Constitutional Court Case No 207/2013: Constitutional Court, Spain: Santiago Martinez-Vares, Chair of the panel: 5 December 2013

2014 ◽  
Vol 3 (2) ◽  
pp. 359-360
Author(s):  
S. Canamares Arribas ◽  
J. Garcia Oliva
Keyword(s):  
Court Case ◽  
Constitutional Court

Confiscation of property in Czechoslovakia in 1945—exclusion of German jurisdiction—Convention on the Settlement of Matters Arising out of the War and the Occupation—nationality in international law—neutrality of Liechtenstein in World War II

1999 ◽  
Vol 93 (1) ◽  
pp. 215-219
Author(s):  
Bernard H. Oxman ◽  
Bardo Fassbender
Keyword(s):  
World War Ii ◽  
Court Case ◽  
Constitutional Court ◽  
World War ◽  
Head Of State ◽  
Federal Constitutional ◽  
Supreme Court Case ◽  
German Constitutional Court ◽  
Civil Courts ◽  
German Federal Constitutional Court

Prince of Liechtenstein v. Federal Supreme Court. Case 2 BvR 1981/97. 36 Archiv des Volkerrechts 198 (1998).German Federal Constitutional Court (3d Chamber, 2d Senate), January 28, 1998.On January 28, 1998, a chamber of the German Constitutional Court decided that the Court would not deal with a constitutional complaint brought before it by Prince Hans-Adam II of Liechtenstein, Head of State of die Principality of Liechtenstein. In effect, the chamber thus upheld the decisions made by the civil courts rejecting the Prince's attempt to recover a family painting confiscated by Czechoslovakia and currently on loan to a German museum.

scholarly journals Interpretation of law by the court as an element of legislation

2021 ◽  
pp. 153-164
Author(s):  
O. G. Koban
Keyword(s):  
Court Case ◽  
Constitutional Court ◽  
Court Cases ◽  
International Treaties ◽  
Judicial Interpretation ◽  
Lower Courts ◽  
The Subject ◽  
The Law ◽  
Characteristic Features ◽  
Correct Understanding

The article examines the problem of the essence and content of judicial interpretation, its characteristic features. The goal of a casual court interpretation is the correct understanding of the content of the norms of law, and the task is to individualize legal regulations. Acts of casual court interpretation are «samples» for lower courts, given that they are always guided by the practice of interpretation. The article also deals with the theoretical aspects of the institute of interpretation of law by court, its gist, and legal nature; explores the views of the Ukrainian and foreign scientists on the subject. The article also deals with relevant to modern legal practice issues of judicial interpretation. The peculiarity of the casual interpretation is that it has a person-oriented character and is relevant to specific circumstances. A casual interpretation can not go beyond the boundaries of a particular legal case and apply to similar cases. The difference between the normative interpretation and the casual is that the former may extend to an unspecified range of cases, and the second one to the incident that was the subject of a dispute. Subjects of casual interpretation are the judicial and administrative bodies. Clarification of the content of the law by the judiciary is a judicial interpretation. The official constitutional interpretation of the Constitutional Court of Ukraine is carried out in providing opinions on cases of constitutionality of laws and other legal acts, compliance with the Constitution of Ukraine of international treaties, adherence to the procedure of investigation and consideration of the case of removal of the President of Ukraine from office in the order of impeachment. The supreme court’s interpretation of the case largely influences judicial practice. Courts, in court cases, carry out a casual interpretation of the rules of law and develop case-law on the application of the rules of law. The casual judicial interpretation is the interpretive activity of the court in the process of reviewing and resolving court cases (or in the order of their review by the appellate or cassation instances), the purpose of which is a correct understanding of the content of the legal norm. His task is the individualization of legal requirements, and the result is binding only for a specific court case and parties involved in it. The acts of the casual interpretation of the higher judicial bodies are «samples» for lower courts, given that they are always guided by the practice of interpretation and application of the law by the highest judicial authorities and, as a rule, follow it. Characteristic features of the casual judicial interpretation is that its subjects are judges of all courts, it is directed at the consideration and resolution of a particular court case, the results of such an interpretation are binding only for the parties to a specific court case and are fixed in the motive part of the decision. Keywords: court, casual interpretation, the rule of law, judicial interpretation, rule.

scholarly journals Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Jackie Dugard
Keyword(s):  
South Africa ◽  
Separation Of Powers ◽  
The State ◽  
Court Case ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Western Cape ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Republic

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).    

scholarly journals La utilización del poder subvencional del Estado en el marco de la asistencia social

