Month: November 2015

The European Convention on Human Rights Has to Be Amended

jyThe European Convention on Human Rights*1 has to be amended.

An inadmissibility of individual applications causing their rejection by judges of chambers of the European Court of Human Rights is an object of this research.

This article aims to ascertain whether certain provisions of the European Convention on Human Rights pertaining to finding individual applications inadmissible, causing a rejection of such applications, fall in compliance with the principles of the Rule of law and with the general doctrine of Judicial Review.

A necessity for such a research of the topic ensues from multiple facts when judges of chambers of the European Court of Human Rights, while acting in individual capacity ( i.e. the so- called-single judges) with competence mentioned in Article 27 of the European Convention on Human Rights adopt their decisions which prevent the Court from further making a thorough judicial scrutiny to merits and facts of applications received. One of the proving examples of this is the fact as follows.

Since 2007 the Kyiv Circuit court of Ukraine has not been hearing a law-suit of the Association of Independent jurists and journalists “The Democratic Space” (here and after – the Association) submitted against the Ukrainian State i.e. against: the president of Ukraine; the Cabinet of Ministers of Ukraine; the Ukrainian parliament; the Ministry of Finance of Ukraine; the State Savings Bank of Ukraine. The law-suit’s requirement before the court was: to enact a judgment which could state that the Ukrainian State violated the lawful right of Ukrainian nationals to receive back their economies ever deposited by them in banking facilities of the then Soviet Ukraine, prior to 02 January 1992, and which had not been returned to them since then.

Having ascertained that such a violation occurred on account of gross infringements by a judge of the Kyiv Administrative court of Ukraine, the Association required from the Highest Qualification Committee of judges of Ukraine to institute a disciplinary proceedings against that judge. But this committee, that deals, above all, with questions of bringing judges to disciplinary responsibilities rejected the Association’s request without any proving explanations.

Afterwards, on 10 July 2013, the Highest Administrative court of Ukraine by virtue of its resolution rejected the Association’s law-suit against the Highest Qualification Committee of judges of Ukraine. Within a necessary deadline of the 6- month-term, the Association submitted an application to the jurisdiction of the European Court of Human Rights (here and after – the Court). In this application the association stated that Ukraine had violated the association’s human rights to fair hearing as it is foreseen by Article 6(1) of the European Convention on Human Rights.

On 20 March 2014 a chamber judge of the Court adopted a decision writing that the Association’s application was rejected by him because he had found it inadmissible and as such that might not be appealed before the Grand chamber of the Court. An examination of this very decision both as of some other decisions enacted on account of other applicants’ applications showed that such judicial decisions did not fall in compliance: with requirements: of Article 45 of the European Convention on Human Rights; with some democratic principles, such as: the Rule of law; the judicial review; and the transparency.

In 1977 influential political theorist and professor of law at the Columbia University, Law School, Joseph Razz in his “The Authority of law” in the second its edition”*2. identified constituent principles of the Rule of law as status when there should be clear rules and procedures for making laws, and when there should be transparency of legal provisions of the law and of judicial decisions. An examination of the aforementioned decisions of those single judges of the Court stated that the decisions lacked transparency of precise reasons for finding applications inadmissible. And if it is so, then these decisions have to be admitted as null and void and be repealed as invalid because they don’t fall in compliance with the Rule of law. But unfortunately the above-mentioned Article 45 of the European Convention on Human Rights, foreseeing a necessity to indicate reasons, for declaring applications inadmissible does not foresee any subsequent status for those applications fallaciously found by some single judges inadmissible as it is mentioned above, that certainly contributes to all judges not to indicate in their decisions precise reasons for declaring the applications inadmissible that in the long run contributes to a rejection of many individual applications without making a thorough expected scrutiny to merits and facts of the applications.

Judicial Review is the doctrine under which legislative or executive actions are subject to review by the judiciary. According to a definition, drawn in the “Black’s Law Dictionary” *3, judicial Review is defined as power of courts to review decisions of another department or level of government. As we see, judicial review is an essential element of any judicial system that cannot do without the judicial review. A chamber of the Court may be incontrovertibly acknowledged to be a department of the European Court of Human Rights under which the Grand Chamber, if assessing the latter by its core is the department of Higher jurisdiction, that can be substantiated by provisions of Article 43 of the European Convention on Human Rights, that states that within a period of three months from the date of the judgment of a chamber, any party to the case may request that the case be referred to the Grand Chamber that will have to decide the case by means of ruling a judgment. So if to admit, that the Grand Chamber has higher jurisdiction, then a chamber of a district Court has lower jurisdiction, like a lower department making an initial scrutiny of an application by virtue of reviewing the application with the object of finding an admissibility of the application. If so, then according to the democratic doctrine of Judicial Review, this chamber’s decision has to be also subject to judicial review by the Highest Chamber of the Court, i.e., – by the Grand Chamber on the basis of applying to the principle of the analogy of law as it is implied by the aforementioned Article 43 of the European Convention on Human Rights.

