Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment?
In this paper, the authors rely on the results of scientific research based on which they concluded that although there are notable differences between the Croatian national regulation of immission protection and the one provided by the European Convention for the Protection of Human Rights and Fund...
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| Format: | Article |
| Language: | English |
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Bar Association of Vojvodina, Novi Sad
2022-01-01
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| Series: | Glasnik Advokatske komore Vojvodine |
| Subjects: | |
| Online Access: | https://scindeks-clanci.ceon.rs/data/pdf/0017-0933/2022/0017-09332203767M.pdf |
| _version_ | 1797938612016250880 |
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| author | Mihelčić Gabrijela Marochini-Zrinski Maša |
| author_facet | Mihelčić Gabrijela Marochini-Zrinski Maša |
| author_sort | Mihelčić Gabrijela |
| collection | DOAJ |
| description | In this paper, the authors rely on the results of scientific research based on which they concluded that although there are notable differences between the Croatian national regulation of immission protection and the one provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and taking into account the role of the Convention (the principle of subsidiarity), it is not inconceivable that protecting this right (which all states are obligated to protect) strengthens the position of the authorized national representative for negatory protection (e.g., the possibility of determining the basis relevant for negatory action in a less complex way; removing discrepancies, such as, for example, the requirement that proprietary legal protection of ownership and other proprietary rights against immissions is preceded by protections pursuant to special regulations, etc.). In this light, the authors analyse recent Convention case-law and compare the regulation of negatory action (protection of property from harassment) with the protection of a specific right established by the Convention - the right to live in a healthy environment based on Article 8 of the Conventionthe right to respect for private and family life, home and correspondence. Exhaustively analysing the right to live in a healthy environment, they explain the interpretative methods and principles used by the European Court in detail, continuing their research concerning this issue. The main focus is on exploring the features of previously postulated rights: the requirement that the human rights protected by the Convention are violated by adverse environmental factors (that is, the existence of a specific Convention causal link); the category of a minimum level of severity; oscillation of this "quantum" of the minimum level of severity within Convention "fluctuations" and the scope (and type) of protection of the right to live in a healthy environment through the paradigm of the positive/negative obligations of the contracting states; naturally, bearing in mind the more recent cases brought before the Court. In conclusion, the authors answer the question postulated in the title of the paper. |
| first_indexed | 2024-04-10T19:02:53Z |
| format | Article |
| id | doaj.art-e9ce6f8f8f904e78be34a89af2ca39c9 |
| institution | Directory Open Access Journal |
| issn | 0017-0933 2683-5967 |
| language | English |
| last_indexed | 2024-04-10T19:02:53Z |
| publishDate | 2022-01-01 |
| publisher | Bar Association of Vojvodina, Novi Sad |
| record_format | Article |
| series | Glasnik Advokatske komore Vojvodine |
| spelling | doaj.art-e9ce6f8f8f904e78be34a89af2ca39c92023-01-31T08:08:20ZengBar Association of Vojvodina, Novi SadGlasnik Advokatske komore Vojvodine0017-09332683-59672022-01-0194376782310.5937/gakv94-389790017-09332203767MShould negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment?Mihelčić Gabrijela0https://orcid.org/0000-0002-7956-2668Marochini-Zrinski Maša1https://orcid.org/0000-0002-8441-2277Sveučilište u Rijeci, Pravni fakultet, Katedra za građansko pravo, Rijeka, HrvatskaSveučilište u Rijeci, Pravni fakultet, Rijeka, Katedra za teoriju države i prava, filozofiju prava, ljudska prava i javnu politiku, HrvatskaIn this paper, the authors rely on the results of scientific research based on which they concluded that although there are notable differences between the Croatian national regulation of immission protection and the one provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and taking into account the role of the Convention (the principle of subsidiarity), it is not inconceivable that protecting this right (which all states are obligated to protect) strengthens the position of the authorized national representative for negatory protection (e.g., the possibility of determining the basis relevant for negatory action in a less complex way; removing discrepancies, such as, for example, the requirement that proprietary legal protection of ownership and other proprietary rights against immissions is preceded by protections pursuant to special regulations, etc.). In this light, the authors analyse recent Convention case-law and compare the regulation of negatory action (protection of property from harassment) with the protection of a specific right established by the Convention - the right to live in a healthy environment based on Article 8 of the Conventionthe right to respect for private and family life, home and correspondence. Exhaustively analysing the right to live in a healthy environment, they explain the interpretative methods and principles used by the European Court in detail, continuing their research concerning this issue. The main focus is on exploring the features of previously postulated rights: the requirement that the human rights protected by the Convention are violated by adverse environmental factors (that is, the existence of a specific Convention causal link); the category of a minimum level of severity; oscillation of this "quantum" of the minimum level of severity within Convention "fluctuations" and the scope (and type) of protection of the right to live in a healthy environment through the paradigm of the positive/negative obligations of the contracting states; naturally, bearing in mind the more recent cases brought before the Court. In conclusion, the authors answer the question postulated in the title of the paper.https://scindeks-clanci.ceon.rs/data/pdf/0017-0933/2022/0017-09332203767M.pdfthe right to live in a healthy environmentnegatory actionimmissionseuropean court of human rights |
| spellingShingle | Mihelčić Gabrijela Marochini-Zrinski Maša Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment? Glasnik Advokatske komore Vojvodine the right to live in a healthy environment negatory action immissions european court of human rights |
| title | Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment? |
| title_full | Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment? |
| title_fullStr | Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment? |
| title_full_unstemmed | Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment? |
| title_short | Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the right to live in a healthy environment? |
| title_sort | should negatory action against immissions be reformed in the light of the european convention for the protection of human rights and fundamental freedoms and the right to live in a healthy environment |
| topic | the right to live in a healthy environment negatory action immissions european court of human rights |
| url | https://scindeks-clanci.ceon.rs/data/pdf/0017-0933/2022/0017-09332203767M.pdf |
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