2016 ◽  
pp. 355-398
Author(s):  
Natalia CAICEDO CAMACHO
Keyword(s):  
Social Assistance ◽  
Case Law ◽  
The State ◽  
Court Case ◽  
Constitutional Court ◽  
Central State ◽  
Autonomous Communities ◽  
Significant Change ◽  
Management Functions

LABURPENA: Artikulu honetan Estatu zentralaren gastu-ahalmenaren norainokoa aztertzen da gizarte-laguntzaren eremuan. Horretarako, eskumen autonomikoaren garapena deskribatzen da Estatu sozialaren lurralde-deszentralizazioaren esparruan, eta gero azken urteotan diru-laguntzak emateko ahalmenaren erabilerari buruz Konstituzio Auzitegiak jaulkitako jurisprudentzia aztertzen da xeheki. Artikuluan ondorioztatzen da funtsezko aldaketa gertatu dela STC 13 /1992 epaiko diru-laguntzen lurralde-banaketari buruzko irizpideen inguruan. Aldaketa horrek ekarri du ondorio modura, diru-laguntzen deialdiak Espainiako Konstituzioaren 149.1 artikuluko eskumen-tituluetatik banandu eta bereizi egin direla eta laguntzen lurralde-banaketarako irizpideak berrinterpretatu direla ikuspegi zentralista batetik, eta eskumen esklusiboen eremura lekualdatu dela eskumen partekatuentzat finkatuta zegoen araua. Baina, horrez gainera, zentzu zabalago batean, Estatuaren gastuaren bideratzaile izatearen eskumen-funtzioari buruz lehen aplikatzen zen irizpidearen ordez, irizpide zabalagoa, generikoagoa ezarri da, zeinaren arabera araugintza-eginkizunak Estatuari dagozkion eta kudeaketa-eginkizunak, aldiz, autonomia-erkidegoei. Arau hori laguntzaren xede den arloa eskumen partekatukoa edo esklusibokoa den kontuan hartu gabe aplikatzen da. RESUMEN: El presente artículo analiza el alcance del poder de gasto del Estado central en el campo de la asistencia social. Para ello, describe el desarrollo de la competencia autonómica en el marco de la descentralización territorial del Estado social para posteriormente detallar la jurisprudencia del Tribunal Constitucional emitida en los últimos años sobre la utilización del poder del poder subvencional. El artículo concluye que se ha producido un cambio sustancial a los criterios sobre la territorialización de las subvenciones de la STC 13/1992. Este cambio supone la desvinculación de las convocatorias de subvenciones de los títulos competenciales del art. 149.1CE y una reinterpretación de los criterios de territorialización de las ayudas en clave centralista trasladando al campo de las competencias exclusivas la regla fijada para las competencias compartidas. Pero, además desde un sentido más amplio, el criterio de la función de la competencia como orientador de la disposición del gasto del Estado se ha sustituido por un criterio más amplio y genérico, conforme al cual las funciones normativas corresponden al Estado y las funciones de gestión corresponden a las Comunidades autónomas. Esta regla se aplica con independencia de que la materia objeto de la ayuda sea una competencia compartida o exclusiva. ABSTRACT : This article analyzes the scope of the spending power by the Central State within the field of social assistance. To that end, it is described the development of the autonomous competence within the State territorial descentralization in order subsequently to itemize the Constitutional Court case law delivered during the last years regarding the use of the power to subsidize. The article concludes that there has been a significant change in the criteria regarding the territorialization of subsidies as stated by the Constitutional Court judgement 13/1992. This change means the decoupling of the call for subsidies from the powers by art. 149.1 C and a reinterpretation of the territorialization criteria in the field of aids in terms of centralization allocating to the field of the exclusive competences the rule established for the shared competences. But from a broader sense the criteria of the competence as a guiding criteria for the disposal of spending by the State has been substituted for a wider and broader criteria according to whom legal functions belong to the State and management functions to the Autonomous Communities. This rule applies regardless of the field of the aid is a shared or exclusive competence.

scholarly journals Dawn of a new era for permanent life partners: from Volks v Robinson to Bwanya v Master of the High Court

De Jure ◽  
2020 ◽  
Vol 53 ◽  
Keyword(s):  
South Africa ◽  
South African ◽  
Positive Development ◽  
Court Case ◽  
Constitutional Court ◽  
Sex Partners ◽  
New Era ◽  
High Court ◽  
Long Time ◽  
Marital Union

