Global Campus Europe: EMA

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https://reponew.gchumanrights.org/handle/20.500.11825/42
European Master in Human Rights and Democratisation Theses written in partial fulfilment of master's degree

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Browsing Global Campus Europe: EMA by Subject "administration of justice"
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    Access to justice and human rights: the recognition of customary justice systems
    ( 2011) Roque, Rita : Almeida Sutil ; Suksi, Markku ; Myntti, Kristian
    There is an increasing development and institutionalization of customary justice systems in the legal order of several countries in the world. These justice mechanisms are recognized for providing an affordable and culturally relevant remedy to the population, in a more simplified and accessible way. Hence they are considered as useful tools to enhance the access to justice. Bearing in mind some of the human rights challenges associated with the use of customary justice systems, it is essential to ascertain if the main human rights that comprise the access to justice can be respected. In the General Comment No.32, concerning the right to equality before courts and tribunals and to a fair trial, the Human Rights Committee acknowledged that the customary courts recognised in the State legal order fall under the human rights provisions of article 14 of the ICCPR. This thesis examines the human rights obligations and the normative orders of States that have recognised customary justice systems and concludes that there are still numerous difficulties in complying with the established human rights provisions. Furthermore, it considers that, in the current circumstances, the human rights obligations of the States should be additionally defined and promoted.
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    Access to justice in Poland and length of proceedings as the main obstacle to access to justice in Poland
    ( 2010) Augustyn, Zofia ; Zwart, Tom
    The right to access to justice is one of the fundamental human rights and can be found in most important human rights treaties. Like with almost every human right, there are a number of problems which create a gap between the reality and an ideal access to justice. As access to justice is a very complex term, also the variety of problems connected with access to justice is very broad. This paper will examine the length of proceedings as the main obstacle to access to justice in Poland. The first part of this paper is introduction of the term access to justice and different aspects of this term. First chapter includes also historical background of the access to justice. Second part, concerns law instruments, which guarantee, the right to be tried within reasonable time, as one of the crucial factors, of the access to justice. The third part includes the criteria of the right to be tried within reasonable time in jurisprudence of the European Court of Human Rights and deals with possible sources of the delays of the proceedings in the Polish courts. The last part concerns possible ways of improvement of the right to be tried within reasonable time in Poland.
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    Criminal accountability for violations of human rights and humanitarian law in Kosovo
    ( 2006) Hasani, Avni ; Schabas, William A.
    This master’s thesis aims to elaborate the legal framework as well as judicial actions for prosecution of those responsible for commission of serious violations of international humanitarian law and human rights in Kosovo. The aim of this study is to conduct an indepth analyse of the existing international and domestic legislation and other existing measures for trying war crimes perpetrators in Kosovo. The issue of accountability for atrocities is a major problem that needs to be addressed in post-conflict and post-war societies. This thesis tries to argue that there has not been an adequate human rights response and criminal accountability to all alleged violations of human rights and international humanitarian law, committed during the Kosovo conflict. Impunity for violations of the international humanitarian law can create an obstacle to achieving a lasting peace and can encourage further horrendous crimes. The creation of the ICTY in 1993 was a landmark moment in the history of international efforts to bring the conduct of war under a certain degree of rule of law and to hold those responsible for transgressing international humanitarian law. The ICTY and the domestic courts are tools for promoting reconciliation and restoring true peace. It is strongly believed that the prosecution of war crimes in Kosovo by both ad hoc tribunal and domestic courts is crucial in promoting justice and reconciliation and in addressing human rights and humanitarian law violations. This thesis explores that purely international tribunals, such as the ICTY, have a limited capacity to prosecute only the most egregious suspects and are not perceived as legitimate by the local population belonging to the conflict. At this stage of the justice system in Kosovo, if the prosecution is left to the domestic system that lacks both capacity (physical infrastructure and resources) and legitimacy, will not work to accomplish the objectives of post-conflict justice: combating impunity and reconciliation.
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    Foreign agents or human rights defenders? The protection of non-governmental organisations in Russia vis-à-vis Council of Europe model : case study of 2012 "Law of Russian Federation on Foreign Agents"
    ( 2013) Skalova, Marie ; Simons, William B
    This thesis examines the compatibility of the Russian framework for protection of non- governmental organisations (NGOs) in law and practice with the model approved by the Council of Europe. While NGOs are recognised as legal personalities and subjects to international law by the Strasbourg system and as key elements of a pluralist democracy, the Russian system does not protect them in the same manner. The author of this thesis argues that the main reason why Russia does not recognise NGOs as ‘equal partners’ is because they may be perceived as a ‘danger’ to its sovereignty and state-centred approach to international law. The thesis focuses on the ‘Law on Foreign Agents’ adopted in 2012 that regulates mainly Russian human rights NGOs. As a result of a legal analysis, the author finds that the individual rights to freedom of assembly and association and expression are not respected in Russia. The issue of protection of NGOs represents yet another landmark in the Russia-Council of Europe human rights partnership which has been since its beginning a ‘battle’ of sovereignty versus interference in the state affairs. Therefore, there still remains a question whether the Western model of individual rights is applicable to the Russian context with its socio- cultural and political specificities.
