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segunda-feira, 30 de abril de 2018

No handshake, no citizenship – but with a second wife, everything’s fine?



by JAN VON HEIN on APRIL 23, 2018

Two recent judgments of European courts have highlighted the difficulty in finding the right balance between the cultural assimilation of Muslim immigrants demanded by national laws on citizenship and the necessary degree of tolerance towards foreign laws and customs. In a widely reported decision of 11 April 2018, the French Council of State (Conseil d’Etat) ruled that a naturalisation of an Algerian-born woman could be revoked because she had refused to shake hands with a male public servant during the naturalisation ceremony. The Council evaluated her behaviour as proof that she was obviously not sufficiently assimilated to French culture in order to become a French citizen. In sharp contrast to this restrictive attitude, the High Administrative Court of Baden-Württemberg (Germany), in an earlier decision of 25 April 2017, allowed the naturalisation of a Syrian-born man to be upheld although it turned out that he had lied to German authorities about the fact that he had entered into a polygamous marriage abroad. The court argued that the appellant’s polygamous marriage as such did not amount to a violation of German public policy, which, in the context of naturalisation, is a rather narrowly phrased concept that presupposes a lack of loyalty to the German constitutional order. From a traditional choice of law point of view, however, there are rather convincing arguments for assuming a violation of German public policy: the husband’s first wife was a German national, and both spouses had their habitual residence in Germany, thus creating a very strong connection with the German legal order and its constitutional values on equality of the sexes. The case is now pending before the German Supreme Administrative Court in Leipzig.

Disponível em: <http://conflictoflaws.net>. Acesso em: 27 abr. 2018.

quarta-feira, 11 de abril de 2018

The Authority of Universal Jurisdiction

33 Pages Posted: 6 Apr 2018 Last revised: 9 Apr 2018


London School of Economics - Law Department
Date Written: March 28, 2018

Abstract

The aim of this article is to flesh out the implications of seeing universal jurisdiction as a claim to authority. While the idea that jurisdiction is an exercise of authority may seem obvious, the article invites attention to the ‘claim’ inherent within it, particularly where the exercise of jurisdiction intrudes upon or displaces competing claims. Legal scholars and practitioners tend to focus on the legal source of authority to exercise universal jurisdiction. The consequence is a tendency to think in binary terms: a court either has jurisdiction, in which case the matter will proceed (without further attention to the question of jurisdiction), or it does not, in which case the whole matter is at an end. Jurisdictional thinking invites attention to the need for those asserting such a claim to take responsibility for these claims to authority, encouraging responsiveness to the normative communities such claims put into relation and the potential need to rethink conventional modes of operation. The article proceeds in two parts. Part I examines the deficiencies in the dominant ‘legal source’ narrative on universal jurisdiction. Part II assesses the value of understanding the legal-political dimension of universal jurisdiction as a claim to authority that must be understood, and justified, with attention to its purpose and the community (or communities) it is intended to serve.

REFERÊNCIA
HOVELL, Devika. The Authority of Universal Jurisdiction (March 28, 2018). LSE Legal Studies Working Paper No. 8/2018. Disponível em: <https://ssrn.com/abstract=3151980>. Acesso em: 10 abr. 2018.

segunda-feira, 2 de abril de 2018

European Court of Human Rights: Naït-Litman v. Switzerland

Refusal by the Swiss courts to examine a compensation claim relating to alleged acts of torture in Tunisia: no violation

Press Release issued by the Registrar of the Court

In today’s Grand Chamber judgment1 in the case of Nait-Liman v. Switzerland (application no. 51357/07) the European Court of Human Rights held, by a majority (fifteen votes to two), that there had been: no violation of Article 6 § 1 (right of access to a court) of the European Convention on Human Rights.

The case concerned the refusal by the Swiss courts to examine Mr Naït-Liman’s civil claim for compensation for the non-pecuniary damage arising from acts of torture allegedly inflicted on him in Tunisia.

The Court considered, on the basis of a comparative legal study, that international law had not imposed an obligation on the Swiss authorities to open their courts with a view to ruling on the merits of Mr Naït-Liman’s compensation claim, on the basis of either universal civil jurisdiction in respect of acts of torture or a forum of necessity. It followed that the Swiss authorities had enjoyed a wide margin of appreciation in this area.

With regard to the criteria laid down by the legislature, the Court concluded that by introducing a forum of necessity with the criteria laid down in section 3 of the Federal Law on Private International Law, the Swiss legislature had not exceeded its margin of appreciation. As to the margin of appreciation of the domestic courts, the Court could perceive no arbitrary or manifestly unreasonable elements in the Federal Supreme Court’s interpretation in its judgment of 22 May 2007, by which the Federal Supreme Court dismissed Mr Naït-Liman’s appeal, holding that the Swiss courts did not have territorial jurisdiction.

The Court reiterated, however, that this conclusion did not call into question the broad consensus within the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress, nor the fact that the States were encouraged to give effect to this right.
Referências:

EUROPEAN COURT OF HUMAN RIGHTS. Case of Naït-Liman v. Switzerland. Judgment of 15 March 2018. Disponível em: <http://hudoc.echr.coe.int/eng?i=001-181789>. Acesso em 31 mar. 2018.

EUROPEAN COURT OF HUMAN RIGHTS. Case of Naït-Liman v. Switzerland (Press Release). Judgment of 15 March 2018. Disponível em: <http://hudoc.echr.coe.int/eng-press?i=003-6032091-7745565>. Acesso em 31 mar. 2018.

REQUEJO, Marta. Torture, Universal Civil Jurisdiction and Forum Necessitatis: Naït-Litman v. Switzerland before the ECtHR. Conflict of Laws .net. Disponível em: <http://conflictoflaws.net/2018/universal-civil-jurisdiction-and-forum-necessitatis-before-the-ecthr/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 31 mar. 2018.