The Principle of Proportionality

2018 ◽  
Author(s):  
Takis Tridimas
Keyword(s):  
Twentieth Century ◽  
Public Interest ◽  
Early Stage ◽  
Fundamental Principle ◽  
The Rule Of Law ◽  
The Public ◽  
Principle Of Proportionality ◽  
The Individual ◽  
Constitutional Adjudication ◽  
Freedom Of Action

The principle of proportionality is the most oft-invoked and, in terms of its role in constitutional adjudication, the most influential principle of EU law. The principle was developed in continental legal systems, especially in Germany and France, in the twentieth century. Even at an early stage in the development of EEC law, proportionality had already been pronounced by the Court of Justice to be a fundamental principle deriving from the rule of law and requiring in particular that ‘the individual should not have his freedom of action limited beyond the degree necessary in the public interest’.

Zasada szybkości w postępowaniach w sprawach przygotowania i realizacji inwestycji infrastrukturalnych

2020 ◽  
Vol 30 ◽  
pp. 174-188
Author(s):  
Przemysław Ostojski ◽  
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Constitutional Rights ◽  
The Rule Of Law ◽  
The Public ◽  
Constitutional Principle ◽  
Infrastructure Investments ◽  
Principle Of Proportionality ◽  
Administrative Proceedings ◽  
The Right

The article concerns the principle of speed in the proceedings regarding the implementation of infrastructure investments. The analysis of individual legal institutions is aimed at assessing statutory regulations of investment acts in the scope of the principle of speed. The aim of the analysis is to verify the assertion that the implementation of specific law-related rules in special investment documents connected with giving priority to the speed of administrative proceedings followed the constitutional principle of proportionality. As a result of the conducted analysis, it should be stated that the implementation of the principle of speed of proceedings to investment acts does not fundamentally violate the essence of constitutional rights of individuals – including the right to challenge decisions and the right to protect of rightly acquired rights. The legislator limits the principles of transparency, as well as the principle of active participation of the party in administrative proceedings, but does not eliminate these principles. Regardless of this, the legislator infringes in the analyzed Acts the essence of the party’s right to submit an application for temporary protection in administrative proceedings. The legislator violates in a qualified manner – due to the public interest – the rule of law and two-instance, preventing the appeals authority in the course of the instance of repealing the decision in its entirety, if the defect affects only its part concerning the property.

Guarding the Public Interest: England's Coroners and Organ Transplants, 1960–1975

2015 ◽  
Vol 54 (4) ◽  
pp. 926-946 ◽  
Author(s):  
Helen MacDonald
Keyword(s):  
Twentieth Century ◽  
Public Interest ◽  
Spare Part ◽  
Organ Transplants ◽  
Legal Requirement ◽  
The Public ◽  
The Law ◽  
Do So

AbstractFrom the mid-twentieth century, England's coroners were crucial to the supply of organs to transplant, as much of this material was gleaned from the bodies of people who had been involved in accidents. In such situations the law required that a coroner's consent first be obtained lest removing the organs destroy evidence about the cause of the person's death. Surgeons challenged the legal requirement that they seek consent before taking organs, arguing that doing so hampered their quick access to bodies. Some coroners willingly cooperated with surgeons while others refused to do so, coming into conflict with particular transplanters whom they considered untrustworthy. This article examines how the phenomenon of “spare part” surgery challenged long-held conceptions of the coroner's role.

Police Powers of Criminal Investigation: Principle or Pragmatism

1980 ◽  
Vol 11 (3) ◽  
pp. 283-320 ◽  
Author(s):  
Terry Carney ◽  
Judd Epstein
Keyword(s):  
Public Interest ◽  
Criminal Investigation ◽  
The Public ◽  
Police Powers ◽  
Strong Case ◽  
Efficient Detection ◽  
The Individual

This article will examine the divergence between law and practice in criminal investigation by police and consider the degree to which it may contribute to an imbalance between the interests of the individual and the public interest in the efficient detection and investigation of crime. It will be argued that the imprecision of the existing law and the failure by the legislature to accord new, tightly-defined, specific-purpose powers to the police have made a major contribution to the pressure on police to misuse existing (and often more intrusive) powers or to exercise de facto powers not authorised by law. It is contended that this pressure often arises from a desire by police to find a more practical means of attaining agreed community objectives than that provided by the artificial standards of the existing law. A strong case can therefore be advanced in favour of refurbishing police powers to accord (more closely) with present conditions, while at the same time strengthening the safeguards cast around those powers. This article will argue that case.

