The development of the right of self-realisation in the Netherlands

2016 ◽  
Vol 2016 (3) ◽  
Author(s):  
Lisanne Groen
Keyword(s):  
The Netherlands ◽  
Policy Instruments ◽  
Case Law ◽  
Land Policy ◽  
Historical Overview ◽  
Legal Provision ◽  
The Right

AbstractThe term “self-realisation” is not defined in any Dutch legal provision, but has emerged from case law based on the Expropriation Act. This article describes the development of the right of self-realisation in the Netherlands. In addressing this subject, the article presents a brief historical overview of the Dutch land policy and land policy instruments. In addition, Royal Decrees and case law about the right of self-realisation are discussed.

scholarly journals A pragmatic attitude: The right to silence in the Netherlands

2021 ◽  
pp. 203228442110283
Author(s):  
Peggy ter Vrugt
Keyword(s):  
The Netherlands ◽  
Case Law ◽  
Digital Data ◽  
Legal Provisions ◽  
Right To Silence ◽  
Eu Directives ◽  
The Right ◽  
Pragmatic Attitude

This article examines the workings of the right to silence in a system, which retains a large number of the original ‘inquisitorial’ elements. The right to remain silent was and is a highly contested issue in the Netherlands, which is reflected in the fragmented and often contradictory nature of the respective legal provisions. The Netherlands has diligently implemented the relevant EU Directives and the ECtHR case law in legislation and/or through case law, including the case law on adverse inferences. However, tensions with the right to silence arise indirectly through legislative provisions and case law. Relevant examples are the provisions on interrogative pressure, on the use of suspects’ statements made before invoking the right to silence and on the provision of access to digital data (such as phone passwords) by suspects for the purposes of investigation.

Finding a balance between equal treatment, transparency, and legal certainty when allocating scarce authorisations

2020 ◽  
Vol 13 (2) ◽  
pp. 33-53
Author(s):  
Annemarie Drahmann
Keyword(s):  
The Netherlands ◽  
Case Law ◽  
Transitional Period ◽  
Equal Treatment ◽  
Legal Certainty ◽  
Allocation Procedure ◽  
Definition Of ◽  
The Right ◽  
Council Of State ◽  
Right Of Property

The Dutch Council of State recently ruled that potential applicants should have the right to compete in a transparent procedure when scarce authorisations are allocated. This right to compete is based on the Dutch principle of equality, and is inspired by the European principles of equal treatment and transparency. Until this ruling, most scarce authorisations in the Netherlands were granted for an indefinite period of time, with no transparent allocation procedure. The question which follows is: should these scarce authorisations be withdrawn, or would this be contrary to the principle of legal certainty? By looking at the definition of a scarce authorisation and the development of the principles under EU, ECHR and Dutch case law, I conclude that competent authorities are allowed to withdraw the old scarce authorisations ex officio after a transitional period or payment of compensation. However, in my opinion, competent authorities are not obliged to withdraw old scarce authorisations, since old scarce authorisations cannot be amended substantially and therefore will become available in due time. In this way, old scarce authorisations remain intact for a longer period of time and, therefore, the infringement of the right of property is reduced. In other words, in the end, competent authorities should be allowed to decide what the best option is: either (1) withdrawing the authorisations ex officio after a transitional period or payment of compensation or (2) awaiting a request to amend the authorisation – with due regard to the circumstances of the case.

The adaptation of design thinking in auditing

2019 ◽  
Vol 2 (1) ◽  
Author(s):  
Linda MEIJER-WASSENAAR ◽  
Diny VAN EST
Keyword(s):  
The Netherlands ◽  
Design Thinking ◽  
Public Organizations ◽  
Design Framework ◽  
The Right ◽  
The Way

How can a supreme audit institution (SAI) use design thinking in auditing? SAIs audit the way taxpayers’ money is collected and spent. Adding design thinking to their activities is not to be taken lightly. SAIs independently check whether public organizations have done the right things in the right way, but the organizations might not be willing to act upon a SAI’s recommendations. Can you imagine the role of design in audits? In this paper we share our experiences of some design approaches in the work of one SAI: the Netherlands Court of Audit (NCA). Design thinking needs to be adapted (Dorst, 2015a) before it can be used by SAIs such as the NCA in order to reflect their independent, autonomous status. To dive deeper into design thinking, Buchanan’s design framework (2015) and different ways of reasoning (Dorst, 2015b) are used to explore how design thinking can be adapted for audits.

