«International Justice»
Issue №2 (34) 2020

CONTENTS

RES JUDICATA

COVID-19 AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS 
Jeremy McBride

The article is available for free download.

This paper examines the implications for compliance with obligations under the ECHR of the responses that have been adopted by Council of Europe member States as a result of the threat posed by the spread or Coronavirus and the risk of succumbing to Covid-19. Although some member States have submitted derogations under Article in respect of a state of emergency declared by them, this has not been the response of others even where an emergency has been declared.

 

JOURNALIST’S ACTIVITIES IN THE DIGITAL AGE: JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE CASE OF MAGYAR YETI V. HUNGARY OF 4 DECEMBER 2018 (APPLICATION NO. 11257/16)
Alena Denisova

This paper examines the judgment of the European Court of Human Rights on the Magyar Yeti v. Hungary case of December 4, 2018 (application no.11257/16) concerning the use of hyperlinks in the media. The “Magyar Yeti” complaint was based on a litigation over media coverage of a national conflict and the positions of its parties. The ECtHR found that “Magyar Yeti” acted in good faith, not expressing its own attitude to the contents of the audio recording in the hyperlink. Thus, the national courts violated the balance between the right to protection of reputation and the freedom of expression and, consequently, violated article 10 of the European Convention on Human Rights. Thus, within the framework of this dispute the ECtHR started formulating a completely new approach to the regulation of activity of journalists in the digital age through legal assessment of the digital tools, which journalists often use in their professional activities. In particular, the ECtHR defined hyperlinks as a new tool in journalism, which differs from traditional ways of presenting information. Finally, this judgment focused on the issue of using hypertext (hyperlinks) by journalists in their publications; the ethical side of the professional activities of journalists on the Internet; the responsibility of journalists for the use of the Internet as a tool of communication and the role of the Internet for the realization of citizens’ information rights. Based on the examination of the judgment of the ECtHR, the author looks into the issue of legal guarantees to journalists in the digital age.

 

CONDITIONS OF DETENTION: A NEW RUSSIAN REMEDY AND THE PRACTICE IN EUROPEAN COUNTRIES
DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE CASE OF SHMELEV AND OTHERS V. RUSSIA
Maria Filatova, Aleksandra Butko

The article is available for free download.

On 17 March 2020 the European Court of Human Rights delivered a decision on admissibility of the complaint in the case of Shmelev and Others v. Russia, in which the Court provided an assessment of a new national remedy, available for the protection from inhuman and degrading conditions of detention. This new mechanism was introduced by a federal law in January of 2020 and provides for a possibility to apply for a compensation for poor conditions of detention. Although the Russian courts have not had enough time to establish case-law on the remedy application, the European Court of Human Rights recognized the need to exhaust this remedy before lodging an application with the Strasbourg Court.

 

“A BITTER AFTERTASTE”: A COMMENTARY TO THE ICC DECISIONS ON THE SITUATION IN AFGHANISTAN OF APRIL 12, 2019 AND MARCH 5, 2020
Kristina Russkikh

After years of preliminary examination of the situation in the Islamic Republic of Afghanistan, the International Criminal Court on April 12, 2019 finally issued a decision, which, brought however more disappointment than contentment. For the first time in the Court’s history, the Pre-Trial Chamber rejected the Prosecutor’s request to open a full-scale investigation of the situation, even though the acts committed were found to be sufficiently serious and the admissibility requirements were also met. The Court’s arguments turned out to be more political than legal: the lack of cooperation from the state, the long while since the crimes were committed, and the ICC’s limited resources. At the same time, since the Prosecutor requested to start an investigation, the US government has bluntly opposed it, threatening the Court and its employees with various types of sanctions

 

EX OFFICIO

EUROPEAN COURT OF HUMAN RIGHTS: REVIEW OF THE JUDGMENT OF 4 FEBRUARY 2020 (SECTION III) IN THE CASE OF KRUGLOV AND OTHERS V. RUSSIA (APPLICATION NO. 11264/04 AND 15 OTHERS)

 