Should Research Ethics Committees Be Observing the Law or Working by Ethical Principles?

2005 ◽  
Vol 1 (1) ◽  
pp. 23-26 ◽  
Author(s):  
Charles Warlow
Keyword(s):  
Clinical Research ◽  
Research Ethics ◽  
Public Interest ◽  
Ethics Committees ◽  
Unintended Consequences ◽  
Research Ethics Committees ◽  
Individual Interest ◽  
The Public ◽  
The Law ◽  
The Individual

Recent laws, and their interpretation, have made clinical research more difficult to do, and sometimes impossible. Furthermore the results of that research which can be done may even be unreliable. This is certainly against the public interest, and indeed the individual patient interest as well. But ethics committees have to abide by the law and so even though it is surely unethical to work against the public and individual interest that is exactly what ethics committees now have to endorse. The unintended consequences of the new regulations must be reduced by amending the law.

scholarly journals Privatizing Violence: A Transformation in the Jurisprudence of Assault

2012 ◽  
Vol 30 (2) ◽  
pp. 423-448
Author(s):  
Joshua Stein
Keyword(s):  
Criminal Justice ◽  
Justice System ◽  
Small Scale ◽  
Public And Private ◽  
Criminal Offense ◽  
The Rule Of Law ◽  
The Public ◽  
Legal Legitimacy ◽  
Private And Public ◽  
The Individual

Assault is a commonplace crime with uncommon potential for shedding light on the American criminal justice system. It lives on the periphery of American legal historiography, and yet, because of the ubiquity of small-scale violence, it has for centuries been a perennial and pesky nuisance threatening to overwhelm courts everywhere. Perched between private and public, criminal and civil, and bound to questions of governance and the rule of law, assault can no longer be ignored. Because of its nature as both a civil action and criminal offense, assault presents an opportunity to capture the evolving meanings of “public” and “private.” To what extent an assault was “criminal” hinged upon whether the “public” had an interest in the case, a criterion both amorphous and politically charged.1 At the time of William Blackstone's writing in eighteenth-century England, assault was criminal insofar as it constituted a breach of the public peace, an insult to the king, and a threat, by its “evil example,” to the public at large. By the 1850s, much had changed. Two major figures in American criminal justice law, Joel Bishop and Francis Wharton, declared that assault's status as a crime no longer depended upon some ineffable public harm. Rather, it was the individual injury to a member of the public that constituted its chief criminal component. But this individuated logic also meant that, barring sufficiently severe or shocking injury, newly empowered members of the public could be entrusted to sort out matters on their own. This article contends that a changing view of criminal justice—an underlying “public” transformed from a paternalistically governed, impressionable populace to a group of independent persons—gave violence a much wider legal legitimacy.

scholarly journals THE PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEED-INGS AS A GUARANTEE OF ENSURING THE EFFECTIVENESS OF LEGAL PROTECTION. SOME REMARKS

2017 ◽  
Vol 28 (1) ◽  
pp. 9-22
Author(s):  
Joanna Misztal-Konecka
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Legal Protection ◽  
Great Caution ◽  
The Rule Of Law ◽  
The Public ◽  
Civil Proceedings ◽  
The Moment ◽  
Civil Matter

The role of the prosecutor in the legal system is traditionally perceived in the context of performing tasks relating to the prosecution of offences and upholding the rule of law. It is worth mentioning, however, that pursuant to Article 7 sentence 1 of the Code of Civil Procedure the prosecutor may petition to institute proceedings in any civil matter as well as participate in any pending proceedings if he considers his presence necessary to protect the rule of law, citizens’ rights or social interest. While the broad competence range of the prosecutor in civil proceedings has been assessed with high criticism in the literature on numerous occasions, it is with great caution that one should view possible tendencies towards exclusion of the prosecutor as an attendant of proceedings, without affiliation to either party, when the public interest calls for their participation. Especially in the cases where the court notifies the prosecutor of the need to participate in proceedings, one ought to conclude that it is the moment when the principle of effective legal protection becomes most fully realized through equalizing the litigious position of the parties and prevention of the occurrence of a defect which might invalidate the proceedings. The author postulates transforming notification of the need to participate in proceedings served on the prosecutor into summons for attending it.

