scholarly journals Hak Asasi Manusia Dalam Kerangka Negara Hukum: Catatan Perjuangan di Mahkamah Konstitusi

2016 ◽  
Vol 4 (1) ◽  
Author(s):  
Andi Muhammad Asrun
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Constitutional State ◽  
Setting Mechanism ◽  
The One ◽  
Individual Human

Abstract: Human rights on the one hand by the concept of natural law is an inherent right of every individual human being since birth, but on the other hand the legality of human rights must be shaped by the flow of positivism. The debate over whether human rights should be stipulated in the constitution also influence the discussion of the UUD 1945. Finally, the UUD 1945 amendments regulate the basic rights of citizens more fully starts from the premise that human rights protection is an important element in the concept of a constitutional state. Incorporated therein also setting mechanism of "judicial review" in the Constitutional Court as a means to avoid any legislation contrary to the fundamental rights of citizens as guaranteed in the constitution. Abstrak: Hak Asasi Manusia Dalam Kerangka Negara Hukum: Catatan Perjuangan di Mahkamah Konstitusi. Hak asasi manusia pada satu sisi menurut konsep hukum alam adalah suatu hak yang melekat pada setiap individu manusia sejak dilahirkan, tetapi pada sisi lain hak asasi harus bentuk legalitas menurut aliran positivisme. Perdebatan apakah hak asasi manusia harus diatur dalam konstitusi atau tidak perlu dimuat dalam konstitusi juga mewarnai pembahasan UUD 1945. Amandemen UUD 1945 pasca berakhirnya 32 tahun Pemerintahan Orde Baru di bawah Suharto membawa perubahan significant UUD 1945. Pasca amandemen UUD 1945, konstitusi mengatur secara umum hak warganegara secara lebih lengkap. Perlindungan hak asasi manusia merupakan satu elemen penting dalam konsep negara hukum. Pasca amandemen konstitusi, UUD 1945 mengatur hak-hak dasar warganegara yang lebih lengkap bertitik tolak dari pemikiran bahwa perlindungan hak asasi manusia merupakan satu elemen penting dalam konsep negara hukum. UUD 1945 pasca amandemen memasukkan pengaturan hak warga negara lebih rinci serta mekanisme “judicial review” di Mahkamah Konstitusi sebagai sarana untuk menghindari adanya peraturan yang bertentangan dengan hak-hak dasar warganegara sebagaimana dijamin dalam konstitusi. DOI: 10.15408/jch.v4i1.3200

scholarly journals KEABSAHAN ALAT BUKTI ELEKTRONIK PASCA PUTUSAN MAHKAMAH KONSTITUSI NO.20/PUU-XVI/2016 DALAM PRESPEKTIF CRIMINAL JUSTICE SYSTEM

2017 ◽  
Vol 5 (4) ◽  
pp. 677
Author(s):  
Erma Lisnawati
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Justice System ◽  
The State ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
Electronic Evidence ◽  
Rights Protection ◽  
Electronic Transactions ◽  
Article 5