SUMMARY The laws in South Africa pertaining to marital affairs have for a long time developed from a conservative form to a non-conservative one. This can be denoted from the passing of legislation such as the Recognition of Customary Marriages Act 120 of 1998, affording women in customary marriages the same protection as those in civil marriages as well as the Civil Union Act 17 of 2006, allowing same-sex partners to formalise their union. Since the advent of the Constitution it can therefore be concluded that the courts and legislature have worked relentlessly to ensure the equal enjoyment of rights to all South African people. Regardless of the immense efforts to develop this area of law, certain groups still remain unprotected and often rely on piece-meal protection often derived from court decisions. Such groups include heterosexual parties to a permanent life partnership. Although such permanent life partnerships are acknowledged in South Africa, there is no legislative protection with regards to maintenance or inheritance at the dissolution of the union. This is different to formalised unions such as marriage and civil unions with extensive legislation concerning the aftermath of such unions. A plethora of cases suggests that, this position has been challenged many times to no avail. In 2005, the Constitutional Court in Volks v Robinson, held that the distinction between married and unmarried couples could not be held to be unfair as a marriage encompassed legal reciprocal duties which were not present in a non-marital union. Effectively, permanent life partners could not claim maintenance or inheritance from the estate of their deceased partner. In a recent welcomed decision by the High Court, a heterosexual permanent life partner was permitted to inherit from the estate of her deceased partner. This article discusses the Constitutional Court case and the recent High Court case to elicit that South Africa is headed towards positive development with regard to marital unions and those akin to such unions.

Unravelling the Mare’s Nest? The Constitutional Court Interprets the Duty to Exhaust Internal Remedies in the Mining Setting Dengetenge Holdings (Pty) Ltd V Southern Sphere Mining and Development Co Ltd 2014 5 SA 138 (CC)

2017 ◽  
Vol 30 (1) ◽  
pp. 302-316
Author(s):  
Tracy Humby ◽  
Robert Krause
Keyword(s):  
Court Case ◽  
Constitutional Court ◽  
Mining Company ◽  
Court Of Appeal

This Constitutional Court case involved an application by Dengetenge Holdings (Pty) (Ltd)(a junior mining company) for leave to appeal against a decision of the Gauteng North HighCourt setting aside the award of a prospecting right to Dengetenge, and the decision of theSupreme Court of Appeal (SCA) refusing to condone the company’s late filing of its heads of argument in its appeal against the High Court’s decision.

BREACH OF THE OATH AS A BASIS FOR THE CONSTITUTIONAL RESPONSIBILITY OF A JUDGE

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Good Reason ◽  
Legal Responsibility ◽  
Court Case ◽  
Constitutional Court ◽  
Professional Activities ◽  
The Status ◽  
The Law ◽  
Main Basis ◽  
The Right

The article reveals the basic principles of bringing a judge to constitutional responsibility due to violation of the oath as the main basis for this type of responsibility. It has been established that legislative and regulatory support of the procedure and peculiarities of bringing judges to legal responsibility is regulated by the following documents, as the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the High Council of Justice», the Constitution of Ukraine, the Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of 53 People's Deputies of Ukraine on the compliance of the Constitution of Ukraine (constitutionality) with certain provisions of the Law of Ukraine «On the High Council of Justice», the European Charter on the Law “On the Status of Judges”, Conclusion No. 3 of the Consultative Council of European Judges into account of the Committee of Ministers of the Council of Europe on and the rules governing the professional conduct of judges, in particular, issues of ethics, incompatible behavior and impartiality, the Law of Ukraine «On the Prevention of Corruption», the Code of Judicial Ethics. It was found that only the High Council of Justice has the right to dismiss a judge from office in accordance with the procedure and the decision to dismiss the judge from office. It has been proved that systematic neglect of duties, which is by no means compatible with the status of a judge, revealing a judge's inadequacy to his position, serves as a good reason for dismissing a judge from office. It has been determined that the constitutional responsibility of a judge should be understood as constitutional proceedings for conducting investigations and bringing a judge to justice due to his violation of the provisions of the Constitution of Ukraine and other laws. It has been establishedthat the dismissal of a judge from office as a result of his violation of the oath is one of the grounds for bringing the judge to constitutional and legal responsibility. It has been established that the main types of misconduct committed by judges in the context of breaking the oath are: 1) committing such acts (actions) that tarnish their titles and create doubts about the impartiality, objectivity and independence of their professional activities, in the long term affects the vision of honesty and the integrity of the judiciary; 2) their failure to comply with the restrictions and requirements specified in the Law of Ukraine «On the Prevention of Corruption»; 3) deliberately delaying the time limits for the consideration of a court case, determined by legislation; 4) violation of moral and ethical principles of behavior.

