Rights, which make no reference to good governance, have also been developed.

When rights are recognized for people, but the simultaneous application of two rights causes damage to one or both rights, we face the problem of conflict of rights. There are three main approaches to solve such conflict: The first approach is to create meta-rules such as conflict resolution rules, which provide indicators to the public and finally to the judge to clearly understand the priority of one right over another. The three main forms of meta-rules are balancing, equilibrium and hierarchy. The second approach is to accept six criteria to resolve human rights conflicts, which have been used repeatedly by the European Court of Human Rights. From these six criteria, one or more criteria can be used depending on the situation governing the conflicting rights. The third approach is to apply the minimum restriction criterion. This means that any method that imposes the least amount of restrictions on two rights is the best method of conflict resolution. This article evaluates the possible solutions with a descriptive-analytical method by explaining the theories and relying on the jurisprudence of the European Court of Human Rights.

The acceptance of the principle of publicity of the trial as one of the fundamental examples of a fair trial in the European system of human rights has its roots in the procedure of inquisition courts in the Middle Ages. Lack of publicity of trials and violation of the rights of the accused in these courts has given rise to this inference in European thought that the secrecy of the trial and the disregard for the rights of the accused are considered to be two interrelated cases. Accordingly, a public trial is justified by this argument that public oversight will minimize the grounds of injustice in the criminal justice system. Therefore, achieving this requires conditions and mechanisms that give personality to this principle and make it consistent, because the right to a public trial is a composed concept and can be decomposed into its different components, to understand and explain the true and precise meaning of this right, the sum of those requirements must be considered. However, in certain cases, the publicity of the trial can, like any principle, have exceptions and legal limitations. Therefore, in this article, we have tried to study the European Court of Human Rights rulings and examine the case law of this institution concerning the requirements and restrictions of public trial before national courts with a descriptive-analytical approach. The results of the study show that, in general, the European Court has been able to satisfy the requirements related to the actual realization of the public trial with an authoritative action and a procedure far from hesitation and to adjust its limitations in line with the rule of the principle of publicity of the trial

European Court of Human Rights (ECtHR) which has been created under The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is a supervising organ for rights enshrined in the convention that belongs to the member states’ nationals. The court for more than a half century has received various claims often from individuals. This claims eventually faced states with a series of decisions that their compliance was compulsory. Thus, it is evident that court due to its position and authority always has been abled to affect member states domestic legal systems. The court has had various structural, organizational, legislative, executive and judicial effects on the internal human rights regimes of member states of the Council of Europe. However, there are some critiques regarding court’s qualitative impact on promotion of human rights in domestic level, the court has normatively been tremendously effective on the efficiency of convention rules in domestic level and has made the convention more dynamic.