The right to appeal to the European Court of Human Rights

2020 ◽  
Author(s):  
Yuliya Samovich
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Regulation ◽  
The European Union ◽  
Educational Organizations ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Procedure ◽  
The Right ◽  
Judicial Protection

The manual is devoted to making individual complaints to the European Court of human rights: peculiarities of realization of the right to appeal, conditions of admissibility and the judicial procedure of the European Court of Human Rights. The author analyses some “autonomous concepts” used in the court's case law and touches upon the possibility of limiting the right to judicial protection. The article deals with the formation and development of the individual's rights to international judicial protection, as well as the protection of human rights in universal quasi-judicial international bodies and regional judicial institutions of the European Union and the Organization of American States. This publication includes a material containing an analysis of recent changes in the legal regulation of the Institute of individual complaints. The manual is recommended for students of educational organizations of higher education, studying in the areas of bachelor's and master's degree “Jurisprudence”.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

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.

Formation of Contract and Third Parties in Cambodia

2018 ◽  
Author(s):  
Ly Tayseng
Keyword(s):  
Academic Writing ◽  
Case Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
Contract Formation ◽  
The Law ◽  
The Right ◽  
Formal Requirements

This chapter gives an overview of the law on contract formation and third party beneficiaries in Cambodia. Much of the discussion is tentative since the new Cambodian Civil Code only entered into force from 21 December 2011 and there is little case law and academic writing fleshing out its provisions. The Code owes much to the Japanese Civil Code of 1898 and, like the latter, does not have a requirement of consideration and seldom imposes formal requirements but there are a few statutory exceptions from the principle of freedom from form. For a binding contract, the agreement of the parties is required and the offer must be made with the intention to create a legally binding obligation and becomes effective once it reaches the offeree. The new Code explicitly provides that the parties to the contract may agree to confer a right arising under the contract upon a third party. This right accrues directly from their agreement; it is not required that the third party declare its intention to accept the right.

The Old Order Changeth, Yielding Place to the New (Murli Manohar Joshi’s Tenure)

2018 ◽  
Author(s):  
R.V. Vaidyanatha Ayyar
Keyword(s):  
Public Policy ◽  
Case Law ◽  
Theoretical Explanation ◽  
Educational Institutions ◽  
Original Intent ◽  
Policy Problem ◽  
Old Order ◽  
Reinforcing Factors ◽  
The Right

This chapter elaborates the shifting case law over the 24 year period from 1982 to 2006 in regard to the right of private individuals and organisations to establish educational institutions, the regulation of admissions to private-unaided institutions (self-financing institutions), and the regulatory power of AICTE. It offers a theoretical explanation of these shifts by elaborating two major reinforcing factors. The first is the adoption of an interpretational philosophy that legitimates judges going beyond the express wording and original intent of Constitution makers, discerning the purpose underlying a constitutional provision, and applying the purpose so discovered to rectify failures of public policy and governance types. The second factor is the inbuilt trait to expand as a result of a generous policy of admitting appeals. Given that judges differ considerably in the judicial philosophy they hold, and their perception of policy problem and solutions case law has bene fluid, creating uncertainty for institutions which are regulated as well as regulators like the AICTE.

scholarly journals Environmental governance: Broadening ontological spaces for a more livable world

2021 ◽  
pp. 251484862110185
Author(s):  
Walker DePuy ◽  
Jacob Weger ◽  
Katie Foster ◽  
Anya M Bonanno ◽  
Suneel Kumar ◽  
...  
Keyword(s):  
Indigenous Peoples ◽  
Environmental Governance ◽  
Policy Instruments ◽  
Self Determination ◽  
Ontological Pluralism ◽  
Cognitive Justice ◽  
Challenges And Opportunities ◽  
United Nations Declaration ◽  
The Right ◽  
Land Water

This paper contributes to global debates on environmental governance by drawing on recent ontological scholarship to ask: What would it mean to ontologically engage the concept of environmental governance? By examining the ontological underpinnings of three environmental governance domains (land, water, biodiversity), we find that dominant contemporary environmental governance concepts and policy instruments are grounded in a modernist ontology which actively shapes the world, making certain aspects and relationships visible while invisibilizing others. We then survey ethnographic and other literature to highlight how such categories and their relations have been conceived otherwise and the implications of breaking out of a modernist ontology for environmental governance. Lastly, we argue that answering our opening question requires confronting the coloniality woven into the environmental governance project and consider how to instead embrace ontological pluralism in practice. In particular, we examine what taking seriously the right to self-determination enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) could mean for acknowledging Indigenous ontologies as systems of governance in their own right; what challenges and opportunities exist for recognizing and translating ontologies across socio-legal regimes; and how embracing the dynamism and hybridity of ontologies might complicate or advance struggles for material and cognitive justice.

Does the Injunction Gap Violate Implementers’ Fair Trial Rights Under the ECHR?

2020 ◽  
Author(s):  
Léon E Dijkman
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fair Trial ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
The Subject ◽  
The Right ◽  
Federal Supreme ◽  
Validity Of A Patent

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.

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