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    Freedom of expression and challenges posed by article 301 within Turkish context
    ( 2008) Ozvardar, Kivanc ; Pace, Vincent
    Background: Pointing out the freedom of expression as essential component of the pluralist, tolerant and genuine society, the study analyzes its philosophical ground and justifications for its restrictions as an unlimited freedom as well. The sine qua non character of freedom of expression, illustrated by starting its definition as a notion is examined in particular European Court of Human Rights showing that Article 10 of the Convention that protects this right, is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend even basic values of a democratic society. Results: Setting the theoretical framework of the freedom of expression with examples from European case law, right to critics is examined focusing specific case of Article 301 of Turkish Penal Code. First, the inclusiveness of freedom of expression especially criticisms for a progressive in a democratic society is summarized illustrating shortcomings resulted by the highly controversial article. Secondly, with a comparative analysis of different voices both inside and outside Turkey, results indicates the necessity of a comprehensive approach in order to meet the requirements of pressing social need and proportionality of legitimate aim pursued for proper justification of restrictions. Conclusions: A practical analysis of the extent of freedom of expression and its derogations in case of article 301 of Turkey, backed by political, historical and social analysis of the specific context, insufficient justification of its restrictions play significant role in promulgation of challenges, divisions and social affiliations illustrate that a comprehensive vista both inside and outside, past and future is crucial.
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    Implementation of the European Court of Human Rights judgments in the Armenian legal system
    ( 2013) Safaryan, Tigran ; Jacqué, Jean-Paul
    The Convention for the Protection of Human Rights and Fundamental Freedoms can be implemented in national legal systems only by prompt and effective implementation of the European Court of Human Right’s judgments. The need for effective implementation of the European Court’s judgments is one of actively discussed topics within the Council of Europe. It is extensively linked with the need to increase the efficiency of the European Court and the principal of subsidiarity. In this thesis the effectiveness of measures taken by Armenian authorities is examined. This research approaches the issue of effective implementation as a vital for Convention system. Indeed, if the judgments are not implemented in national legal systems, the authority and efficiency of the whole Convention system is at stake. It is argued that Armenia being relatively “new” member to the Council of Europe, experienced some gap with the European standards. Nonetheless, in last decade Armenia took some measures in order to create an effective system of implementation of the Court’s judgments and in some cases applied proactive approach by making conclusions from judgments against other member states. Nevertheless, it is concluded that there is a room for improvements and Armenian authorities should activate their efforts.
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    Indigenous justice systems in Guatemala: barrier or opportunity for women?
    ( 2010) Eger, Kristina ; Munro, Vanessa
    Indigenous justice systems have often been criticised for violating women’s rights, yet it is not clear how justice systems in communities with changing power structures and influences from both ladino and indigenous migrants treat women’s conflicts. Based on interview material from a qualitative field study in three communities in Guatemala, this study aims to answer the question to what extent and in what way the community justice systems respond to rural and indigenous women’s conflicts. Women in the research area faced particular conflicts, especially domestic violence and violations of their property rights, yet these were rarely resolved in their communities. This was partly due to women’s reluctance to report their problems to community authorities because of a lack of information, confidence, confidentiality, fear of reprisal and alternative forums. Yet, even when women reported their conflicts, these were often rejected or not resolved satisfactorily in community reunions because of discrimination, power imbalances, lack of community support and ineffective agreements. From these findings this study concludes that women in the investigated communities face additional barriers to reporting and treating their conflicts than women in traditional indigenous communities. Human rights reforms have made minor improvements to women’s rights, but have failed to create a human rights consciousness.
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    La justice a l'epreuve de la protection effective des droits de l'homme dans le pays post-conflit: RD Congo et Rwanda, 1994-2008
    ( 2008) Munazi Muhimanyi, Cyprien ; Frouville, Olivier : de
    La RDC et le Rwanda ont connu des conflits meurtriers donnant lieu à une crise humanitaire affreuse. Le règlement des différends après le conflit pose des difficultés. Au niveau législatif, il y a peu d’engagement et de volonté politique. Cela entraîne des lacunes dans l’administration de la justice. Malgré les réformes législatives entreprises, les violations des droits humains continuent, les faiblesses du système de justice persistent et exacerbent l’insécurité juridique. Face aux facteurs empêchant un fonctionnement harmonieux du système judiciaire méritent une attention, les Etats doivent assumer leurs responsabilités, voire coopérer afin d’assurer la mise en oeuvre des droits humains. Notre étude portera sur la justice à l'épreuve de la protection effective des droits humains dans les pays post-conflit: RDCongo et Rwanda. Des questions simples suivantes permettront de réaliser la présente étude : Quels sont les problèmes qui affectent leurs systèmes de justice? Comment affrontent-ils ces problèmes ? Quid des mécanismes juridictionnels en place? Peut-on se satisfaire de l’état actuel de la protection des droits humains dans ces pays? Ce travail débouchera sur la sauvegarde du droit à la protection des droits humains de l’individu en tant que tel par le renforcement des mécanismes juridictionnels et le démarrage d’un organe spécial indépendant.
