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Author Kloth, Matthias
Title Immunities and the Right of Access to Court under Article 6 of the European Convention on Human Rights
Imprint Leiden : BRILL, 2010
©2010
book jacket
Edition 1st ed
Descript 1 online resource (236 pages)
text txt rdacontent
computer c rdamedia
online resource cr rdacarrier
Series International Studies in Human Rights Ser. ; v.103
International Studies in Human Rights Ser
Note Intro -- Contents -- Preface -- Abbreviations -- Part I: Introduction -- I. The scope and objective of this work -- II. The right of access to court under Article 6 (1) of the Convention: the case of Golder v. the United Kingdom -- III. The meaning of "civil rights and obligations" -- 1. The "civil" character of a right under Article 6 (1) -- 2. "Civil rights" regarding employment disputes in foreign embassies or international organisations -- a) The case-law of the Court -- b) Conclusion -- 3. The meaning of the term "right" -- IV. The "Ashingdane Test" -- 1. Legitimate Aim -- 2. Proportionality -- a) The margin of appreciation -- b) A margin of appreciation regarding the application of public international law? -- 3. The very essence of the right -- 4. Conclusion -- Part II: International Immunities -- I. State Immunity -- 1. State Immunity in public international law -- a) Absolute and restrictive immunity -- b) State immunity in international and national law -- (1) International Legislation -- (a) The European Convention on State Immunity -- (b) The United Nations Convention on Jurisdictional Immunities of States and Their Property -- (2) National Legislation -- c) Waiver of State immunity -- d) Immunity from attachment and execution -- 2. State immunity and the jurisdiction of the forum State (Article 1 of the Convention) -- 3. State immunity in the recent Convention case-law -- 4. Alternative approaches to the conflict between State immunity and Article 6 (1) of the Convention -- a) The equality of arms-argument and the role of alternative remedies -- b) The comments of Judge Ress in his concurring opinion in the case of "Bosphorus Airways" v. Ireland -- c) Judge Loucaides' approach: every blanket immunity is a disproportionate restriction on Article 6 (1) of the Convention -- (1) Discussion of the approach -- (2) Conclusion
5. State immunity in employment-related proceedings and Article 6 (1) of the Convention -- a) The case of Fogarty v. the United Kingdom -- (1) International practice regarding State immunity in employment disputes -- (2) The decision of the Court -- (3) Discussion of the judgment -- (4) Conclusion -- (5) The dissenting opinion by Judge Loucaides -- b) Discriminatory immunity rules in employment-related disputes -- c) The case of Cudak v. Lithuania -- 6. The "personal injury exception" and Article 6 (1) of the Convention: the case of McElhinney v. Ireland -- a) Domestic legislation and State practice regarding the personal injury exception -- b) International instruments and the personal injury exception -- c) The restrictive interpretation of the personal injury exception ("insurable" personal injury) -- d) Acts of the armed forces of the foreign State and the personal injury exception -- e) Discussion of the judgment -- f ) Conclusion -- 7. State immunity for serious human rights violations and its compatibility with Article 6 (1) of the Convention -- a) Practice outside of Europe -- b) Conclusion -- c) The case of Al-Adsani v. the United Kingdom -- (1) The decision of the majority -- (2) The reasoning of the minority -- (3) Jus cogens v. State Immunity -- d) Does the UN Torture Convention restrict State immunity in civil proceedings? -- (1) A historic and systematic interpretation of Article 14 of the United Nations Torture Convention -- (2) Conclusion -- e) Developments since the Al-Adsani judgment -- (1) Developments at the international level -- (2) Developments at the domestic level -- (3) The case of Germany v. Italy before the International Court of Justice -- f) Conclusion -- 8. The responsibility under the Convention of the foreign State which successfully invokes immunity in the proceedings before the courts of the forum State
II. Immunity from execution and the right to enforce a judgment under Article 6(1) of the Convention -- 1. The right to execute a judgment -- 2. Immunity from execution -- 3. Case-law of the Court -- a) The case of Kalageropoulou and Others v. Greece and Germany -- (1) Background to the case -- (2) The enforcement proceedings in Greece -- (3) The decision of the Court -- (a) The complaint against Germany -- (b) The complaint against Greece -- (4) Further developments on the matter -- b) The case of Treska v. Albania and Italy -- c) The case of Manoilescu and Dobrescu v. Romania and Russia -- d) The case-law of the Commission: the case of N, C, F and AG v. Italy -- e) Immunity from execution and State agencies: the case of Hirschhorn v. Romania -- f ) Conclusion -- 4. Jus cogens and the right to enforcement of a judgment -- III. Immunities of Heads of State, foreign ministers, diplomats and other State officials -- 