scholarly journals Expression of opinion through Acts. A brief analysis of the Hungarian Constitutional Courts practice

Author(s):  
Szabolcs Stock

The aim of the article is to present how one can excercise their freedom of expression through acts. I focus ont the decisions of the Hungarian Constitutional Court, the European Court of Human Rights and the U. S. Supreme court. I analyze these decisions, and compare the fundamental rights that can collide, such as freedom of expression versus the right to property, which one should prevail when they come into collision. I also study how one can decide, whether the act should fall within the protected circle of the freedom of expression, or it should be penalized as a crime, or misdemeanor.

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.


Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 51-59

The paper addresses the basic rights and freedoms guaranteed by the Constitution of Georgia, in particular, issues related to personal data. The development of information technology has had a significant impact on the dangers of illegal processing of personal data. The European Court of Human Rights considers the inviolability of private life as a precondition for human autonomy, independent development and protection of human dignity. According to the norms of international law, the right to respect for private life is recognized as one of the most important and fundamental rights, the protection of which is indicated by the legislation of Georgia. The aim of the paper is to analyze the legislation and practice of police law in the field of protection of the right to privacy and to offer relevant recommendations, taking into account the standards set by European and national courts. Human rights legislation must ensure the protection of all human beings against the abuse of state power. Interference with rights must be based on the principle of proportionality. The use of policing should not pose an excessive threat of fundamental human rights violations. Interference with a particular right must be done under principle of proportionality to achieve a certain public good. In clarifying the issue of alleged violation of the right, special attention should be paid to the severity and probability of the expected threat to legal good. The Constitution of Georgia, EU and Council of Europe data protection standards, national legislation, as well as the case law of the European Court of Human Rights and the National Constitutional Court are analyzed around the topic. In addition, the reports of the State Inspector, the Public Defender and the relevant scientific literature are used to study the above issues.


2019 ◽  
Vol 1 (2) ◽  
pp. 58-83
Author(s):  
Janusz Roszkiewicz

This article concerns the right to the protection of religious feelings as a value which justifies a restriction of freedom of expression. The right to the protection of religious feelings can be protected by three methods: civil, penal and administrative. The issue is discussed from the point of view of the Constitution of the Republic of Poland and the European Convention on Human Rights, with particular emphasis on the case-law of the Polish Constitutional Court and the European Court of Human Rights in Strasbourg.


2019 ◽  
Vol 9 (2) ◽  
pp. 187-201
Author(s):  
Giulia Angiolini

The purpose of this paper is to try to analyse the Italian regulation of accused persons’ remote participation in criminal proceedings. The interest in this matter arises from the suspected frictions of the provisions at hand with fundamental rights to be guaranteed for a fair trial. These suspicions, aroused right after the introduction of the institute in Italian law, have been increased by the recent reform of the discipline of remote participation, and they become even clearer after a comparison of Italian regulation with those of other European Countries. Hence, an inescapable question occurs: will the European Court of Human Rights and the Italian Constitutional Court save the new regulation as they did with the previous one?