JUSTICIA

THE STATUS OF RESERVATIONS IN THE JUDGMENTS OF INTERNATIONAL COURTS
Aleхey Ispolinov

The present article assessed the regime of reservations to the multilateral treaties established by the Vienna Convention of 1969 on the law of treaties based on the Advisory Opinion of 1951 of the International Court of Justice in Reservation case. This regime introduced the horizontal individual control of the states-parties to the international treaty over the compatibility of reservations to the object and purposes of the treaty in question. Nevertheless, current practice reveals that states’ failure to be involved in this mission especially in the human rights agreements might threaten the effectiveness and the very integrity of these treaties. Such a situation of laissez-faire appeared to no longer be acceptable to the regional courts of human rights (European Court of Human Rights and Inter-American Court of Human Rights) and to the controlling bodies created under the auspice of the United Nations in the framework of the universal human rights conventions. This paper reveals that the regional human rights courts and the UN quasi-judicial bodies took a position that the states lost the right to assess the validity of the reservations to the treaty in case of creation of a special controlling authority under this treaty. Moreover, the courts and quasi-judicial bodies expressed the opinion that an invalid reservation shall be severed from the act of ratification in a sense that the state making a reservation shall be bound by the entire agreement without benefiting from the reservation in question.

 

PROVISIONAL MEASURES IN THE JURISPRUDENCE OF THE INTERNATIONAL COURT OF JUSTICE
Sofia Pimenova

The present article examines the use of provisional measures by the International Court of Justice for the entire period of its activity, as well as the jurisprudence of its predecessor – the Permanent Court of International Justice at the League of Nations. The author highlights the criteria elaborated and used by the International Court of Justice while deciding whether to order provisional measures in a particular case. Thus, the International Court of Justice has repeatedly indicated in orders that it may grant provisional measures under article 41 of the ICJ Statute subject to the following conditions: prima facie jurisdiction over the substance of the dispute; risk of irreparable harm to the rights of the applicant; urgency; a link between requested provisional measures and the rights for which the applicant seeks protection. Also, the author looks at an additional criterion – a plausibility test which appeared in the jurisprudence of the International Court of Justice in 2009.

 

JUDICIAL ACTIVISM AND ITS ROLE IN CASE-LAW OF INTERNATIONAL COURTS
Ekaterina Diyachenko

Judicial activism as a legal phenomenon is one of the topical subjects discussed in the doctrine. While this term found origin in the analysis of the US Supreme Court’s legal findings, it got widespread in the European legal doctrine in assessing the development of the case law of the Court of Justice of the European Union and the ECtHR and has become an integral part of the characteristics of international courts. This tendency has not spared the EAEU Court. The present article is devoted to the analysis of judicial activism as a phenomenon from theoretical perspectives and the research of its influence on the establishment of legal positions by international courts. To this aim, the author analyses the existing doctrinal approaches to judicial activism and self-restraint as opposite approaches to the interpretation and application of legal norms. The author concludes that judicial activism as the policy of a judicial body being exercised within the limits of its competence is devoted to overcoming the lacunae in law and is inherent to the nature of the judicial authority

 

JUS CRIMINALE

THE FIGHT AGAINST IMPUNITY IN KOSOVO: ONE TERRITORY – TWO “PARALLEL” REALITIES?
Andrey Antonov, Oleksandr Yevsieiev

The article is available for free download.

The article discusses the activities of Serbian courts and courts of the unrecognized “Republic of Kosovo” in connection with the international, particularly war crimes committed in the Autonomous Region in the late 1990s and early 2000s. The exclusively positive role played by the International Tribunal for the Former Yugoslavia in overcoming the impunity of the perpetrators of these atrocities is emphasized. The creation of appropriate judicial structures for the investigation of the core crimes within the framework of the Serbian and Kosovo judicial systems is assessed as a logical result of the “Completion Strategy” for the activities of the designated tribunal, approved by the UN Security Council. The “dualism” of the earlier unified judiciary of Serbia, which has been outlined, including in the field of overcoming the “gap of impunity,” is stated. As a result, a paradoxical situation is described when in relation with the crimes committed on the territory of Kosovo at the end of the XX century, both the official Serbian courts and the courts of the unrecognized Republic have got almost the same jurisdiction

International Justice • Issue№2 (34) 2020