Only such a procedure will ensure an activity of the democratic principles in the European Convention on Human Rights in the process of making justice by the European Court of Human Rights.

Going out of all this, there are enough grounds to conclude that provisions of the European Convention on Human Rights pertaining to finding inadmissibility of individual applications don’t fall in compliance with the Rule of Law and with the other democratic principles of making justice as it is mentioned above. In order these provisions could fall in compliance with the Rule of Law and with the other aforementioned democratic principles, there should be made amendments as follow:

Article 45 of the European Convention on Human Rights should be supplemented by clause 3, reading: If reasons are not given for judgments and for decisions declaring applications inadmissible, then such decisions shall be declared to be null and void, i.e. – repealed by the Grand chamber of the European Court of Human Rights.

Further on: Article 43 should be supplemented with clause 4 reading that within a period of three months from the date of a judgment\a decision of a chamber, a party to the case whose application is declared inadmissible may request that the case be referred to the Grand Chamber for reviewing legality of an ascertainment of inadmissibility of the application. In case of finding such an inadmissibility to be illegal, the Grand Chamber shall repeal such chambers’ decisions by virtue of its judgment.

References:

*1. European Convention on Human Rights,https:\\en.wilkipedia.org… /European_Conventi…
*2. The Authority of law-Hardcover-JosephRaz-Oxford…
*3. Black’s Law Dictionary:legalsolutions.thomsonreuters.com/law… /law… /…

The author of this article was born in 1952 in Kirovograd in Ukraine. While under the Soviets, he graduated from the English faculty of the Kirovograd Pedagogical University and the law faculty of the Odessa State University named after Mechnikov I.I. In July 1994 he graduated from the Central European University, the Constitutional Law stream in Budapest Hungary. In August 1995 he graduated from the International Institute of Human Rights in Strasbourg,France. From September 1994 up to December 1995 he was exploring the US Legal and political systems first-hand. In 1995 the University of the State of New York awarded him with a Diploma of Master of Laws in Comparative Constitutional law. Beginning from 2003 he has been acting as an elected President of a community, non-profit organization-the Association of Independent jurists and journalists “The Democratic Space”.

 

Florida’s Phosphate Industry Officials Display Little Concern For Florida Riparian Waterways

0The state of Florida supports riparian waterways as public domain by law. Riparian waterways are defined as rivers, stream, lakes, marshes, bogs, aquifers, springs, or any navigable waterway above or below ground, including freshwater and saltwater. For instance, one navigates a canoe from a riparian (public) river into a small spring that is surrounded by multiple landowners encompassing the land around the spring. Riparian water rights grant anyone the right to canoe, swim, boat, or just spend leisure time anchored just off the shoreline of the spring.

Following the example above, imagine one scuba diving into the aquifer feeding the spring through an opening between the rocks in an underground (riparian) cavern filled with crystal clear water that also traverses property bounds above. Once in the cavern, one can cross property bounds with riparian (public) waterway rights (2). The examples of riparian waterways described above do exist all over central Florida. Florida’s phosphate industry officials know this as well.

Phosphate industry officials know the irreparable environmental damage caused by strip mining riparian waterways. Florida’s phosphate industry officials buy television commercials showing wholesome industry practices that create local jobs to feed people worldwide. This is a “smoke and mirrors” tactic that Florida citizens as a whole do believe, based on Florida Institute for Phosphate Research, (FIPR) studies. However, industry practices have little if any relationship to the TV ads portrayed by phosphate officials as described above.

The TV ads do not mention the last seventy years of destruction to Florida’s unique hydrological landscape and riparian waterways. The ads are not true based on empirical daily industry practices by phosphate industry officials. Statistically speaking, historically, phosphate industry officials reclaim abandoned mines in a 1 to 5 ratio. Meaning, reclamation of abandoned mines occurs to one out of five abandoned mines. The rest of the environmental damage is hidden from public view by building thousands of acres of massive earthen berms to surround the abandoned highly toxic leftovers (1). When industry “mishaps” occurs in “abandoned phosphate mined lands”, historically, Florida’s taxpayers cover the cost to neutralize the severe environmental damage, not the phosphate industry.

Mishaps occur regularly at all Florida phosphate plants causing severe environmental impacts, being hidden from the public, only to be discovered later by state environmental officials. However, many “accidents” occur in public view such as when a phosphogypsum stack failed and billions of gallons of toxic radioactive wastewater and by-products inundate the surrounding areas with a radius measured in kilometers. Riparian (public) waterways also become polluted, disrupted, or entirely stopped from flowing by phosphate industry mishaps.

Natural water flow volumes in the major riparian waterways near phosphate industry operations decline steadily year after year without much ado from Tallahassee, (capital) or local authorities. Maybe the millions of dollars donated to both political parties in the state stop the legal process and oversight to remedy Florida phosphate industry accidents?

Reference
1. Phosphate Mining | Sierra Club. – sierraclub.org/florida/phosphate-mining.
2. Understanding the Science Behind Riparian Forest Buffers: Effects – pubs.ext.vt.edu/420/420-151/420-151.HTML.

