Limits of Fundamental Rights in the Face of Terrorism

2009 ◽  
pp. 185-220
Author(s):  
Christina Eckes
Keyword(s):  
Fundamental Rights ◽  
The Face

scholarly journals A CONCEPÇÃO E A PERSPECTIVA FILOSÓFICA SOBRE O MODELO DE FAMÍLIA EUDEMONISTA FRENTE AO ENTENDIMENTO MAJORITÁRIO DE VÍNCULO BIOLÓGICO COMO ELEMENTO CARACTERIZADOR DA ENTIDADE FAMILIAR

2021 ◽  
Vol 9 (204) ◽  
pp. 1-18
Author(s):  
Gabriela Dantas da Silva
Keyword(s):  
Immanuel Kant ◽  
Legal System ◽  
Fundamental Rights ◽  
Main Topic ◽  
Social Sphere ◽  
Legal Challenges ◽  
The Family ◽  
The Face ◽  
The Subject ◽  
Philosophical Nature

The main topic of this article is to analyze the philosophical contributions on the subject and to criticize the State's actions as an entity that supports this family model. In a second moment, emphasis is given to the philosophical contributions of Immanuel Kant and Aristotle on morals and ethics, extending them to the family and social sphere. The concept of the Eudemonist Family with great Aristotelian influence, as well as some of the main contemporary family entities in brief contextualization, is also presented, to finally address the main problem of this article: the legal challenges of the Eudemonist family in the face of the majority understanding of biological bond as a characterizing element of the family entity. In conclusion, the philosophical nature is of great importance for the understanding of these new conceptions of the family, since the Brazilian legal system did not, in fact, contemplate the experience of society, not giving up texts that were expressly discriminatory and that excluded fundamental rights of individuals.

Epilogue

2018 ◽  
pp. 353-366
Author(s):  
Marcelo Sánchez Sorondo
Keyword(s):  
Social Life ◽  
Common Good ◽  
Private Property ◽  
Fundamental Rights ◽  
The Common Good ◽  
Housing Security ◽  
The Face ◽  
The Common ◽  
Education And Employment ◽  
National Borders

Migration is a shared condition of all humanity. We have all been strangers in a strange land. All humanity lives today as a result of migration, by themselves or their ancestors. Migration is a matter sometimes of choice, often of need, and always an inalienable right. All helpless people deserve to be helped. Offering such help is a commandment and a blessing shared among all religions. Accordingly, as Pope Francis reminds us, our duties to migrants include “to welcome”, “to protect”, “to promote”, and “to integrate.” National borders are not a result of primary natural law, as aren’t private property and clothes, “because nature did not give [humans] clothes, but art invented them”. National borders depend on social, political and geographical factors. Therefore, faced with current waves of mass migration, in order to establish practices that respond to the common good we need to be guided by three levels of responsibility. The first principle being that “in case of need all things are common”, because “every man is my brother”. This principle is relative to existence or subsistence and conditions other related issues (such as accommodation, food, housing, security, etc.). Secondly, as part of the fundamental rights of people, legal guarantees of primary rights that foster an “organic participation” in the economic and social life of the nation. Access to these economic and social goods, including education and employment, will allow people to develop their own abilities. Thirdly, a deeper sense of integration, reflecting responsibilities related to protecting, examining and developing the values that underpin the deep, stable, unity of a society— and, more fundamentally, create a horizon of public peace, understood as St. Augustine’s "tranquility in order". In particular, with regards to the aforementioned context, policies on migration should be guided by prudence, but prudence must never mean exclusion. On the contrary, governments should evaluate, “with wisdom and foresight, the extent to which their country is in a position, without prejudice to the common good of citizens, to offer a decent life to migrants, especially those truly in need of protection. Strangely enough, the response of most governments in the face of this phenomenon only seems to value the third principle, completely disregarding the first two.

scholarly journals RISCOS E POSSIBILIDADES DO ATIVISMO JUDICIAL NA DEMOCRACIA

2021 ◽  
Vol 16 (1) ◽  
pp. 181-200
Author(s):  
Rogério Gesta Leal
Keyword(s):  
Key Words ◽  
Social Relations ◽  
Political Representation ◽  
Public Policies ◽  
Fundamental Rights ◽  
Judicial Activism ◽  
Political Decision ◽  
The Face