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    NGOs in Russia and external actors : comparing the strategies of the Council of Europe and the European Union in promoting non-state actors
    ( 2008) Bardou, Eve-Emmanuelle ; Heller, Regina ; Kahl, Martin
    The policy of the CoE and the EU includes a large range of means to promote human rights (HR) and to support NGOs in Russia. The question for CoE and EU policymakers is no longer whether, but how to achieve NGO involvement by bringing changes in Russia’s HR behaviour. This research represents a case study on a new Russian legislation on NGOs from 2006 that aims at restricting the activities of these civil society actors. This analysis argues that current CoE and EU policies have a limited and short-term effect on the development of the Russian NGO community. The two institutions need to concentrate on improving the adequacy of their strategies to foster Russia to respect HR. This paper offers recommendations to adapt their strategies considering the current context of the CoE and the EU relation with Russia. This analysis shows that pressurising the state by a top-down approach should be privileged when the environment for NGOs is too restrictive. However, it seems more adequate to combine this approach with a bottom-up strategy.
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    No state no problem? Alternative mechanisms to the state-centred approach of protecting and promoting human rights : the case of Somalia as a failed state
    ( 2008) Bahta, Tewelde ; Kinzelbach, Katrin
    The thesis challenges the traditional state-centred approach of human rights protection and proposes that it is ill-suited for failed States. This hypothesis is tested through a case study on Somalia. The study distinguishes between three Somali territories which each display special cultural, legal and political features: (1) rural Somalia, (2) urban cities of Southern Somalia, including the capital Mogadishu, and (3) the de facto administrations of Puntland and Somaliland. It is argued that three different yet interrelated alternatives exist which suit these three territories respectively. For rural Somalia customary clan law, the Xeer, may be used to substitute the formal treaty based or statutory mechanisms. In the urban areas of Southern Somalia, Islamic law and its Sharia Courts have proven to be potentially capable of maintaining rule and order, thereby facilitating human rights protection. The de facto regimes of Puntland and Somaliland may be used as a third alternative in the absence of any functioning central authority. After analyzing strengths and weaknesses of the alternative mechanisms, the author concludes that future international initiatives should be based on these three alternatives rather than adopting a one-fits-all mechanism that prioritizes the installation of a central government over effective human rights protection.
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    Shaping the new pathways to justice : is CEDAW behind the curve?
    ( 2016) Percival, Olivia ; Brink, Marjolein : Van den
    The increasing recognition that justice systems the world over are invariably “plural” poses challenges to both international development practitioners and human rights actors. A particular challenge is how to ensure that women, as a particularly vulnerable and marginalised group, can access justice in culturally diverse, legally plural settings, and how to ensure that the justice they access upholds their human rights. The publication by the CEDAW Committee of a general recommendation on access to justice in summer 2015, and its particular proposals in relation to plural justice systems, serve as my impetus for examining these issues afresh. This study seeks to draw conclusions about the different ways in which the CEDAW Committee and other human rights bodies conceptualise justice when they discuss plural justice systems in their authoritative statements, and whether this impacts on the way in which these bodies engage with plural justice systems. It takes legal empowerment, an innovative method for promoting women’s access to justice, as a particular focus point for gaining insight into the CEDAW Committee’s approach. The aim of the study is to understand whether, in the context of plural justice systems, the CEDAW Committee is somewhat behind the curve in terms of exploring and endorsing new pathways for pursing justice.
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    Towards justice in Rwanda
    ( 2004) McGowan-Smyth, Margaret Christine ; Fischer, Horst
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    Turning a blind eye: domestic prosecution of war crimes, crimes against humanity and genocide : (case study of Croatia)
    ( 2008) Petkovic, Andrea ; Schmidt, Roland
    After acquiring the status of European Union candidate country in June 2004, Croatia started its negotiation process in early 2006. Among chief issues of importance for the completion of the accession process is the prosecution of the perpetrators of war crimes, crimes against humanity and genocide in an efficient and unbiased way. Based on the analysis of nine cases against members of Croatian forces and civilian authorities before the Croatian County Courts in the period from 2005-2008, the present paper will explore how far the Croatian judiciary and the Prosecutor's Office have been willing and able to prosecute these crimes and deal with them in proceedings which are in accordance with the international law. Even though some improvements have been made over the course of years, this paper will argue that these trials were not conducted in such a manner as to bring perpetrators to justice and therefore have not contributed to the process of dealing with the past. This paper will conclude that these Courts have yet to accomplish internationally acceptable standards for the prosecution of perpetrators of war crimes, crimes against humanity and genocide.
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