Papers by Elżbieta Morawska
Europejski Przegląd Prawa i Stosunków Międzynarodowych, 2024
Artykuł podzielony jest na dwie części. Pierwsza obejmuje okres Ligi Narodów i najwcześniejsze pr... more Artykuł podzielony jest na dwie części. Pierwsza obejmuje okres Ligi Narodów i najwcześniejsze próby wdrożenia idei przesiedleń jako trwałego rozwiązania trudnej sytuacji uchodźców; druga dotyczy inicjatyw mających na celu rozwiązanie problemu uchodźców i wysiedleńców po zakończeniu drugiej wojny światowej.
Zeszyty Prawnicze , 2024
Russia has been conducting military action against Ukraine since 24 February 2022, in violation o... more Russia has been conducting military action against Ukraine since 24 February 2022, in violation of the prohibition on the threat or use of violence against the territorial integrity or independence of any state, which is one of the fundamental principles of modern international law. The Russian aggression has resulted in a sharp increase in migratory pressure on
the EU. As a result, the Union launched a special temporary protection procedure
for the first time in its history. As temporary protection is one of the instruments
of the Common European Asylum System, this article begins with an analysis
of its nature within EU asylum policy. The article’s next research question and
objective relates directly to the EU's response to the Russian act of aggression. They are relevant for clarifying the political context of the activation of temporary protection and, simultaneously, establishing the circumstances necessary for the activation of temporary protection in the light of Council Directive 2001/55/EC. This Directive and Council Implementing Decision 2022/382 determine the normative construction of the temporary protection 2022. These elements are its duration, the categories of beneficiaries, and the beneficiaries’ entitlements, which result in obligations for Member States. The analysis of these issues will
determine to what extent temporary protection is a viable and effective measure of international protection for displaced persons from Ukraine.
Muzyka : kwartalnik Instytutu Sztuki Polskiej Akademii Nauk, 1993
order
... edu.pl. Abstract: Typical of the human rights law doctrine is considerable definitional confu... more ... edu.pl. Abstract: Typical of the human rights law doctrine is considerable definitional confusion and terminological diversity, fully confirmed by the Charter of Fundamental Rights of the EU and Poland's Consititution. Despite some ...
r e c e n z j a dr hab. Małgorzata Wąsek-Wiaderek r e d a k c j a j ę z y k o w a Zuzanna Guty / ... more r e c e n z j a dr hab. Małgorzata Wąsek-Wiaderek r e d a k c j a j ę z y k o w a Zuzanna Guty / wydawnictwoepisteme.pl r e d a k c j a t e c h n i c z n a Ilona Kalamon / wydawnictwoepisteme.pl s k ł a d , ł a m a n i e Wiaczesław Krysztal / studioformat.pl p r o j e k t o k ł a d k i Szymon Strużyński / studioformat.pl
r e c e n z j a dr hab. Małgorzata Wąsek-Wiaderek r e d a k c j a j ę z y k o w a Zuzanna Guty / ... more r e c e n z j a dr hab. Małgorzata Wąsek-Wiaderek r e d a k c j a j ę z y k o w a Zuzanna Guty / wydawnictwoepisteme.pl r e d a k c j a t e c h n i c z n a Ilona Kalamon / wydawnictwoepisteme.pl s k ł a d , ł a m a n i e Wiaczesław Krysztal / studioformat.pl p r o j e k t o k ł a d k i Szymon Strużyński / studioformat.pl
Polish Yearbook of International Law, 2019
The purpose of this article is to determine the relationship between the principles of subsidiari... more The purpose of this article is to determine the relationship between the principles of subsidiarity and effectiveness and an effective remedy for the excessive length of proceedings within the legal order of the European Convention on Human Rights. The article assumes that these key principles of the ECHR's legal order have an impact on such a remedy, both in the normative and practical dimensions. This assumption has helped explain many aspects of the Strasbourg case law regarding this remedy. Concerning the relationship of this remedy with the principle of subsidiarity, it raises issues such as: the "reinforcing" of Art. 6 § 1; the "close affinity" of Arts. 13 and 35 § 1; and the arguability test. In turn, through the prism of the principle of effectiveness, the reasonableness criterion and the requirement of diligence in the proceedings are presented, followed by the obligations of States to prevent lengthiness of proceedings and the obligations concerning adequate and sufficient redress for such an excessive length of proceedings. The analysis shows that an effective remedy with respect to the excessive length of proceedings is not a definitive normative item, as the Court consistently adds new elements to its complex structure, taking into account complaints regarding the law and practice of States Parties in the prevention of and compensation for proceedings of an excessive length.