RESUMOO objetivo deste trabalho é verificar em que medida é possível conciliar ativismo judicial e democracia, considerando principalmente os desafios que se apresentam as relações sociais contemporâneas. A justificativa desta proposta se sustenta no fato de que o Poder Judiciário tem sido cada vez mais procurado para dar conta de demandas envolvendo as insuficiências das politicas públicas governamentais em face de direitos fundamentais. Demarcamos como problema da abordagem verificar se é possível superar eventuais tensões entre o excesso de ativismo judicial e a democracia enquanto representação politica também institucional de outros poderes, e como hipótese a premissa de que deva-se adotar, para a solução do problema, perspectiva ampliada da atuação do Poder Judiciário a partir da compreensão igualmente oxigenada da Democracia e dos seus outros legítimos protagonistas, sob pena do esvaziamento de instancias importantes de deliberação e decisão política quotidiano. A metodologia utilizada neste trabalho foi a hipotética dedutiva.PALAVRAS-CHAVE: Ativismo Judicial; Democracia; Representação PolíticaABSTRACTThe objective of this work is to verify to what extent it is possible to conciliate judicial activism and democracy, considering mainly the challenges presented by contemporary social relations. The justification of this proposal is based on the fact that the Judiciary has been increasingly sought to deal with demands involving the inadequacies of governmental public policies in the face of fundamental rights. We point out as a problem of the approach to verify if it is possible to overcome possible tensions between the excess of judicial activism and democracy as a political representation also institutional of other powers, and as a hypothesis the premise that it should be adopted, for the solution of the problem, the oxygenated understanding of Democracy and its other legitimate protagonists, under penalty of emptying important instances of deliberation and daily political decision. The methodology used in this work was the hypothetical deductive. KEY-WORDS: Judicial Activism; Democracy; Political Representation

The Right to Erasure in EU Data Protection Law

2020 ◽  
Author(s):  
Jef Ausloos
Keyword(s):  
Data Protection ◽  
Fundamental Rights ◽  
Individual Autonomy ◽  
General Data Protection Regulation ◽  
Power Asymmetries ◽  
The Face ◽  
Charter Of Fundamental Rights ◽  
Data Protection Law ◽  
The Right ◽  
Data Subject

This book critically investigates the role of data subject rights in countering information and power asymmetries online. It aims at dissecting ‘data subject empowerment’ in the information society through the lens of the right to erasure (‘right to be forgotten’) in Article 17 of the General Data Protection Regulation (GDPR). In doing so, it provides an extensive analysis of the interaction between the GDPR and the fundamental right to data protection in Article 8 of the Charter of Fundamental Rights of the EU (Charter), how data subject rights affect fair balancing of fundamental rights, and what the practical challenges are to effective data subject rights. The book starts with exploring the data-driven asymmetries that characterize individuals’ relationship with tech giants. These commercial entities increasingly anticipate and govern how people interact with each other and the world around them, affecting core values such as individual autonomy, dignity, and freedom. The book explores how data protection law, and data subject rights in particular, enable resisting, breaking down or at the very least critically engaging with these asymmetric relationships. It concludes that despite substantial legal and practical hurdles, the GDPR’s right to erasure does play a meaningful role in furthering the fundamental right to data protection (Art 8 Charter) in the face of power asymmetries online.

Die Vortäuschung eines Zufallsfundes im Ermittlungsverfahren

2019 ◽  
Author(s):  
Lukas Schefer
Keyword(s):  
Criminal Procedure ◽  
Organised Crime ◽  
Fundamental Rights ◽  
Applicable Law ◽  
Investigative Tool ◽  
Dual Functional ◽  
Legislative Proposal ◽  
The Face ◽  
Conflicting Interests ◽  
Random Nature

In the face of the complex investigative situation in cases of organised crime, criminal investigations have established various investigative measures not specifically covered by the German Code of Criminal Procedure as an integral part of effective investigative procedures. An investigative tool that has been used for some time is that of so-called “legendierte Kontrollen” (police checks whose apparently random nature is actually feigned). This publication explains the concept and structure of this measure and its relevance to fundamental rights. In particular, it highlights the principle of a fair trial. One of its focuses is therefore the question of which regulatory area is subject to dual-functional measures by the police. After presenting the inadmissibility of such checks in the eyes of the applicable law and the resulting consequences of this, the author conducts an examination of the conflicting interests in this regard, which leads to him making a concrete legislative proposal.