1. Immunity of incumbent Heads of States -- a) The legal position under public international law -- (1) International instruments -- (2) Exemptions in the statutes of international criminal tribunals -- b) The case of Association SOS Attentats and Beatrix de Boery v. France -- (1) The decision of the Court -- (2) The conflict between immunity of incumbent Heads of State and Article 6 (1) of the Convention in the present case -- (3) Conclusion -- 2. Immunity of former Heads of State -- a) The legal position under public international law -- b) Conflict with Article 6 (1) of the Convention -- c) Case-law of the Court -- 3. Immunity of diplomats and foreign ministers -- a) Diplomatic and consular immunities -- (1) Diplomatic immunities -- (2) Consular immunities -- b) Case-law of the Convention organs -- c) Immunity of foreign ministers -- 4. Immunity of other State officials -- a) The legal position under public international law
b) Case-law of the Court: the Jones and Others case -- (1) The decision of the Court of Appeal -- (2) Criticism of the judgment -- (3) The decision of the House of Lords -- (4) The case before the European Court of Human Rights, Conclusion -- IV. Immunity of International Organisations -- 1. Reasons for the immunity of international organisations -- 2. The scope of the immunity of international organisations -- 3. The conflict between immunity of international organisations and Article 6 (1) of the Convention -- 4. The case-law of the Convention organs -- a) Case-law of the Commission: the case of Spaans v. Netherlands -- b) The Cases of Waite and Kennedy v. Germany and Beer and Regan v. Germany -- (1) The decisions of the Court -- (2) Discussion of the judgments -- c) The case of Beer and Regan v. Germany (II) -- 5. Liability for acts of international organisations -- 6. Requirements for alternative means in order to satisfy the "proportionality" criterion -- 7. The "proportionality" criterion in cases against international organisations which are not employment-related: the case of the Association of Citizens "Mothers of Srebrenica" and Others v. the Netherlands and the United Nations -- 8. Conclusion -- V. Other restrictions on the right of access to court for reasons based in public international law -- 1. The case of Prince Hans-Adam II of Liechtenstein v. Germany -- 2. The case of Markovic and Others v. Italy -- Part III: Domestic Immunities -- I. The Liability of Public Authorities under English Law -- 1. The former approach by the Commission -- 2. The initial approach taken by the Court -- a) The Case of Ashingdane v. the United Kingdom -- b) The case of Fayed v. the United Kingdom -- 3. Immunity of the police: the case of Osman v. the United Kingdom -- a) The judgment of the Court -- b) Responses to the judgment
c) How the Court was alleged to have misinterpreted English tort law -- 4. Immunity of the social services: the case of Z and Others v. the United Kingdom -- 5. The question of compensation -- 6. Crown immunity: the case of Roche v. the United Kingdom -- a) The decision of the majority -- b) The opinion of the eight dissenting judges -- 7. Various approaches to a resolution of the conflict between "immunity from suit" and "immunity from liability" -- a) The "Gearty thesis" -- b) A "common sense application" of Article 6 (1) -- c) The "dual limb"-approach -- d) Proposal for a solution: the establishment of a "but for" test as first proposed by Francoise Hampson -- (1) The dissenting opinion of Judge Zupancic in Roche v. the United Kingdom -- (2) The "but for" test -- (3) Conclusion -- 8. Judicial immunity in English tort law and in other legal systems -- II. Parliamentary Immunity -- 1. The case-law of the Commission -- 2. The case-law of the Court -- a) The content of the remarks by a Member of Parliament -- (1) The case of A v. the United Kingdom -- (2) Discussion of the judgment -- (3) Conclusion -- (4) The case of Zollmann v. the United Kingdom -- b) The occasion on which the statements have been made: the "Italian cases" -- c) The refusal of the request by a Member of Parliament to have his parliamentary immunity lifted: the case of Kart v. Turkey -- 3. Conclusion -- Summary -- Bibliography -- Index
Combining immunities under public international law and privileges afforded to certain bodies and persons by domestic law, this book discusses the case-law of the European Court of Human Rights on the conflict between immunities and Article 6 of the European Convention on Human Rights
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Electronic reproduction. Ann Arbor, Michigan : ProQuest Ebook Central, 2020. Available via World Wide Web. Access may be limited to ProQuest Ebook Central affiliated libraries
Link Print version: Kloth, Matthias Immunities and the Right of Access to Court under Article 6 of the European Convention on Human Rights Leiden : BRILL,c2010 9789004181847
Subject Convention for the Protection of Human Rights and Fundamental Freedoms -- (1950). -- Article 6.;Due process of law -- European Union countries
Electronic books
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