Zeszyty Prawnicze, Nov 26, 2020
Espaço Jurídico, Oct 21, 2019
The aim of this article is pointing out to the process of redefining the nature, subject and stru... more The aim of this article is pointing out to the process of redefining the nature, subject and structure of the obligations of States Parties to the European Convention on Human Rights in the field of the right to life (Article 2 of the Convention). The main author of the above redefinition is the European Court of Human Rights, hence it takes place during the interpretation and application of Art. 2 the Convention. As a result, in addition to primary negative obligations, the positive obligations are imposed on States. Strasbourg case law identifies a variety of positive measures that States are obliged to undertake in order to fulfill these positive obligations, including appropriate preventive measures. They are to prevent the materialisation of risks to the right to life, both in the case of threats from private individuals, as well as during the use of lethal force by State officials. The Court has not settled the precise catalog of these measures and the conditions for taking them. They are formulated case by case and are constantly being expanded. It can therefore be said that they are still in statu nascendi. Keywords: European Convention on Human Rights. European Court of Human Rights. Strasbourg case law. Right to life, positive obligation to protect life, operational preventive measures. Resumo: O objetivo deste artigo é apontar para o processo de redefinição da natureza, sujeito e estrutura das obrigações dos Estados Partes da Convenção Europeia de Direitos Humanos no campo do direito à vida (artigo 2 da Convenção). O principal autor da redefinição acima é o Tribunal Europeu de Direitos Humanos, portanto, ocorre durante a interpretação e aplicação do art. 2 a Convenção. Como resultado, além das obrigações negativas primárias, as obrigações positivas são impostas aos Estados. A jurisprudência de Estrasburgo identifica uma variedade de medidas positivas que os Estados são obrigados a adotar para cumprir essas obrigações positivas, incluindo medidas preventivas apropriadas. Eles devem impedir a materialização dos riscos ao direito à vida, tanto no caso de ameaças de indivíduos particulares quanto no uso da força letal por funcionários do Estado. O Tribunal não estabeleceu o catálogo preciso dessas medidas e as condições para adotá-las. Eles são formulados caso a caso e estão sendo constantemente expandidos. Portanto, pode-se dizer que eles ainda estão in status nascendi.
Espaço Jurídico, Dec 20, 2016
The complexity indicated in the title of this paper does not refer purely to the internal structu... more The complexity indicated in the title of this paper does not refer purely to the internal structure of the prohibition of torture, but also to the obligations of States party to the ECHR that are tied to this prohibition. This is because it is not restricted to negative obligations understood as a duty on the part of the State to abstain from certain interferences by the public authorities and which was the fundamental purpose of the ECHR and as such was entered explicit into the normative structure of the freedoms and rights defined in the ECHR , but embraces-firstly-positive obligations which result in a command to take measures for the purpose of ensuring freedom from the said torture for persons under the jurisdiction of States that are party to the ECHR, both in horizontal and vertical relations, and-secondly-a procedural obligations which, year by year, is achieving an ever more autonomous position among the types of commitment resulting from the ECHR for States and the essence of which is the effective clarification of circumstances in the violation of the prohibition of torture.