scholarly journals IN SEARCH OF THE SUBJECTIVE PUBLIC LAW: CONDITIONS FOR PARTICIPATION IN THE ADMINISTRATIVE PROCEDURE

2019 ◽  
pp. 5-14
Author(s):  
Peter Chvosta
Keyword(s):  
Public Interest ◽  
Legal Protection ◽  
The Public ◽  
Legal Provisions ◽  
Public Rights ◽  
Administrative Act ◽  
The Law ◽  
Administrative Jurisdiction ◽  
The Individual ◽  
Public Right

Purpose. The article is devoted to the legal figure of subjective public right in the context of legal protection in administrative matters. Methods. Based on the historical development of administrative jurisdiction in Austria and Germany in the 19th century, the function of the subjective public right is discussed in more detail: When the legislator grants citizens subjective public rights (and thus enforceable claims against the administration), the citizen can assert his or her individual interests before the courts by means of a right of defence against the state. At the same time, this results in an external legal control of the administration (compared to a mere internal administrative control by way of disciplinary measures) and thus promotes the rule of law of administrative action, which is in the public interest. Results. By pursuing his subjective public right, the citizen acting in his own interest indirectly contributes to the correct enforcement of the law. In a sense, he acts as an assistant to the public interest. The granting of a subjective public right also limits the group of persons who can take action against an administrative act, since otherwise anyone could challenge an administrative act. If the legislator has not expressly stipulated in the law which persons are entitled to a subjective public right in which respect, the determination of subjective public rights can be difficult in individual cases: When the law provides for a permit subject to certain conditions, the addressee of an administrative act is necessarily entitled to obtain a permit if the conditions required by law are met. The question is more complex in the case of persons who are not the addressee of an administrative act but who are affected by its effects. In this case, it must be determined by way of interpretation whether the legal provisions whose violation the citizen claims to have violated were passed not only to protect public interests but also, at least, in the interests of individual persons. Only then is there also a subjective public right of the individual to compliance with this provision. Conclusions. The legislator can avoid difficulties of interpretation by means of clear rules on the granting of subjective public rights. In particularly important administrative matters (e.g. approval of infrastructure projects), where the granting of subjective public rights is not sufficient to ensure judicial control of administrative acts, a larger group of persons can be granted party status.

scholarly journals Public interest in immunity: justification for intervention in the early stages of COVID-19 (Preprint)

2020 ◽  
Author(s):  
Yunna Kwan ◽  
Jinhee Lee ◽  
Jun Young Lee ◽  
Keum Hwa Lee ◽  
Sung Hwi Hong ◽  
...  
Keyword(s):  
Infectious Disease ◽  
Public Interest ◽  
Early Stage ◽  
Relevant Information ◽  
Point Of View ◽  
Search Term ◽  
Strong Positive Correlation ◽  
The Public ◽  
The Uk ◽  
Google Search

UNSTRUCTURED Our study aimed to identify the interest and correlation between the proliferation of coronavirus disease 2019(COVID-19), interest in immunity and products that have been discussed to confer an enhancement of immunity, while suggesting the measures of intervention to be undertaken from a health and medical point of view. To assess the level of public interest in infectious disease during the initial days of the outbreak of COVID-19, we extracted Google search data from the past year based on the date of 15th of March 2020, which is approximately two months after the COVID-19 outbreak. In order to determine whether the public became interested in the immune system, we selected ‘coronavirus’, ‘immune’, ‘vitamin’ as our final search term. The increase in cumulative confirmed cases of coronavirus after January 20 had a strong positive correlation with search volumes for the terms ‘coronavirus’ (R = 0.786, P < .0001), ‘immune’ (R = 0.745, P < .0001) and ‘vitamin’ (R = 0.778, P < .0001), and the variables were all mutually statistically significant. Moreover, these correlations were confirmed on a country-basis when we restricted analyses to the US, the UK, Italy, and Korea. Our findings revealed that increases in search volumes for ‘coronavirus’ and ‘immune’ preceded the actual occurrences of confirmed cases. Our study implicates that during the initial phase of the COVID-19 crisis, the public’s desire and actions to strengthen their own immune systems were enhanced. Further, in the early stage of a pandemic there is a high potential of social media to inform the public about potentially helpful measures to prevent the spread of an infectious disease and provide relevant information about immunity and thereby increase the knowledge.

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