2017 ◽  
Vol 1 (100) ◽  
pp. 441
Author(s):  
María del Mar Navas Sánchez

Resumen:Este artículo aborda el probablemente más controvertido supuesto relativo a la relación dialéctica entre las libertades de expresión e información y el derecho fundamental a la propia imagen. El que tiene como titular de este último derecho a quien puede ser considerado, en general, como un personaje público. Lo hace, además, desde una doble perspectiva. Por un lado, se muestra la evolución experimentada en el régimen jurídico del derecho a la propia imagen de este tipo de personas desde que en 1978 y de manera novedosa nuestra Constitución reconociera por vez primera el derecho a la propia imagen comoun derecho fundamental autónomo y diferenciado de la intimidad en el artículo 18.1 CE hasta nuestros días. Se trata de un proceso que ha venido marcado por varios hitos: la aprobación en 1982 de una norma (la Ley Orgánica 1/1982, de 5 de mayo, de protección civil del derecho al honor, a la intimidad y a la propia imagen) en la que el legislador establece pautas muy concretas acerca del modo en que han de resolverse este tipo de conflictos; la intensidad con la que esta Ley ha condicionado la jurisprudencia de los jueces y tribunales de la jurisdicción ordinaria, particularmente del Tribunal Supremo; y, finalmente, el importante papel desempeñado por la jurisprudencia del Tribunal Constitucional que, prescindiendo de las prescripciones legislativas y operando conforme a categorías constitucionales, ha terminado por erigir, en un proceso que, a su vez, hemos diferenciado en dos etapas, al interés público presente en las imágenes controvertidas, en el elemento decisivo para resolver este tipo de conflictos. Pero por otro, además, se presta especial atención a las recíprocas relaciones que a propósito de este supuesto se han establecido a lo largo de estas décadas entre las jurisprudencias de los Tribunales Constitucional,  Supremo y de Estrasburgo. En este sentido, nos ha parecido especialmenteinteresante fijarnos no solo en el modo en que el Tribunal Constitucional se ha servido del canon europeo (art. 10.2 CE) para construir su propia doctrina sobre el derecho fundamental a la propia imagen de los personajes públicos, sino también y muy particularmente, en la forma en que esta doctrina del Tribunal Constitucional ha sido seguida o no por el Tribunal Supremo y, por tanto, en el modo en que este último se ha sentido vinculado, si es que lo ha hecho, a la misma, dando así cumplimiento a su obligación constitucional (art. 5.1 LOPJ).Summary:1. Introduction. 2. The little, but adequate, express influence of the european canon in the first constitutional case law on the fundamental right to own´s image. 3. The fundamental right to their own image of public figures in the constitutional case law prior to STC 19/2014. Its almost null follow-up by the supreme court. 4. The fundamental right to their own image of public figures in the latest constitutional case law. Its —now yes— reception by the supreme court. 5. The relationship of constitutional case law with that of the European Court of Human Rights on this specific right, seen through STC 19/2014. 6. Conclusions.Abstract:This paper tackles the probably more controversial case concerning the dialectical relation between the freedoms of expression and information and the fundamental right to the own image. The one that refers to so-called «public figures». It does so from a dual perspective. On the one hand, it shows the evolution experienced in the right to their image of this type of people since Spanish Constitution, in 1978, recognized for the first time the right to own image as a fundamental right autonomous and different from the right to a private life (art. 18.1) to the present day. This is a process that has been marked by several landmarks: the adoption in 1982 of a rule (Organic Law 1/1982, of May 5, on civil protection of the right to reputation, privacy and own image) inwhich the legislator lays down very specific guidelines as to how such conflicts should be resolved; the intensity with which this Law has conditioned the case law of judges and courts of ordinary jurisdiction, particularly the Supreme Court; and finally, the important role played by the case law of the Constitutional Court, which, regardless of the legislative requirements and taking constitutional categories as references, has finally established, in a process that we have differentiated in two stages, the public interest of the images (or, in other words, the contribution made by photos to a debate of general interest) in the decisive element to solve this type of conflicts. But on the other hand, special attention is also paid to the reciprocal relations that have been established over these decades among the case law of the Constitutional, Supreme and Strasbourg Courts. On this regard, we have found particularly interesting to look not only at the way in which the Constitutional Court has used the jurisprudence of the European Court of Human Rights (Article 10.2 Spanish Constitution) to establish its own doctrine on the fundamental right to their image of public figures, but also, especially, in the way in which this doctrine of the Constitutional Court has been followed or not by the Supreme Court and therefore if the latter has fulfilled its constitutional obligation (Article 5.1 Organic Law of the Judiciary).


2021 ◽  
pp. 7-20
Author(s):  
Adam Szymacha

The aim of the article: The presented study concerns the problem of violations of fundamental rights caused by the law regulation contained in art. 27c of the Corporate Income Tax Act in Poland. This regulation provides obligation to publish information about introduced tax strategies. Yet, it may endanger many human rights and this article focuses on two of them – the right to remain silent, and the right of privacy. The aim of this article is to make an analysis of the standards presented by the Court of Justice of the European Union and the European Court of Human Rights. Additionally, the standard presented by the Polish Constitutional Court is presented. Methodology: To decode these standards the comparative law method is used. Especially the case laws of these courts are presented and additionally, they are completed by the comparison of the acts that concern similar law institutions but come from different lawmakers. Results of the research: The results of the study do not provide a clear answer. However, they do allow for an approximation of the issue of possible violations of fundamental rights by the analyzed regulation. It is very likely that the analyzed regulation violates the right to remain silent and it is even close to certainty that the analyzed laws violate the right to privacy. The problem is not only the interference in these rights, but in its character as well. Under certain circumstances, interference with fundamental rights is acceptable but must be proportionate. Examined laws are only explained in terms of budgetary balance and the academic world points out that the purpose of this type of regulation is mainly of administrative convenience. This is far too little to consider this interference with fundamental rights imperative.


Author(s):  
Yaroslav Skoromnyy ◽  

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».


2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.


Author(s):  
Guido Raimondi

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.


Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 620-644
Author(s):  
Tamás Korhecz

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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