The Irish “Bail-Out” and Cuts to Social Protection Spending— the Case for a Right to a Subsistence Minimum in EU Law

2014 ◽  
Vol 15 (4) ◽  
pp. 569-597
Author(s):  
Roderic O'Gorman
Keyword(s):  
Social Protection ◽  
Constitutional Court ◽  
Welfare Benefits ◽  
Basic Law ◽  
European Court ◽  
Subsistence Minimum ◽  
German Constitutional Court ◽  
The Right ◽  
The Impact ◽  
Bail Out

As part of the 2010 EU/IMF economic adjustment program or “bail-out,” the Irish Government was required to undertake billions of euros in cuts to social protection spending over a three-year period. These have been implemented in subsequent budgets, resulting in increased levels of poverty and social exclusion. In light of these impacts on social rights in Ireland and other Member States, this article argues that the outcome of such Union legislative measures should be subject to some degree of rights-based scrutiny. It examines how, in theHartz IVdecision, the German Constitutional Court ruled that an attempt by the German Government to pass legislation that significantly cut a range of social welfare benefits breached the fundamental right to a subsistence minimum under the German Basic Law. Drawing inspiration from the approach of the German Constitutional Court, the article argues that the two elements of the German Basic Law which grounded that decision—the right to human dignity (Article 1(1)) and the social state principle (Article 20(1))—are both present within the Union Treaties as a result of changes occasioned by the Lisbon Treaty. The article advocates that the European Court of Justice should discover such a right within Union law and use it as a tool to analyze the impact of future cuts mandated by Union institutions on the economically disadvantaged.

The Effects of the Judgments of the European Court of Human Rights According to the German Constitutional Court

2010 ◽  
Vol 11 (5) ◽  
pp. 513-526 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
The Rule Of Law ◽  
Basic Law ◽  
European Court ◽  
German Constitutional Court ◽  
The Individual ◽  
Willingness To Cooperate

The Federal Republic of Germany counts among the earliest States parties to the European Convention on Human Rights (ECHR). It ratified the ECHR on 5 December 1952, three years ahead of Italy, and hence found itself among the original members of the treaty system when the ECHR entered into force on 3 September 1953. For the new democratic Government, it was a decision of principle to affirm its willingness to cooperate peacefully within the group of European States, submitting to an international review mechanism with regard to all of its activities. Therefore, very shortly afterwards, it accepted also the individual application under Article 25 ECHR, which at that time was not yet compulsory for all States parties. For many years under the Nazi dictatorship, Germany had brought death and destruction to its neighbours. Now, organized under a democratic and liberal constitution, the Basic Law (BL), it wanted to manifest its newfound identity as a civilized State abiding by the rule of law.

Die Staatstheorie des Bundesverfassungsgerichts und Europa

2020 ◽  
Author(s):  
Robert Chr. van Ooyen
Keyword(s):  
Human Rights ◽  
State Theory ◽  
European Court Of Justice ◽  
Constitutional Court ◽  
Court Of Justice ◽  
European Court ◽  
German Constitutional Court ◽  
Eighth Edition ◽  
The Right ◽  
The Guardian

With the Treaty of Lisbon, the Second Senate of the German Constitutional Court intensified its judgements with regard to Europe and in its recent rulings on rescuing the euro and the electoral threshold in EU elections emphasised its belief in a form of democracy based on the idea that the nation and the state supersede everything else, a standpoint which it has adopted since the Treaty of Maastricht. With the right to be forgotten I and II, the First Senate has now also reacted to the European Court of Justice by suddenly committing itself to being the ‘guardian’ of European fundamental human rights and even threatening to revert to its old ‘European-friendly’ Solange II rulings. This book’s principal argument is that all this reveals the Europhobic nature of the German Constitutional Court’s state theory, which results from outdated traditions in the German doctrine of constitutional law and from a lack of democratic theory. The recent rulings on the EU’s Charter of Fundamental Human Rights from November 2019 are just some of new additions to the eighth edition of this book.

scholarly journals A liberdade religiosa dos professores, na Alemanha - A proibição geral do uso do véu islâmico por professoras de escolas públicas, em especial

2021 ◽  
Author(s):  
Cássia Juliana de Souza Monteiro
Keyword(s):  
Public Schools ◽  
Religious Freedom ◽  
Case Law ◽  
Court Case ◽  
Constitutional Court ◽  
Basic Law ◽  
German Constitutional Court ◽  
The Difference ◽  
The Right ◽  
The Relationship

