Convergence of the Protection of Fundamental Rights Between the Spanish Constitutional Court and the European Court of Human Rights

2016 ◽  
pp. 13-27
Author(s):  
Pedro Julio Tenorio Sánchez
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
European Court

Effectiveness of EU law and protection of fundamental rights

2018 ◽  
Vol 9 (1) ◽  
pp. 24-30 ◽  
Author(s):  
Rosaria Sicurella
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Eu Law ◽  
Critical View ◽  
Court Of Justice ◽  
European Court ◽  
Significant Step ◽  
Principle Of Legality

The decision of the Court of Justice in the M.A.S. and M.B. case marks a very significant step forward in the Taricco saga. It clearly shows the intention of the European Court to tone down the confrontation with the Italian Constitutional Court, while at the same time maintaining the most relevant achievement of the decision in the Taricco case, that is to say the fact to consider Article 325 TFEU as having direct effect. The author expresses quite a critical view on the solution adopted by the ECJ which finally results in a sort of “flexibilization” of the principle of legality at EU level in order to meet some of the claims by the Italian Constitutional Court. In the author's opinion, such a solution risks to undermine the overall coherence and soundness of the protection of fundamental rights at EU level, although it can appear at a first glance to boost the legality principle. A better solution could have been to develop a different reasoning relying on rights in the Charter other that the nullum crimen principle, and avoid to touch at the well-established scope of this principle as established in Article 49 Charter and also in Article 7 of the European Convention on Human Rights.

Ensure the Inviolability of Personal Life in the Conduct of Police Preventive Activities

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 51-59
Keyword(s):  
Human Rights ◽  
Personal Data ◽  
Private Life ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Human Beings ◽  
National Courts ◽  
European Court ◽  
Principle Of Proportionality ◽  
The Right

The paper addresses the basic rights and freedoms guaranteed by the Constitution of Georgia, in particular, issues related to personal data. The development of information technology has had a significant impact on the dangers of illegal processing of personal data. The European Court of Human Rights considers the inviolability of private life as a precondition for human autonomy, independent development and protection of human dignity. According to the norms of international law, the right to respect for private life is recognized as one of the most important and fundamental rights, the protection of which is indicated by the legislation of Georgia. The aim of the paper is to analyze the legislation and practice of police law in the field of protection of the right to privacy and to offer relevant recommendations, taking into account the standards set by European and national courts. Human rights legislation must ensure the protection of all human beings against the abuse of state power. Interference with rights must be based on the principle of proportionality. The use of policing should not pose an excessive threat of fundamental human rights violations. Interference with a particular right must be done under principle of proportionality to achieve a certain public good. In clarifying the issue of alleged violation of the right, special attention should be paid to the severity and probability of the expected threat to legal good. The Constitution of Georgia, EU and Council of Europe data protection standards, national legislation, as well as the case law of the European Court of Human Rights and the National Constitutional Court are analyzed around the topic. In addition, the reports of the State Inspector, the Public Defender and the relevant scientific literature are used to study the above issues.

Remote Participation in Criminal Proceedings: Does the Reformed Italian Regulation Represent an Application Extension Able to Conflict with the Right to a Fair Trial?

2019 ◽  
Vol 9 (2) ◽  
pp. 187-201
Author(s):  
Giulia Angiolini
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Italian Law ◽  
European Court ◽  
Recent Reform ◽  
The Right ◽  
Remote Participation

The purpose of this paper is to try to analyse the Italian regulation of accused persons’ remote participation in criminal proceedings. The interest in this matter arises from the suspected frictions of the provisions at hand with fundamental rights to be guaranteed for a fair trial. These suspicions, aroused right after the introduction of the institute in Italian law, have been increased by the recent reform of the discipline of remote participation, and they become even clearer after a comparison of Italian regulation with those of other European Countries. Hence, an inescapable question occurs: will the European Court of Human Rights and the Italian Constitutional Court save the new regulation as they did with the previous one?

scholarly journals Expression of opinion through Acts. A brief analysis of the Hungarian Constitutional Courts practice

2021 ◽  
Author(s):  
Szabolcs Stock
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
European Court ◽  
The Right

The aim of the article is to present how one can excercise their freedom of expression through acts. I focus ont the decisions of the Hungarian Constitutional Court, the European Court of Human Rights and the U. S. Supreme court. I analyze these decisions, and compare the fundamental rights that can collide, such as freedom of expression versus the right to property, which one should prevail when they come into collision. I also study how one can decide, whether the act should fall within the protected circle of the freedom of expression, or it should be penalized as a crime, or misdemeanor.

scholarly journals The constitutional protection of property: The case of Kosovo

SEER ◽  
2019 ◽  
Vol 22 (1) ◽  
pp. 53-66
Author(s):  
Ardrit Gashi
Keyword(s):  
Human Rights ◽  
Best Practice ◽  
Fundamental Rights ◽  
European Convention ◽  
Constitutional Court ◽  
General Applicability ◽  
Public Authorities ◽  
Constitutional Protection ◽  
European Court ◽  
Fundamental Rights And Freedoms

One of the main constitutional legal protections in Kosovo is that applying to property. The Constitution guarantees this and it can therefore be realised at the Constitutional Court. Problems regarding the protection of property have, for many reasons, been a continuous feature of Kosovan institutions and society, notably after 1999. Therefore, this topic, both in the light of the constitutional provisions and in interaction with the standards and interpretations of the European Court of Human Rights, constitutes a highly important one for analysis. This article presents aspects of the requirements for filing complaints over the protection of property, emphasising the position of the European Convention on Human Rights in the Kosovo legal system and the application of Protocol 1 of the Convention. The paper refers mainly to Kosovo, but the academic discourse it generates has general applicability. The Constitutional Court, based on Article 53 of the Constitution, obliges all public authorities to implement the best practice of the European Court in adjudicating the Constitutional guarantees on fundamental rights and freedoms.

