Constitutional Judicial Review and International Obligations of Criminalization

2021 ◽  
pp. 1-19
Author(s):  
Beatrice I. Bonafè
Keyword(s):  
Criminal Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Obligations ◽  
Constitutional Constraints ◽  
Constitutional Judicial Review ◽  
Law Making

Abstract The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.

Features of Judicial Practice in the Russia as the Basis of Precedent

2020 ◽  
pp. 98-106
Author(s):  
V. V. Levin
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Armed Forces ◽  
Case Law ◽  
Constitutional Court ◽  
Judicial Practice ◽  
The Russian Federation ◽  
Law Making

The article is devoted to the analysis of judicial practice as the basis of law-making activity in the Russian Federation, on the basis of which it is possible to create a precedent. Case law in Russia is Advisory in nature and is not mandatory for law enforcement practice. Courts use the signs of case law in their decisions in the reasoned part. Signs of case law is a ruling of the constitutional court of the Russian Federation and regulations of the armed forces of the Russian Federation.

scholarly journals Constitutional and administrative paradigms in judicial control over EU high and low politics

2017 ◽  
Vol 9 (2) ◽  
pp. E-240-E-267
Author(s):  
Pola Cebulak
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Fundamental Rights ◽  
Constitutional Theory ◽  
Two Dimensional ◽  
Judicial Control ◽  
Policy Domain ◽  
External Relations ◽  
Constitutional Judicial Review ◽  
High Politics

Abstract This article explores the particular tensions surrounding judicial review in EU external relations. The tensions are classified using a two-dimensional framework. Firstly, a distinction based on policy domains of high and low politics, which is derived from constitutional theory, and external to the CJEU; and secondly a distinction based on legitimizing paradigms of administrative (EU as effective global actor) or constitutional (judicial review as guarantee of fundamental rights) in character and determined by the Court itself. Even though one would expect a dominance of the administrative paradigm in the domain of high politics, the Court uses both the administrative and the constitutional paradigm in its external relations case-law. The decision on which of these becomes the guiding frame seems to depend more on the policy domain, and be made case by case, which suggests politically sensitive adjudication, rather than a coherent approach to legitimizing the nascent judicial review in EU external relations.

I The Constitutional Court, 1 The Historical Development of Italian Constitutional Adjudication

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
Twentieth Century ◽  
Judicial Review ◽  
Historical Development ◽  
Constitutional Court ◽  
Constitutional Adjudication ◽  
Constitutional Judicial Review ◽  
The Way

One of the remarkable facts of constitutional judicial review in Italy is the way in which it was grafted onto a tradition of law that had been very inhospitable to any such practice prior to the mid-twentieth century. The development of this unprecedented institution and the factors that contributed to its success not only assist the reader to understand the subsequent contours and character of the Constitutional Court but also provide a number of very useful insights and lessons for other jurisdictions seeking to establish or consolidate new and fragile systems of constitutional adjudication. This chapter traces that history and identifies those features.

scholarly journals JUDICIAL ACTIVISM OR SELF-RESTRAINT : SOME INSIGHT INTO THE INDONESIAN CONSTITUTIONAL COURT

Yuridika ◽  
2018 ◽  
Vol 33 (1) ◽  
pp. 145
Author(s):  
Radian Salman ◽  
Sukardi Sukardi ◽  
Mohammad Syaiful Aris
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
Power Relationship ◽  
Judicial Activism ◽  
Conceptual Approach ◽  
Judicial Control ◽  
The One ◽  
Law Making

The Constitutional Court of Republic of Indonesia is centralized judicial review institution which implements a posteriori and abstract control. Constitutional court decision often politically sensitive and involve important issues. On the one hand handing down strong decisions that uphold important constitutional principles can bring great benefits to citizens and can strengthen support for democracy but on the other hand, strong role of the court in judicial review tends to encroach increasingly on the territory of the law making institution. This article examines the decision of constitutional court in the framework of a tension between constitutionalism and democracy, especially from theoretical or conceptual approach. As result of examining its decisions, Indonesian Constitutional Court may reflect two characters; judicial activism as characterized by acting as law-maker and using policy in judicial decisions and/ or judicial self-restraint.  Recent  Indonesian experience shows that judicial review of legislation is not a simply of judicial control over law-making institution, as it brings  tension in the context of power relations in the scheme of separation of power. Relationship between the court and legislature, in respective of judicial review, will culminate in the philosophy of the judiciary. However, as constitutionalism and democracy are virtue, decisions of the Constitutional Court in judicial review should create mode of self-limitation within the framework of the principle of separation of powers.

scholarly journals A Commentary: the Inadmissibility of Non-Indonesian Citizens in Judicial Review before the Indonesian Constitutional Court

2018 ◽  
Vol 3 (2) ◽  
pp. 208
Author(s):  
Bayu Mahendra
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Constitutional Court ◽  
Legal Standing ◽  
Review Mechanism ◽  
Legal Consequences