Florida Mines is your website for learning the unethical practices of Florida’s phosphate strip mining industry. See how they destroy and pollute unique aquifer systems, watershed, springs, creeks, and rivers.

How Does an Attorney Get Named a Super Lawyers Rising Star

polMany clients searching for an attorney to work with in their local area use resources such as listings and rankings of the best attorneys for specific areas of law. One of the most common is Super Lawyers, which puts together state by state lists and designations across the legal spectrum.

Here, learn more about the Super Lawyers Rising Star honor, what it means, and how it gets awarded. That will give you further clarity into what it means to work with an attorney who has received the designation.

The Rising Star status is awarded by the organization to no more than 2.5 percent of all attorneys in the specified region or state. That offers a very slim total pool of individuals who will receive the designation each year.

Attorneys who get named on this list must first be either formally or informally nominated. They then go through what has become a patented selection process to narrow down the list of candidates. More than a dozen factors are considered and evaluated, incorporating professional achievement, peer recognition, and a range of additional indicators.

After this, there’s still a further round of peer evaluations, known as a Blue Ribbon Review by Super Lawyers. This is what makes the final cut from the remaining candidates the actual individuals who are named Rising Stars.

There are also further qualifications in order to be considered. For instance, Rising Stars must have been in practice for no more than 10 years. Additionally, they must be 40 years old or younger. Both of those separate the Rising Stars from attorneys who are qualified to receive other designations by Super Lawyers.

More of the specifics on the process itself are available to be found on the Super Lawyers website. Ultimately though, if you work with an attorney who’s been named as a Rising Star by Super Lawyers, you can rest assured that he or she is considered by Super Lawyers to be among the very top of attorneys in the area.

Also important is that attorneys can’t buy their way onto these lists. While many other “rankings” are little more than paid advertising, with premium positions costing more money, the Super Lawyers Rising Star process is based entirely on the aforementioned nomination, review and evaluation process.

Therefore, it’s an easy way to be confident about who you decide to hire or not, and seeing the designation on an attorney’s website should help clue you in on his or her status.

Justice And Its Types

juJustice relates to the determination of the right thing based on the common sense and the facts and evidence available. In the present world, the administration of justice assumes more importance owing to the competitions and complexities arising from the development and civilization. It is found even among the Gods. There are so many incidents to quote from the scriptures. Hinduism has produced many manuscripts and treatises on the administration of justice. Arthasasthra written by Chanakya of Gupta dynasty and Manusmriti are two popular sources for the righteous dispensation of justice followed in ancient India.

According to the Hindu mythology, Brahma the Creator was put behind the bars by Muruga the younger son of God Shiva, for not knowing the meaning of AUM that is the basis of the Universe (known as the Pranav Mantra in Sanskrit). The same Brahma was cursed by Shiva as “Not to be worshiped by anyone in the world” as punishment for his bluffing during a duel between Vishnu and him. Lord Krishna who made the divine discourse Bhagavad Gita during the Kurushetra battle of Mahabarath fame, was cursed by Gandhari, mother of the Kauravas, to die without any kith and kin to defend him.

There are basically four varieties of justice found in our world as given here below.

Natural Justice: This unique type is found in the Nature we live in. There is no partiality or bias involved in this system. Each and everything, including the humans get the equal opportunities and treatment to live in this world. The one with superior skills and powers stands to succeed. This principle is adopted in any system of fair settlement of disputes. In the disciplinary action of an office, the charge-sheeted person will also get the chance to defend his side by presenting his arguments and evidence. In a Court of law, the accused can engage an attorney for proving his side.

Social justice: Treating all people of the society equally irrespective of their color, caste, region, and religion is the social justice. Nations pursue different welfare measures to benefit the various sections of the public and foster the peace and prosperity. For instance, the refugees of wars and natural calamities receive monetary and other assistance to restore their normal lives. The reservation and preferential treatments in education and employment are done to encourage the underprivileged class to come up. Removal of the restrictions and taboos on the lower castes helps them gain freedom and access to all places and resources of the society.

Economic justice: The removal of the inequalities in the income and asset distribution among the citizens is called economic justice. Nationalization of the enterprises and distribution of the resources like finance, land, infrastructure go a long way in ensuring the economic justice. The availability and cost of inputs certainly impact the economic progress of the downtrodden sections. Subsidies, incentives and technical guidance are provided to encourage the indigent but skilled people to take up business activities.

Political justice: The denial of rights and opportunities to the people in choosing the prospects and future takes away the political justice. Devolution of powers to elect and govern a territory facilitates the growth of political justice. Several nations earned their independence when the erstwhile rulers failed to uphold the values of freedom and civil rights of the native people. Even the arrogant kings faced the tune of time to be dethroned by the uprise of civilians.

All religions seek to promote justice and welfare. Hinduism believes that human beings stand to suffer the ups and downs of life depending on the effects of actions in the previous births. The death and birth recur till the soul gets purified to attain the divine status. This is the justice of the Almighty. One that leads an honest and selfless life is sure to reach the heaven.