The Inter-Institutional Dimension of the Fundamental Rights RevolutionThe Colombian–American Implications of the Franco-European Experience

2021 ◽  
pp. 393-424
Author(s):  
Mitchel Lasser
Keyword(s):  
Human Rights ◽  
Latin American ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
European Court ◽  
European Experience ◽  
European System ◽  
Institutional Dimension ◽  
Latin American Countries

This chapter offers a comparative study between the judiciaries of France/Europe and Colombia/Latin America, in the context of the 'fundamental rights revolution'. After explaining the Franco-European system of interaction, it assesses what this analysis may suggest regarding the elaboration of human rights jurisprudence in Colombia and other Latin American countries that operate under the Inter-American Human Rights System. Whereas Colombia has distinct 'judicial hierarchies' (Constitutional Court, Supreme Court, and State Council), there is only one court at the international level: The Inter-American Court of Human Rights (ICtHR). This is one of the key differentiators with the European system, where there is an institutional competition in the fundamental rights front between the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ). Therefore, the differences amongst the systems affect the circulation and intensification of fundamental rights in the Latin American context.

The Taricco Affair

2019 ◽  
pp. 3-18
Author(s):  
Giuliana Ziccardi Capaldo
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Shared Understanding ◽  
Constructive Dialogue ◽  
European Court ◽  
Global Principles ◽  
Judicial Protection ◽  
Global Law

The author addresses “the dialogue between the deaf and the dumb” that occurred between the European Court of Justice (ECJ) and the Italian Constitutional Court (ItCC) regarding the Taricco affair. At the request of the Italian courts, the ECJ has ruled on the interpretation of Article 235 TFEU in the fight against VAT fraud (“Taricco rule”) in two judgments which, despite some shortcomings in their implementation, are innovative, i.e., based on new principles of global law that provide effective judicial protection of economic and social human rights. The author notes the failure of the dialogue between the ItCC (“deaf”)—which has blocked the door to the Taricco rule by virtue of being unable to grasp the novelty of the two judgments—and the ECJ (“dumb”)—incapable of interpreting and disseminating global law. This article identifies the path to a constructive dialogue in what the author calls a “knowledge dialogue,” suitable to create a shared understanding of global principles for a uniform system of protection of fundamental rights.

scholarly journals Providing of Reasonableness in Decisions of the Constitutional Court in the Scope of Recognition of the Echr’s Decisions

2021 ◽  
Vol 7 (2) ◽  
pp. 1-14
Author(s):  
Laura BZOVA ◽  
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Case Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Constitutional Reform ◽  
Court Decision ◽  
Constitutional Court ◽  
European Court ◽  
Judicial Reasoning

The relevance of the study of judicial reasoning in public law is related to the challenges of modern litigation, which require new approaches to the construction of a court decision. This is also due to the constitutional reform in Ukraine, in particular the latest amendments to the Constitution of Ukraine in the field of justice. The emergence of the priority issue of constitutionality led to the rupture of the system, where the protection of fundamental rights in a particular issue was essentially ensured in accordance with the case law of the European Court of Human Rights. The Constitutional Court of Ukraine always uses the decisions of the European Court of Human Rights to form its own legal positions, after which they actually become a substantive element of the motivating part of the decision of the Constitutional Court of Ukraine. It is concluded that regardless of whether the decision of the European Court of Human Rights has been ruled on Ukraine or not, it is a source of constitutional law of Ukraine.

scholarly journals Fundamental Rights and the Obligation to Publicly Disclose Information on Tax Strategy

2021 ◽  
pp. 7-20
Author(s):  
Adam Szymacha
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The European Union ◽  
Academic World ◽  
The Right To Privacy ◽  
European Court ◽  
Right Of Privacy ◽  
The Right Of Privacy ◽  
The Right

The aim of the article: The presented study concerns the problem of violations of fundamental rights caused by the law regulation contained in art. 27c of the Corporate Income Tax Act in Poland. This regulation provides obligation to publish information about introduced tax strategies. Yet, it may endanger many human rights and this article focuses on two of them – the right to remain silent, and the right of privacy. The aim of this article is to make an analysis of the standards presented by the Court of Justice of the European Union and the European Court of Human Rights. Additionally, the standard presented by the Polish Constitutional Court is presented. Methodology: To decode these standards the comparative law method is used. Especially the case laws of these courts are presented and additionally, they are completed by the comparison of the acts that concern similar law institutions but come from different lawmakers. Results of the research: The results of the study do not provide a clear answer. However, they do allow for an approximation of the issue of possible violations of fundamental rights by the analyzed regulation. It is very likely that the analyzed regulation violates the right to remain silent and it is even close to certainty that the analyzed laws violate the right to privacy. The problem is not only the interference in these rights, but in its character as well. Under certain circumstances, interference with fundamental rights is acceptable but must be proportionate. Examined laws are only explained in terms of budgetary balance and the academic world points out that the purpose of this type of regulation is mainly of administrative convenience. This is far too little to consider this interference with fundamental rights imperative.

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

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