Livres sur le sujet « Article 47 de la Charte »

This ambitious, innovative project examines the principle of effective judicial protection in EU law over two volumes. The principle of effective judicial protection is a cornerstone of the EU’s judicial system and is re-affirmed in Article 47 of the Charter of Fundamental Rights of the European Union. Since the 1980s the Court of Justice has used this principle to shape EU and national procedural rules; more recently, the principle has acquired a central role in the EU constitutional structure. In this second volume, an expert team explores how national courts have applied Article 47 and the principle of effective judicial protection. Through a comparative analysis, the book assesses the level of convergence (or divergence) of the national approaches. The questionnaire methodology allows for an accurate charting of national courts’ application of the EU provisions at the domestic level. Given the wide application of Article 47, the volume will provide a comprehensive analysis of the national case law to EU constitutional scholars, comparative lawyers and civil servants both at the national and EU level.

This chapter comments on Article 47 of the Rome Statute of the International Criminal Court. Article 47 sets out the disciplinary measures for elected officials of the Court, that is, judges, the Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who have committed misconduct of a less serious nature than that set out in article 46. Disciplinary measures that may be imposed consist of a reprimand or a pecuniary sanction, not to exceed six months of the salary of the person concerned. The procedural guarantees governing removal to office, pursuant to article 46 of the Statute, are also applicable in the case of disciplinary proceedings.

This chapter comments on Article 40 of the Rome Statute of the International Criminal Court. Article 40 imposes norms aimed at ensuring that judges are not exposed to conflicting obligations or loyalties. The article declares that ‘judges shall be independent in the performance of their functions’. Independence is secured through other provisions of the Statute, including articles 36, 41, 46, 47, and 49. Judges are prohibited from engaging in activities ‘likely to interfere with their judicial functions or to affect confidence in their independence’. Judges who are required to serve full-time at the Court are not to ‘engage in any other occupation of a professional nature’. Disputes concerning activities of judges outside the Court are to be decided by an absolute majority of the judges.

This chapter considers Article 47 of the Vienna Convention on Diplomatic Relations which deals with non-discrimination and reciprocity. The Article states that in the application of the provisions of the present Convention, the receiving State shall not discriminate as between States. However, discrimination shall not be regarded as taking place: (a) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State; (b) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention. Article 47 lays down a general duty of non-discrimination before setting out circumstances in which discrimination is deemed not to take place. The emphasis is therefore placed on non-discrimination and on the application in each State Party of a uniform regime for diplomatic missions.

The rights to asylum and to protection against refoulement, as per Chapters 8-9, entail both substantive and procedural components. This chapter scrutinizes the remedies and procedural safeguards attached to them, paying particular attention to the most relevant international provisions of refugee law and human rights protection. Article 16 CSR51; Articles 14(1), 2(3) and 7 ICCPR; Article 3 CAT; as well as Articles 6 and 13 ECHR are all scrutinized with the purpose of determining the content of the right to effective judicial protection in Article 47 CFR. On the basis of the ‘cumulative standards’ approach, it is concluded that fair trial and effective remedy guarantees are applicable in the context of pre-border controls, including the right to a hearing in person and to an appeal ‘with automatic suspensive effect’. In light of this, it is argued that inherent in a claim to international protection or in a plea of non-refoulement is an entitlement to provisional admission to the territory of the intercepting Member State for the purpose of such procedures as may be necessary to guarantee the effectiveness of the rights that protection seekers derive from EU law.

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines the application of EU law by national courts and the way in which the CJEU controls national remedies for breach of EU law. Article 19 of the Treaty on European Union contains a new clause added by the Lisbon Treaty, which specifies that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Article 47 of the Charter of Fundamental Rights provides that ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article’. However, beyond these broad new provisions, EU law does not lay down any general scheme of substantive or procedural law governing remedies for its enforcement. The European Court of Justice has responded to the lack of a harmonized system of EU remedies by requiring national courts, in certain cases, to make available a particular type of remedy (e.g., restitution or interim relief), regardless of whether this would be available under national law.

This chapter comments on Article 122 of the Rome Statute of the International Criminal Court. Article 122 provides full and exhaustive list of provisions of the Statute ‘which are of an exclusively institutional nature’. These consist of the service of judges (art. 35), criteria for the section of judges (art. 36(8)), terms of judges (art. 36(9)), judicial vacancies (art. 37), the Presidency (art. 38), organization of Chambers, with the exception of the requirement that Pre-Trial and Trial Chambers be composed predominantly of judges with criminal trial experience (art. 39(1), first two sentences), composition of Chambers (art. 39(2), (4)), election of the Prosecutor and Deputy Prosecutors (art. 42(4)), independence and recusal of the Prosecutor and Deputy Prosecutors (art. 42(5)-(8)), advisers to the Prosecutor (art. 42(9)), appointment and qualifications of the Registrar (art. 43(2), (3)), Staff (art. 44), removal from office (art. 46), disciplinary measures (art. 47), and salaries, allowances, and expenses (art. 49).

This chapter assesses the implementation of the law of the sea in the Indian Ocean. It begins by providing a definition and general description of the Indian Ocean. It then discusses maritime zones and boundaries and regional and subregional cooperation. The practice of Indian Ocean coastal States generally shows a large measure of consistency with the UN Nations Convention on the Law of the Sea (LOSC) as regards the extent of maritime zones. A considerable divergence from the LOSC exists in the case of straight baselines, whereas in the case of archipelagic baselines there is conformity to the Convention, suggesting that the numerical controls contained in Article 47 have been more effective.