Russia's Constitutional Court and a Decade of Hard Cases: A Postscript

2003 ◽  
Vol 28 (3-4) ◽  
pp. 655-678 ◽  
Author(s):  
William Simons
Keyword(s):  
Rule Of Law ◽  
Research Effort ◽  
Court Case ◽  
Constitutional Court ◽  
Reform Era ◽  
The Rule Of Law ◽  
Reform Legislation ◽  
Narrow View ◽  
Court Dispositions ◽  
The One

AbstractMuch attention has been focused on the promulgation of legislation as a bellwether of change in Russia since the beginning of perestroika in the mid-1980s; for a brief period at the beginning of the 1990s, there was even a "war of laws". In the 2000s, legislative activity continues unabated—albeit usually charged with less emotion and devoted to more thorough analyses, if not always wide-ranging discussions, of signifi cant policy issues. The implementation of transition-era legislation is also sharing the limelight in recent years. Dispositions of the USSR Committee of Constitutional Supervision (and, later, of the RF Constitutional Court) are prime examples of a prism through which to view the interpretation and implementation of reform-era legislation in the RF. The outcomes of the controversies resolved by the Court could themselves be a bellwether in ascertaining the degree to which reforms in the Russian legal, political, and economic systems are being anchored in the rule of law. For example, the banning of secret laws from the Russian landscape was the outcome of an early landmark Court case. Yet the hangover of an old policy of only partially disseminating information on the judicial interpretation of Russian legislation still remains. This, in turn, stymies further efforts to cement the pieces of the rule of law puzzle more firmly together. While citizens have been entitled for more than a decade to access the full texts of RF laws, they (or their representatives) can only view a part—albeit one that is far greater than in Soviet times—of the work of the judiciary. This is due to a distinctly narrow view of state acts that, alas, does not encompass the gamut of RF judicial dispositions. So, at the beginning of the 2000s, the RF Constitutional Court still applies a fine-line, technical distinction between its two classes of dispositions: postanovleniia and zakliucheniia , on the one hand (that are subject to mandatory publication), and opredeleniia (that are only selectively published) on the other hand. The use of this approach as a filter, limiting access to judicial information in the RF, is especially remarkable in light of the fact that the use of an analogous practice by the legislative branch has been declared unconstitutional. The Court's approach to accessing judicial information throws, in effect, a mantel of secrecy around a not-insignifi cant category of high-court dispositions. This puts the Court at loggerheads with attempts in other sectors of society to strengthen the evolving rule-of-law regime in Russia. This roadblock notwithstanding, the interpretation and application of reform legislation are not longer hidden from full view owing to a unique compilation of published—as well as unpublished—RF Constitutional Court dispositions from the fi rst decade of its operation. The present postscript outlines the research effort that has produced this compilation; it also argues for the rapid enactment of a full-publication policy at all levels of the RF judicial system.

scholarly journals The primacy and supremacy clauses of European Union Law and their application in the legal order of the Republic of Lithuania

2018 ◽  
Vol 112 ◽  
pp. 303-322
Author(s):  
Pavelas Ravluševičius
Keyword(s):  
European Union ◽  
National Court ◽  
Case Law ◽  
Court Case ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Eu Member States ◽  
The Republic

The primacy and supremacy clauses of European Union law (“EU law”) are to one of the most prevalent issues concerning the relationship between EU law and domestic law of the Republic of Lithuania. It seems that such issues were not definitely settled even when the Treaty of Lisbon amending the Treaty on European Union, which established the European Community. During that period, significant changes were made in EU Member States, regarding the domestic application of the principle of primacy and supremacy of EU law. Lithuanian law has undergone the development in this sphere too.The European Court of Justice (“ECJ”) has developed the meaning of the principle of primacy, which means that European Union law should take precedence over the national law (even over constitutional provisions) and, in case of conflicts between EU law and national law, every national court is obliged to apply the European Union law. The comparative analysis of the Lithuanian Constitutional Court case law shows counter development to the ECJ case law, which may cause the jurisdictional collision of setting aside EU law based on constitutional grounds.The paper includes some relevant examples of application of EU law arising from preliminary ruling procedure under Art. 267 of Treaty on the Functioning of the European Union in the praxis of the Lithuanian Constitutional Court and Lithuanian courts of general and special competences.

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