Polski Przegląd Stosunków Międzynarodowych, Apr 15, 2018
Espaço Jurídico Journal of Law [EJJL], 2019
The aim of this article is pointing out to the process of redefining the nature, subject and stru... more The aim of this article is pointing out to the process of redefining the nature, subject and structure of the obligations of States Parties to the European Convention on Human Rights in the field of the right to life (Article 2 of the Convention). The main author of the above redefinition is the European Court of Human Rights, hence it takes place during the interpretation and application of Art. 2 the Convention. As a result, in addition to primary negative obligations, the positive obligations are imposed on States. Strasbourg case law identifies a variety of positive measures that States are obliged to undertake in order to fulfill these positive obligations, including appropriate preventive measures. They are to prevent the materialisation of risks to the right to life, both in the case of threats from private individuals, as well as during the use of lethal force by State officials. The Court has not settled the precise catalog of these measures and the conditions for taking th...
Espaço Jurídico Journal of Law [EJJL] - Qualis A2, 2016
The complexity indicated in the title of this paper does not refer purely to the internal structu... more The complexity indicated in the title of this paper does not refer purely to the internal structure of the prohibition of torture, but also to the obligations of States party to the ECHR that are tied to this prohibition. This is because it is not restricted to negative obligations understood as a duty on the part of the State to abstain from certain interferences by the public authorities and which was the fundamental purpose of the ECHR and as such was entered explicit into the normative structure of the freedoms and rights defined in the ECHR , but embraces-firstly-positive obligations which result in a command to take measures for the purpose of ensuring freedom from the said torture for persons under the jurisdiction of States that are party to the ECHR, both in horizontal and vertical relations, and-secondly-a procedural obligations which, year by year, is achieving an ever more autonomous position among the types of commitment resulting from the ECHR for States and the essence of which is the effective clarification of circumstances in the violation of the prohibition of torture.
The aim of this article is pointing out to the process of redefining the nature, subject and stru... more The aim of this article is pointing out to the process of redefining the nature, subject and structure of the obligations of States Parties to the European Convention on Human Rights in the field of the right to life (Article 2 of the Convention). The main author of the above redefinition is the European Court of Human Rights, hence it takes place during the interpretation and application of Art. 2 the Convention. As a result, in addition to primary negative obligations, the positive obligations are imposed on States. Strasbourg case law identifies a variety of positive measures that States are obliged to undertake in order to fulfill these positive obligations, including appropriate preventive measures. They are to prevent the materialisation of risks to the right to life, both in the case of threats from private individuals, as well as during the use of lethal force by State officials. The Court has not settled the precise catalog of these measures and the conditions for taking th...
PRAWA CZŁOWIEKA I PRAWO MIĘDZYNARODOWE
Over the past few years, the migration related problems have been increasing. This is a trend tha... more Over the past few years, the migration related problems have been increasing. This is a trend that affects not only individual countries or geographical regions but is rather a global trend. There are a number of factors both in Europe and in the world that cause the movement of people fleeing from the threat to their lives. This is especially evident in connection with Russia’s aggression against Ukraine in 2022. The issue of the protection of aliens in connection with migration is a serious challenge for the international community. This issue is particularly relevant especially in the context of international human rights law. The aim of the research concerns an in-depth analysis of the phenomena that occur today in international human rights law and in the European regional system of their protection. This is especially important in the context of aliens and migrants coming to Europe in connection with the ongoing armed conflict. In view of the events and problems facing Europe,...
The European Court of Human Rights (ECHtR) uses several criteria/factors in determining the param... more The European Court of Human Rights (ECHtR) uses several criteria/factors in determining the parameters of the margin of appreciation as to the definition or interpretation of a specific right or freedom defined in the European Convention on Human Rights. One of them is a European consensus among the state parties to the Convention. The way the ECHtR has implemented the methodology of finding this consensus has been clearly problematic. This applies especially to ECHtR's evaluation of the discriminatory practice of states under Article 14. Above all, it is unclear under what circumstances the ECHtR takes into consideration the practice of states. In addition, it is also unclear how it selects the comparative group of states and defines the specific threshold necessary for this consensus. It should be noted that the above considerations and remarks are fully justified in the light of the ECHtR's case law concerning the issues of adoption of children by homosexual persons (same...