Context and When examined issues related to family, the concept and types of the family is assumed as an obvious fact. However, with deep fundamental differences between different perspectives, may be this types offered by each of the schools of thought and law do not match together. As far as in some cases, this discrepancy has progressed to the point of general contradiction. In this regard, in order to create a common understanding of the different concepts and types of the family in Islam and the West, in this paper case law of the European Court of Human Rights will be studied. Which is one of the most important human rights judicial institutions and its case law and practice in the field of international law has the legal validity. In this article the case law of the European Court of Human Rights has been examined as an example of thinking based on secular ideas. Also, the view of Islam on the issues raised in the cases of the Court was studied to explain the issue.Research  The present article, with a legal approach and based on an analytical exploratory research, seeks to answer the question that; what is the types of the family in western societies? And what do the findings, which are based on the case law of the European Court of Human Rights, what does it have to do with Islamic culture? After studying the procedure of the European Court of Human Rights and the Islamic perspective, we found that: The scope of relationships that include the legal protection of the right to family life based on the court's practice is much narrower than the concept of family or Rahem in Islam, which is under the special protection of Islamic legislator and these relationships cannot be severed under any justification. Some of these relationships are consistent with what is supported and emphasized in Islam under the title of “Sele Arham"[1]; such as the relationship between spouses, parents and children, grandparents, sisters, brothers and aunts and uncles.  Among these, some of these relationships are not only unacceptable in Islam, rather, heavy punishments are also enforced. Such as free relationship based on sexual orientation outside marriage contract and illegitimate relationship which in case of approving such relationship under ‘family’, it would lead to family breakdown and degeneration as defined by Islam and tradition and would cause disorder in nurturing children and future generations. Finally, the important point to consider is that from Islamic viewpoint, family is defined based on the lineal and marriage and the existence or absence of the aforementioned basic elements are not effective in approving or disapproving relationship within family life. However, the European Court of Human Rights procedure despite the importance of genetic relations(lineal) and relations based on marriage, the basic elements within the court procedure are determining and effective when identifying and approving relations based on family life  in such a way that in certain cases  when there are basic elements for clarifying family at court without genetic relations,  the relationship is  described  as family and even in some other cases  in spite of genetic relations,  in case of absence of basic elements, the relationship is not regarded within family life  but recognized as private life. In fact, it is the humanistic approach that in court procedure the mutual enjoyment is considered as a basic element in family and based on this notion by overlooking legal frameworks such as the principle of marriage between man and woman within family, attempts are made to change these frameworks and offer newly emerging definitions on family. Unlike the Islamic view, the concept and examples of family within the western views are variable and are described based on social norms. Hence, the courts unlike the Islamic viewpoint do not consider marriage only based on religious teachings for family formation and development as it has been stressed upon many times. Therefore, considering the absence of compatibility of this thinking with religious obligations, and the intertwining of public morality with the Iranian public interests within Islamic topics, the enforcement by the governance and its compatibility with human rights issues in Iran, it has led to protect the Islamic views for our country. Since issues such as white marriage and homosexuality and other illegal sexual orientation can in no way be compatible with the Islamic doctrine and it would seriously contradict public morality and our national interests. 1. The Principle of Continuity Devotion to Family.

Mental health includes the absence of mental disorders on the one hand and productive life in the social environment on the other hand, and it is one of the important aspects of health in its general meaning. The right to mental health is realized with the cooperation of governments, and its intervention to privilege the resources and facilities that pave the way to achieve this right. The inefficiency of the legislative and executive powers in creating resources and facilities and removing the existing obstacles puts the duty of suing for violated rights of people - especially mental patients - on the board of the judicial system. The question of this research is how the judicial system supports the right to the mental health of people, which is based on examining the situation of mental patients in enjoying equal freedom with others, treatment, and promotion by searching the judgments of the European Court of Human Rights, the Supreme Court of the United States It is done by the United States and the British Mental Health tribunal. The entry of the European Court and the Supreme Court into the cases of this field is due to general jurisdiction and in line with the realization of the right to a fair trial. These two courts have done solve mental patients’ problems properly. In contrast, the British Mental Health Tribunal, which is the birth of this country's mental health law, as an independent institution, takes steps to protect the right to mental health and provides new solutions for mental patients.

Freedom of expression means that human beings, due to their inherent dignity, have the right to present rational findings arising from this dignity in the form of speech, writing, artwork, commercial advertising, and so on. Freedom of expression violations by states have led individuals to turn to international institutions to enforce their rights after being failed by domestic judicial institutions. Among international bodies, the European Court of Human Rights and the Human Rights Committee, which have jurisdiction over individual complaints, are able to protect individuals against states. The main question of the present paper is how has freedom of expression been reflected in the jurisprudence of the European Court of Human Rights and the Human Rights Committee? This paper using a descriptive-analytical method and library findings including a review of existing instruments concludes that the jurisprudence of the European Court of Human Rights includes  both limited and expansive protection of freedom of expression. Also in the practice of the Human Rights Committee, sometimes due to insufficient evidence, unfair decisions have been made which do not guarantee freedom of expression in a desirable way.

Protecting "national security" is one of the reasons that allows governments to limit the enjoyment of civil and political rights by individuals, organizations, and parties. Compliance with the requirements of this concept, such as the need to protect the rights and freedoms of others, is a reassuring tool for governments to protect their existence, vital interests, and territorial integrity. Despite this, in those governments where national security is organized on a one-dimensional and power-oriented structure, the rights and interests of opponents, including minority groups, may be violated under the pretext of observing "national security". The main question of this article is: “How the jurisprudence of the European Court of Human Rights has interpreted the concept of "national security" in the aforementioned cases?” The present research is written in a descriptive-analytical method using library and internet sources. The author's hypothesis is that the judicial procedure has been devoted to editing and revising this concept to change and adjust it from a one-dimensional and government-oriented concept to a multi-dimensional and people-oriented concept, in such a way that the interests and aspirations of all groups and communities living in a country are provided based on the components of national security in that government.