scholarly journals Charter Injunctions, Public Interest Presumption, and the Tyranny of the Majority

2020 ◽  
Vol 29 (1) ◽  
pp. 21-28
Author(s):  
Colin Feasby
Keyword(s):  
Public Service ◽  
Public Interest ◽  
Attorney General ◽  
Minority Rights ◽  
Fundamental Rights ◽  
Short Article ◽  
The Public ◽  
The Face ◽  
The Government ◽  
Court Of Appeal

Quebec’s Bill 21, which seeks to restrict employees in its public service from displaying religious symbols at work, has attracted a number of constitutional challenges. In one of those challenges, Hak v Quebec (Attorney General), the plaintiffs sought an injunction suspending the operation of parts of Bill 21 pending a decision on the merits.1 Both the Quebec Superior Court and the Quebec Court of Appeal declined to issue an injunction. The majority of the Quebec Court of Appeal found that in enacting Bill 21 the legislature must be presumed to have acted in the public interest and, as such, the third part of the injunction test — balance of convenience — could not be satisfied. The idea that Parliament and provincial legislatures must be presumed to be acting in the public interest — what I will call the public interest presumption — is problematic in Charter cases concerning constraints of fundamental rights and the treatment of minorities. Parliament and provincial legislatures are majoritarian institutions; they are the product of elections where the candidates and parties with the most votes win. A core objective of the Charter is to protect minorities from being oppressed by the majority. Giving too much weight to a majoritarian conception of the public interest in interlocutory injunction applications concerning minority rights undermines the Charter and negates injunctions and stays as elective remedies, particularly where an applicant establishes real harm. To fulfill the Charter’s mandate to protect minority rights it must be recognized that the government does not have a monopoly on representing the public interest and that a majoritarian conception of the public interest cannot control the outcome of the balance of convenience test in the face of evidence that other aspects of the public interest are harmed by the impugned legislation. This short article argues for a much weaker public interest presumption: one that may be rebutted by an applicant adducing evidence of harm to an identifiable group. 1  Hak c Procureure Générale du Québec, 2019 QCCA 2145 [Hak].

The Road not Taken: The European Union as a Global Human Rights Actor

2011 ◽  
Vol 105 (4) ◽  
pp. 649-693 ◽  
Author(s):  
Gráinne de Búrca
Keyword(s):  
European Union ◽  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
The European Union ◽  
The Road ◽  
The Status ◽  
The Face ◽  
Charter Of Fundamental Rights ◽  
The Eu

For many, the enactment of the European Union’s Treaty of Lisbon, with its range of significant human rights provisions, marks the EU’s coming of age as a human rights actor. The Lisbon Treaty inaugurated the legally binding character of the EU Charter of Fundamental Rights (EU Charter), enshrined a commitment to accede to the European Convention on Human Rights (ECHR), and, in Article 2 of the Treaty on European Union (TEU), identified human rights as a foundational value. These changes have already drawn comment as developments that “will change the face of the Union fundamentally,” that take the protection of rights in the EU “to a new level,” and that indicate that “the arguments for improving the status of human rights in EU law… have finally been heard. There is general agreement, in other words, that the EU has reached the high point of its engagement with human rights.

scholarly journals Courts of Accounts go to prison: administration of public resources in securing prisoners’ rights

2020 ◽  
Vol 78 (171) ◽  
Author(s):  
Carolina Cutrupi Ferreira
Keyword(s):  
Human Dignity ◽  
Prison System ◽  
Fundamental Rights ◽  
Budget Control ◽  
Public Resources ◽  
Relevant Role ◽  
The Face ◽  
State Of Affairs ◽  
Audit Reports ◽  
Federal Supreme

In the last decade, Brazil’s Federal Supreme Court has tried several cases that structurally affected Brazil’s prison system. The paradigmatic judgement is the declaration of an unconstitutional state of affairs in the face of the generalized and systemic violation of the fundamental rights of prisoners in 2015. The declaration triggered a variety of actions from different agencies and authorities to assess, intervene and call for accountability for the repeated inability to modify the conditions of prisons. This paper will deal with the recommendations from audit reports issued by financial and budget control agencies and aims to analyze how these conclusions are inserted in the process of declaring an “unconstitutional state of affairs” of Brazil’s prison system. This study concludes that control agencies have a relevant role in the creation of a standard to assess the rights of prisoners, through minimum indicators of efficiency and administration that allow for an assessment of progress and regression in securing these rights. This article contributes to the existing literature that analyzes the judicialization processes of penitentiary matters, to the debate on the minimum information needed to secure the human dignity of prisoners and to the reflection on integrated solutions among different stakeholders.