Przedmiotowy komentarz składa się z pięciu zasadniczych części. Pierwszą z nich jest wprowadzenie... more Przedmiotowy komentarz składa się z pięciu zasadniczych części. Pierwszą z nich jest wprowadzenie, zawierające podstawowe informacje odnośnie do strasburskich spraw wiodących w zakresie odbywania kary pozbawienia wolności. Drugą część stanowi prezentacja okoliczności faktycznych i prawnych sprawy Petukhov v. Ukraine (No. 2). Następna część dotyczy pierwszego etapu postępowania przed ETPC, a więc warunków dopuszczalności, przy czym obejmuje ona dopuszczalność podniesionych przez skarżącego zarzutów na gruncie art. 3 EKPC oraz zarzutów na gruncie art. 8 EKPC. Ustalenia odnośnie do dopuszczalności pozwoliły przejść do przedstawienia głównych ustaleń, sformułowanych na etapie merytorycznego badania skargi. Ostania część komentarza to uwagi . Można podzielić je na trzy zasadnicze grupy. Pierwsza grupa uwag wiąże się wyraźnie z sprawą Petukhov. Są to więc spostrzeżenia dotyczące zobowiązań pozytywnych w związku z prawami więźniów do ochrony zdrowia, następnie uznania problematyki dożywotn...
In the light of Article 2(2) of the Convention, the threat to the right to life posed by the use ... more In the light of Article 2(2) of the Convention, the threat to the right to life posed by the use of lethal force by State agents (lethal force) should be taken seriously in particular. It provides that deprivation of life shall not be considered contrary to this article if it results from the use of force which is no more than absolutely necessary to achieve the three objectives set out therein. However, in the Court's view, those provisions do not, in any event, entitle the State to use force with the intention of killing. This means that Article 2 of the Convention requires a State to refrain from intentional and unlawful taking of life. The Court established the conditions for the use of lethal force in the case of McCann and Others v. the United Kingdom of 1995. In view of the criterion of absolute necessity, the circumstances in which the use of lethal force may occur must be interpreted restrictively and evaluated with the utmost rigour, taking account of all the circumsta...
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Papers by Elżbieta Morawska
the EU. As a result, the Union launched a special temporary protection procedure
for the first time in its history. As temporary protection is one of the instruments
of the Common European Asylum System, this article begins with an analysis
of its nature within EU asylum policy. The article’s next research question and
objective relates directly to the EU's response to the Russian act of aggression. They are relevant for clarifying the political context of the activation of temporary protection and, simultaneously, establishing the circumstances necessary for the activation of temporary protection in the light of Council Directive 2001/55/EC. This Directive and Council Implementing Decision 2022/382 determine the normative construction of the temporary protection 2022. These elements are its duration, the categories of beneficiaries, and the beneficiaries’ entitlements, which result in obligations for Member States. The analysis of these issues will
determine to what extent temporary protection is a viable and effective measure of international protection for displaced persons from Ukraine.
the EU. As a result, the Union launched a special temporary protection procedure
for the first time in its history. As temporary protection is one of the instruments
of the Common European Asylum System, this article begins with an analysis
of its nature within EU asylum policy. The article’s next research question and
objective relates directly to the EU's response to the Russian act of aggression. They are relevant for clarifying the political context of the activation of temporary protection and, simultaneously, establishing the circumstances necessary for the activation of temporary protection in the light of Council Directive 2001/55/EC. This Directive and Council Implementing Decision 2022/382 determine the normative construction of the temporary protection 2022. These elements are its duration, the categories of beneficiaries, and the beneficiaries’ entitlements, which result in obligations for Member States. The analysis of these issues will
determine to what extent temporary protection is a viable and effective measure of international protection for displaced persons from Ukraine.