The present article is based on the analysis of the cases of the European Court of Human Rights and an impartial study of the functions and positive and negative effects of free abortion -with minimal restrictions- regardless of the moral, Philosophical or religious basis; to find out which of the two perspectives on the widespread limitation of abortion, or its widespread licensing, can be most beneficial in practice for the family or society as a whole.The present article is based on the analysis of the cases of the European Court of Human Rights and an impartial study of the functions and positive and negative effects of free abortion -with minimal restrictions- regardless of the moral, Philosophical or religious basis; to find out which of the two perspectives on the widespread limitation of abortion, or its widespread licensing, can be most beneficial in practice for the family or society as a whole.This study first shed light on the European Court of Human Rights' approach to abortion, and under two headings, in an analytical and functionalist manner, enumerates the positive and negative effects of abortion on society. Gender-based abortions, abortion and the exploitation of women, tourism and the abortion industry are just a few of the abusive functions of the free abortion in society that have even gradually reduced the European Court of Human Rights' practice to restricting abortion laws; in conflict with the mother's wishes, the life of the fetus, the rights of the potential father, and other factors, the European Court of Human Rights has preferred a balance between all the interests involved rather than the wishes of the mother.

The margin of appreciation as an established doctrine in the European Court of Human Rights (ECtHR) is a methodology for precise examination of decisions of national authorities by international courts. According to this doctrine, national authorities are in a better position than international judges to decide on the better application of the European Convention on Human Rights.  In this article, the doctrine has been examined from both theoretical and practical perspectives. It has also been discussed whether the doctrine is applicable in international legal obligation of states. Although in the field of human rights the margin of appreciation for states has sometimes been approved, it cannot be extended to all international legal obligations.

The European Court of Human Rights (ECHR) is seen as the most important human rights judicial body not only in Europe but also around the world. However, with its decisions in such cases as Bahrami and Saramati, the ECHR has reduced its popularity and authority as a defender of human rights. Nonetheless, by applying the criterion of "effective control" instead of "ultimate control" for assigning responsibility to international organizations in the Bosporus case, the court seems to have recovered its credibility. This is so despite some well-founded criticism of the Court's decision in this case. This is the topic that the present article seeks to explain by analyzing the ECHR' judgement in the Bosporus Airways v. Ireland case.

Protecting human dignity as an inherent and inviolable right is one of the most important obligations of the government even when a person is liable for his criminal behavior before the law. Adopting a descriptive-analytical method, the present study endeavors to answer the basic question that based on the procedure of the European Court of Human Rights, as an innovative and developed international judicial body, what elements should the courts consider when issuing a judgment in order to impose a punishment protecting the human dignity? After reviewing some judgments of the Court, the research concluded that by observing some formal and substantive principles such as justification of conviction, charge bargaining, ne bis in idem principle, citation of high quality laws, proportionality of offence and punishment and non-recourse to severely painful punishments, the human dignity of offenders is safeguarded. Accordingly, in case of non-observance of the mentioned principles, the legal systems would be exposed to serious human rights challenges, because states' lack of attention to the human dignity of criminals, would make the repressive nature of states to prevail over the fundamental rights of citizens.

The proliferation of Coronavirus around the world and the need to maintain the health of individuals in society have forced many governments to impose restrictions on citizens' rights by imposing social distances, quarantine and closure of educational, economic and sports centers. One important action of governments in combating the spread of coronavirus is the digital tracking of people infected by coronavirus in some countries. This article seeks to answer the following questions. First of all, due to application of this policy in which aspect or aspects of protection of privacy can the states intervene? Second, given that the imposition of restrictions must be done where necessary, the question arises as to whether the restrictions imposed as a result of the digital tracking of people infected or suspected of having the corona virus and its transmission to other members of the community were commensurate with the need to maintain the health of members of the community. An examination of the various measures taken in countries around the world shows that the restrictions imposed on privacy can be justified by simultaneously respecting the health of the citizens of the community as well as the provisions of international human rights law.