scholarly journals Le palme muoiono in piedi al-Naḫl yamūtu wāqifan

2021 ◽  
Author(s):  
Andrea Facchin
Keyword(s):  
Fairy Tale ◽  
Arab World ◽  
Salt Lake ◽  
Essential Elements ◽  
Fundamental Rights ◽  
The Troubles ◽  
Class Differences ◽  
Palm Trees ◽  
The Face ◽  
The Many

al-Naḫl yamūtu wāqifan (Palm Trees Wither Upright) is the first work by Tunisian writer Ibrāhīm Darġūṯī, born in El-Mahassen (Tozeur) in 1955, proponent of the experimentalism and magical realism, and known all over the Arab world for his pungent writing style. The work was published in Sfax in 1989, and is a collection of short stories devoted to the local life of al-Ǧarīd region, in southern Tunisia; to its traditions, distinctive traits and, at times, to imagination, creating a unique mixture, which is representative of Darġūṯī’s literature. Men, the desert, and palm trees are the essential elements, the three primary colours of this literary text. Stories unfold around this triad and through them its author introduces the many facets of local reality. “A hand full of sun for ʿAzīz” or “Lion’s paw” reveal an intimate relationship between nature, represented by the palm grove, and the inhabitants of that land; a sort of tacit agreement for which one has promised to take care of the other since the dawn of time. Other stories explore all the repressive elements of the system: class differences, hunger, humiliation, tyranny; in short, the loss of fundamental rights. In this sense, Darġūṯī’s work is not remission or defenceless immobility in the face of the injustices perpetrated by man on his neighbour; on the contrary, it is pure rebellion. al-Naḫl is a vivid mixture in which multiple traditions blend. It is a set of fragments of an Arab, Tunisian or Saharan setting fairy tale, or of the Islamic cultural heritage. It shows the scars left by French colonialism, or the challenge of man facing the change of times. It is a condemnation of all kinds of injustice, a cry of anguish and restlessness for the troubles of everyday life. It is a glimpse of the Ǧarīd with its mysteries, the desert that claims men’s lives, the almost metaphysical landscapes of a salt lake that was once a sea. It is the first work by Darġūṯī translated into Italian.

scholarly journals Irregular Migration on the Central Mediterranean: A Critical Analysis

2021 ◽  
Vol 24 ◽  
pp. 638-649
Author(s):  
Patrick Agyare
Keyword(s):  
Fundamental Rights ◽  
Central Mediterranean ◽  
Irregular Migrants ◽  
True Number ◽  
The Face ◽  
The Mediterranean ◽  
Set Up ◽  
International Instruments ◽  
Institutional Challenges ◽  
The Eu

This paper examines the human rights situation of irregular migrants on the Central Mediterranean. For this, it investigates the content and nature of the challenges involved in this migratory phenomenon. The studies conducted on this theme led to the existence of political, legal, and institutional challenges related to the protection of fundamental rights of irregular migrants who undertake unsafe crossing of the Mediterranean to the EU. In this context, it seemed useful to question the capacity of existing norms to grasp the nuances of a constantly changing reality that puts pressure on individuals, states, and international organizations set up to protect them. It further highlights worrying trends of shipwrecks, with over one thousand deaths recorded in the first seven months of 2021, a number that could well underestimate the true number of fatal accidents. At the same time, the security of Europe’s Southern Borders must be respected in the face of unauthorized crossing of the Mediterranean. However, the obstacle to the rescue activities of NGOs, as well as decisions that delay the disembarkation of migrants rescued at sea, does not guarantee the minimum reverence for fundamental rights. This paper aims, therefore, to highlight the dangers inherent in unsafe practices of trafficking or transport of irregular migrants by sea. It further draws attention to both state and non-state actors to respect the fundamental rights of irregular migrants and to save lives at sea. Conversely, the fragmentation of international instruments amid the absence of a sovereign enforcing body can be seen as a limitation constraining the effectiveness of the fundamental rights of the migrants.

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