In this study, we used as a basis the examination of the German Constitutional Court case law of January 27th, 2015, in which the right of two Muslim employees at public schools to use hijab in the workplace was discussed. We cover the protection of religious freedom in Germany, as defined in art. 4th of the German Basic Law; the relevance of abstract risk and concrete risk in the rationale for an eventual restriction on the fundamental right to religious freedom; the difference and the application of “weighting” and “proportionality”, within the scope of the constitutional interpretation principle of “practical agreement”, where the legal assets to be protected must be coordinated with each other, so that each of them, individually, gain reality, being applied in the relationship “positive religious freedom v. negative religious freedom”; and we highlight the importance of the concept of “neutrality” adopted by States, where some of them are based on secularity and others on secularism.

Multilevel cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund

2010 ◽  
Vol 6 (2) ◽  
pp. 175-198 ◽  
Author(s):  
Andreas Voβkuhle
Keyword(s):  
Human Rights ◽  
Federal Court ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Basic Law ◽  
European Court ◽  
Broad Concept ◽  
Federal Constitutional ◽  
German Constitutional Court

Broad concept of constitutional jurisdiction – Triangle between Karlsruhe, Strasbourg and Luxembourg – European vocation of the German Constitutional Court and Basic Law – European Convention on Human Rights – Karlsruhe decisions can be reviewed in Strasbourg – Human rights-related constitutional court – European Court of Justice developed into constitutional court of the Union – Verbund between three courts – No simplistic hierarchy – Verbund techniques – Dialogue in Human Rights; Interplay in Integration – Federal Constitutional Court and European Court of Human Rights functionally comparable – Both Courts seek substantive coherence as Verbund technique – Federal Constitutional Court commits all German authorities to the Convention – Federal Constitutional Court and ECJ – Principle of openness to European Law – Sharing and assigning responsibilities in complex system – Solange, ultra vires and identity review – Responsibility for integration, due by Court and other German bodies – Federal Court contributes to common European Constitutional order – Europe-wide discursive struggle and ‘Lernverbund’

scholarly journals MARRIAGE AS A CONSTITUTIONAL AND LEGAL CATEGORY: HISTORY AND MODERNITY

2021 ◽  
pp. 131-135
Author(s):  
E.O. Kolokolova
Keyword(s):  
Russian Federation ◽  
Family Relations ◽  
Constitutional Court ◽  
Marriage And Family ◽  
Legal Structure ◽  
Basic Law ◽  
European Court ◽  
The Russian Federation ◽  
Legal Fact ◽  
The Impact

Marriage can be interpreted as an institution of law, a legal fact, a special form of contract, a specific legal structure. In recent years, there has been an active debate about the neutralization of this definition regarding the gender difference between spouses. Many countries have legalized same-sex unions. The Constitutional Court of Russia and the European Court of Human Rights consider cases of discrimination based on sexual orientation. It is impossible to deny the importance of the institution of marriage for the legal field of any state. Marriage as a legal fact significantly affects the property and personal rights of spouses and other family members. In 2020 a number of amendments were made to the Constitution of the Russian Federation, among which was an amendment stating that marriage is a union of a man and a woman. There was a lot of controversy around this amendment. The rationale for introducing this definition into the text of the Constitution of the Russian Federation was the establishment of a final understanding of the institution of marriage. However everything is not clear. Is the consolidation of marriage as a constitutional and legal category a guarantee of preserving the traditional understanding of the marriage union? The article analyzes the category of «marriage» in the framework of the constitutional legislation of Russia. The article analyzes the significance of the amendment on marriage in the text of the Basic Law and the impact of this fact on the development of legislation on marriage and family relations.

scholarly journals Welfare sanctions and the right to a subsistence minimum: A troubled marriage

2020 ◽  
Vol 22 (3) ◽  
pp. 257-272
Author(s):  
Valery Gantchev
Keyword(s):  
Social Inclusion ◽  
Social Protection ◽  
Social Assistance ◽  
Primary Objective ◽  
Constitutional Court ◽  
Legal Analysis ◽  
Human Right ◽  
Subsistence Minimum ◽  
Recent Developments ◽  
The Right