This chapter focuses on key aspects of the cases brought to ICSID in its first two decades. Section I examines the ways in which successive Secretaries-General handled the registration of requests to institute proceedings and, in particular, their “screening” of such requests. Patterns in the constitution of the conciliation commissions and arbitral tribunals are traced in Section II, as are the first experiences of the Centre with the resignation and challenge of arbitrators. Section III discusses the distinctly pragmatic approaches of arbitral tribunals in this period to jurisdictional issues, especially the requirement of consent. There was controversy in the early 1980s as to the availability, in the context of an ICSID case, of court-ordered provisional measures. The controversy is reviewed in Section IV, which also looks at the first instances of arbitral provisional measures under Article 47 of the ICSID Convention. Section V examines the underlying interpretations of Article 42(1) of the Convention. Three ad hoc committee decisions rendered under Article 52 of the Convention are the subject of Section VI. Most of the few court proceedings for the enforcement of ICSID awards took place in these early years; the proceedings are reviewed in the concluding Section VII.

Hayes and Williams’ Family Law, now in its sixth edition, provides critical and case-focused discussion of the key legislation and debates affecting adults and children. The volume takes a critical approach to the subject and includes ‘talking points’ and focused ‘discussion questions’ throughout each chapter which highlight areas of debate or controversy. The introductory chapter within this edition provides a discussion of the law’s understanding of ‘family’ and the extent to which this has changed over time, a detailed overview of the meaning of private and family life within Article 8 of the ECHR, and a discussion of the Family Justice Review and subsequent developments. Part 1 of this edition, supplemented by the ‘Latest Developments’ section, outlines the most up-to-date statistics on the incidence of marriage, civil partnerships and divorce, discusses recent case law on the validity of marriage such as Hayatleh v Mofdy [2017] EWCA Civ 70 and K v K (Nullity: Bigamous Marriage) [2016] EWHC 3380 (Fam), and highlights the recent Supreme Court decision (In the Matter of an Application by Denise Brewster for Judicial Review (Northern Ireland) [2017] 1 WLR 519) on the pension rights of unmarried cohabitants. It also considers the litigation concerning the prohibition of opposite-sex civil partnership registration from the judgment of the Court of Appeal in Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81 to the important decision of the Supreme Court in R (on the application of Steinfeld and Keidan) (Application) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32. This edition also provides an in-depth discussion of the recent Supreme Court decision in Owens v Owens [2018] UKSC 41 regarding the grounds for divorce and includes discussion of Thakkar v Thakkar [2016] EWHC 2488 (Fam) on the divorce procedure. Further, this edition also considers the flurry of cases in the area of financial provision on divorce such as Waggott v Waggott [2018] EWCA Civ 722; TAB v FC (Short Marriage: Needs: Stockpiling) [2016] EWHC 3285; FF v KF [2017] EWHC 1903 (Fam); BD v FD (Financial Remedies: Needs) [2016] EWHC 594 (Fam); Juffali v Juffali [2016] EWHC 1684 (Fam); AAZ v BBZ [2016] EWHC 3234 (Fam); Scatliffe v Scatliffe [2016] UKPC 36; WM v HM [2017] EWFC 25; Hart v Hart [2017] EWCA Civ 1306; Sharp v Sharp [2017] EWCA Civ 408; Work v Gray [2017] EWCA Civ 270, and Birch v Birch [2017] UKSC 53. It also considers the recent decision of the Supreme Court in Mills v Mills [2018] UKSC 38 concerning post-divorce maintenance obligations between former partners, and the Privy Council decision in Marr v Collie [2017] UKPC 17 relating to the joint name purchase by a cohabiting couple of investment property.Part 2 focuses on child law, examining the law on parenthood and parental responsibility, including the parental child support obligation. This edition includes discussion of new case law on provision of child maintenance by way of global financial orders (AB v CD (Jurisdiction: Global Maintenance Orders)[2017] EWHC 3164), new case law and legislative/policy developments on section 54 of the Human Fertilisation and Embryology Act 2008 (parental orders transferring legal parenthood in surrogacy arrangements), and new cases on removing and restricting parental responsibility (Re A and B (Children: Restrictions on Parental Responsibility: Radicalisation and Extremism) [2016] EWFC 40 and Re B and C (Change of Names: Parental Responsibility: Evidence) [2017] EWHC 3250 (Fam)). Orders regulating the exercise of parental responsibility are also examined, and this edition updates the discussion with an account of the new Practice Direction 12J (on contact and domestic abuse), and controversial case law addressing the tension between the paramountcy of the child’s welfare and the protected interests of a parent in the context of a transgender father’s application for contact with his children (Re M (Children) [2017] EWCA Civ 2164). Part 2 also examines the issue of international child abduction, including in this edition the Supreme Court’s latest decision, on the issue of repudiatory retention (Re C (Children) [2018] UKSC 8). In the public law, this edition discusses the Supreme Court’s clarification of the nature and scope of local authority accommodation under section 20 of the Children Act 1989 (Williams v London Borough of Hackney [2018] UKSC 37). In the law of adoption, several new cases involving children who have been relinquished by parents for adoption are examined (Re JL & AO (Babies Relinquished for Adoption),[2016] EWHC 440 (Fam) and see also Re M and N (Twins: Relinquished Babies: Parentage) [2017] EWFC 31, Re TJ (Relinquished Baby: Sibling Contact) [2017] EWFC 6, and Re RA (Baby Relinquished for Adoption: Final Hearing)) [2016] EWFC 47).