The Constitutional Court of Indonesia, in its judgment No 2-3/PUU—V/2007, ruled that non-Indonesian citizens have no legal standing to file judicial review before the Court. In determining the legal standing, the Court rejected applicants’ constitutional loss which should actually serve as the substantial examination in judicial review but rather addressed this question on the basis of applicant’s citizenship. This inadmissibility ruling, however, raises question on what legal standing actually mean in the context of judicial review. This paper reviews the Court’s consideration in determining legal standing status and examines future legal consequences of such reasoning. By revisiting the substance of legal standing and judicial review derived from the 1945 Constitution, relevant Statutes, Court’s practices and case law, as well as the dissenting opinion of the judges in this case, it is found that the Court overruled the substance to procedural examination on the basis of citizenship and therefore failed to address the actual question of legal standing. This paper concludes that the Court’s reasoning has abandoned the constitutional loss as the very substance of legal standing and to which amounts to immunity of legal standing provision from a judicial review. Consequently, non-Indonesian citizens will never be recognized in judicial review mechanism before the Indonesian Constitutional Court.

scholarly journals Prospect of Judicial Preview in the Constitutional Court Based on the Construction of Constitutional Law

2020 ◽  
Vol 8 (3) ◽  
Author(s):  
Diya Ul Akmal ◽  
Fatkhul Muin ◽  
Pipih Ludia Karsa
Keyword(s):  
Judicial Review ◽  
Constitutional Law ◽  
Preventive Measure ◽  
State Institution ◽  
The State ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Legislative Body ◽  
Law Making

AbstractThe Constitutional Court is a state institution that has the authority to reviewing laws against the Constitution (Judicial Review). Several times in issuing its decisions, the Constitutional Court has acted as a Positive Legislator. The potential for a legal vacuum as the implication of revoking a law is large. and also the slow formation of laws by the legislative body (DPR) and the lack of quality of regulations. The current law making does not pay attention to legal ideals based on Pancasila so that the resulting legal products lose their meaning. This has resulted in many people whose constitutional rights have been violated. The state should be present to give full constitutional rights to its citizens. The Constitutional Court needs an additional authority to maintain the supremacy of the constitution. additional authority as a preventive mechanism is Judicial Preview. The French state places Judicial Preview as an authority of the Constitutional Council. Austria and Germany apply Judicial Preview as a preventive measure for losses that can occur if the Draft Law is passed. A renewal of the Constitutional Law to perfect existing ones makes the prospect of Judicial Preview in Indonesia an Urgency for immediate implementation.Keywords: Constitutional Court, Authority, Judicial Preview AbstrakMahkamah Konstitusi merupakan lembaga negara yang memiliki kewenangan pengujian Undang-Undang terhadap Undang-Undang Dasar (Judicial Review). Dalam mengeluarkan putusannya Mahkamah Konstitusi beberapa kali bertindak sebagai Positif Legislator. Potensi terjadinya kekosongan hukum sebagai implikasi dicabutnya suatu Undang-Undang sangatlah besar. Ditambah dengan lambatnya pembentukan Undang-Undang oleh lembaga legislatif (DPR) serta kualitas peraturan yang kurang. Pembuatan Undang-Undang saat ini tidak memperhatikan cita hukum yang berakar pada Pancasila sehingga produk hukum yang dihasilkan kehilangan maknanya. Hal ini mengakibatkan banyak masyarakat yang dilanggar hak konstitusionalnya. Negara seharusnya hadir untuk memberikan hak konstitusional secara penuh kepada warga negaranya. Untuk mencegah hal tersebut maka Mahkamah Konstitusi membutuhkan suatu kewenangan tambahan untuk menjaga tegaknya supremasi konstitusi. Kewenangan tambahan sebagai mekanisme preventif tersebut berupa Pengujian Rancangan Undang-Undang (Judicial Preview). Perancis menempatkan Judicial Preview sebagai kewenangan dari Constitutional Council. Austria dan Jerman juga memberlakukannya sebagai tindakan pencegahan. Pembangunan Hukum Konstitusi untuk menyempurnakan yang sudah ada menjadikan prospek Pengujian Rancangan Undang-Undang di Indonesia menjadi urgensi untuk segera diterapkan.Kata Kunci: Mahkamah Konstitusi, Kewenangan, Judicial Preview

scholarly journals Constitutional principles in public administrator's decision-making under the case law of the Supreme Administrative Court of Lithuania

2018 ◽  
Vol 2 (1) ◽  
pp. 109-115
Author(s):  
Ieva Deviatnikovaitė
Keyword(s):  
Decision Making ◽  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Constitutional Court ◽  
Constitutional Principle ◽  
Family Names ◽  
Administrative Courts ◽  
The Republic

This paper serves few purposes. First, it examines the principles of public administration in Lithuania. Good administration principle is analysed as constitutional principle relying on the case law of the Supreme Administrative Court of Lithuania. Second, it explores impact of the decisions of Constitutional Court of the Republic of Lithuania to the contemporary judicial review of Lithuanian administrative courts. Therefore, one of the latest rulings of the Supreme Administrative Court of Lithuania related to the spelling of names and family names in the passports of citizens of the Republic of Lithuania will be reviewed.

La place de la coutume internationale en droit public français

2013 ◽  
Vol 12 (2) ◽  
pp. 267-271 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Case Law ◽  
Public Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Treaty ◽  
Public International Law ◽  
Customary International Law ◽  
The Status

Abstract Bernard Stirn’s presentation examines the status of international custom in French public law. He notes that international custom may be considered as covered by the reference in the preamble of the Constitution to the rules of public international law. He underlines the increased effects of international custom in the French domestic legal order as enshrined in the latest developments of the case-law of the Conseil d’Etat. He stresses that whilst French administrative judges may set aside a law in the event of a conflict with the provisions of an international treaty, they do not possess a similar power in the case of a conflict with a rule of customary international law. He concludes by citing cases in which the French constitutional court has made reference to international custom.

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