Can welfare sanctions and the right to a subsistence minimum coexist? The present article sheds light on this question by examining recent developments in German social assistance law and placing them in the broader international legal context. In November 2019, the German Constitutional Court declared a large portion of the applicable regime unconstitutional because it violated the basic right to a guaranteed subsistence minimum. The first part of the article examines this German basic right and the way its normative requirements are applied by the Constitutional Court to welfare sanctions. Two important points of reference which are discussed relate to the effectiveness of the measures and the availability of sanction mitigation instruments that safeguard the constitutionally guaranteed subsistence minimum. The second part of the article carries out a similar examination into the international human right to social assistance and the respective case law of the international supervisory bodies. A comparative legal analysis is carried out in the third part, which highlights the similarities between the German and the international legal approach to minimum social protection and welfare sanctions. The article concludes with the observation that welfare sanctions and the right to a subsistence minimum can only coexist under the condition that states respect the absolute nature of minimum social protection and reconcile the adopted measures with the primary objective of social assistance: reintegration and social inclusion.

Marcosian Atrocities: Historical Revisionism and the Legal Constraints on Forgetting

2018 ◽  
Vol 19 (2) ◽  
pp. 140-190
Author(s):  
Raphael Lorenzo A. Pangalangan ◽  
Gemmo Bautista Fernandez ◽  
Ruby Rosselle L. Tugade
Keyword(s):  
Human Rights ◽  
The Philippines ◽  
Constitutional Court ◽  
Historical Revisionism ◽  
The People ◽  
Conflicting Demands ◽  
European Court ◽  
German Constitutional Court ◽  
Legal Constraints ◽  
The Right

The Philippines resoundingly cried ‘never again’ to the horrors of the Marcos dictatorship through the People Power revolution of 1986. Thirty years later, the Filipino people have come to realise that success is indeed fleeting. On 18 November 2016, the remains of Philippine dictator Ferdinand E. Marcos were buried in the Libingan ng mga Bayani—the Heroes’ Cemetery. While the Philippine Supreme Court insists that the hero’s burial conferred to the author of the nation’s darkest chapter is a political question, from established doctrines here and abroad, the authors seek to derive the political answer. This article will look at the legitimacy of memory laws within the Philippine Constitutional framework. Finding guidance from the Auschiwtz lie case of the German Constitutional Court, the article seeks to combat historical revisionism and prohibit the Marcosian lie. Our research begins by looking at the resurgence of authoritarianism as seen through the populist presidency of Rodrigo Roa Duterte. We will then proceed to address the threshold issue of state-sanctioned narratives. Recognising that the duty to establish the truth involves the power to determine the narrative, the authors will reconcile the conflicting demands of the freedom of thought and the right to the truth. We will then proceed by utilising the fact-opinion distinction to demonstrate how the Marcosian lie may be the valid subject of regulation. The last phase of the research looks into the approaches adopted by the United Nations (un) Human Rights Committee and the European Court of Human Rights in dealing with negationism and historical revisionism.

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».

scholarly journals Judicial Error: Responsibility, but not the Right

2019 ◽  
pp. 4-17
Author(s):  
Vyacheslav Kurchenko
Keyword(s):  
Professional Experience ◽  
Constitutional Court ◽  
Legal Rules ◽  
Judicial Practice ◽  
European Court ◽  
Gradual Accumulation ◽  
Judicial Errors ◽  
The Right ◽  
Judicial Error

In the article, the causes of judicial errors are discussed. The author examines the possibilities of imposing discipline sanctions on judges for their errors, considers a range of questions. In particular, should a judge seek the truth while hearing a case? Is a judge responsible for not only his or her errors but also for the errors of investigators, experts, and other participants of a proceeding? The author indicates various types of judicial errors and comes to a conclusion that gradual accumulation of ordinary or insignificant errors in the judge’s activity inevitably leads to systematic (or unordinary) errors. They indicate that the judge is unfair or incompetent. Drawing on personal professional experience and judicial practice, positions of the Russian Constitutional Court and the European Court of Human Rights, the author makes a link between judicial errors and the quality of justice. He emphasizes that the judge should follow the legal rules concerning adjudication and maintain his or her level of competence.

scholarly journals The right to peaceful enjoyment of property and the security measure of the forfeiture of cash in the jurisprudence of the Serbian Constitutional Court: Certain uncertainty

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Public Interest ◽  
Cash Transfer ◽  
Constitutional Court ◽  
The Public ◽  
Cross Border ◽  
Security Measure ◽  
European Court ◽  
The Right

The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.

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