Indonesia is a state of law that upholds of human rights. In the state of law, there is a human rights protection by the state including the privacy of rights. It is referred judicial review of Act No. 11 of 2008 on Information and Electronic Transactions, of Article 5 Paragraph (2). To protect the privacy of recording and wiretapping conducted illegally. The Constitutional Court has been issued a ruling of the Constitutional Court No.20/PUU-XVI/2016 which imposes limits on how electronic evidence retrieval and also who is allowed to submit as an evidence in court. The court ruling was appropriate given the absence of norms regulating the procedures for the acquisition and delivery of electronic evidence. In a special lex such as criminal acts Corruption, Money Laundering and Terrorism Crime and Crime and Electronic Information only governs the kinds of electronic evidence alone, as well as the Code of Criminal Law.Indonesia adalah Negara hukum yang menjunjung tinggi hak asasi manusia. dalam Negara hukum, ada perlindungan hak asasi manusia oleh Negara, termasuk hak pribadi. Undang-undang Nomor 11 tahun 2008 tentang Informasi dan Transaksi Elektrokni, Pasal 5 Ayat (2) telah diajukan judisial review pada Mahkamah Konstitusi. Mahkamah Konstitusi telah mengeluarkan putusan Mahkamah Konstitusi Nomor 20/PUU-XVI/2016, yang memberikan batasan tentang cara pengambilan alat bukti elektronik yang diperkenankan untuk diajukan dalam proses persidangan. Hal ini, sudah tepat mengingat tidak adanya norma yang mengatur tentang cara perolehan alat bukti elektronik dan siapa yang berhak mengajukan alat bukti elektronik tersebut ke pengadilan. Dalam beberapa undang-undang khusus pedoman tentang alat bukti elektronik hanya mengatur mengenai tindak pidana khusus saja seperti pada Tindak Pidana Korupsi, Tindak Pidana Pencucian Uang, Tindak Pidana Terorisme dan Tindak Pidana Informasi dan Transaksi Elektronik.

scholarly journals Problems of enforcement of the right to human dignity in Ukraine

2020 ◽  
pp. 160-164
Author(s):  
Heorhii Moisei
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Central Place ◽  
Constitutional Court ◽  
Human Right ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Constitutional State ◽  
Federal Constitutional ◽  
The Right

The article examines the problems of enforcement of the right to human dignity in Ukraine. It is emphasized that the modernmodel of realization and protection of fundamental human rights and freedoms is an integral attribute for sustainable development ofsociety, and the right to dignity as a determining human right occupies a central place in the system of constitutional law.A special attention is drawn on the double dimension of human dignity in the Constitution of Ukraine, its significance and specialplace in the system of constitutional law.The legal views of the Constitutional Court of Ukraine in terms of knowledge and substantiation of human dignity, its key rolein the development of the human rights protection system, the tendency to change approaches to the interpretation of this concept overthe past 20 years have been analyzed.An attention is also focused on the inexpediency of using a positivist approach during interpretation of such a right category ashuman dignity.The author takes up the position that understanding the right to human dignity is essential to the development of natural legaldoctrine of human rights.The problem of exercising the right to human dignity is to develop own approaches to understanding human dignity, and so thatthe adoption of quality decisions by the Constitutional Court of Ukraine.The multidimensional understanding and grounding of human dignity has been analyzed by the Federal Constitutional Court ofGermany, which considers the human dignity as a fundamental right. It is also noted that the use of such practices is a consequence of the globalization approach to the constitutional interpretation.Primarily, the human dignity accomplishes the function of restricting the legislator in matters relating to the protection of the absolutelyuntouchable sphere.A conclusion was drawn that all acts of the state must comply with it, this is a criterion for the country’s compliance with thesupremacy of law. Human dignity is the main objective of the constitutional state.

Quasi-constitutional court of human rights for Europe? Comments on Geir Ulfstein

2021 ◽  
Vol 10 (1) ◽  
pp. 175-185
Author(s):  
WOJCIECH SADURSKI
Keyword(s):  
Human Rights ◽  
Public Reason ◽  
Constitutional Court ◽  
Legal Systems ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Short Comment

AbstractThis short comment offers two additional arguments, missing from Geir Ulfstein’s account, which may bolster the case for constitutionalisation of the ECtHR. The first is about the ‘pilot judgments’ through which the Court addresses systemic deficits in national legal systems and thus ensures a minimal synchronisation of human rights protection throughout the CoE system. The second manifestation of constitutionalisation of the ECHR system is the increasing role of the ECtHR in the implementation of its own judgments. Ultimately, the legitimacy for the constitutional ambitions of Strasbourg Court should be located primarily in the argumentative resources of the court and in its pursuit of ‘public reason’.

scholarly journals Access to constitutional complaint procedures: A real chance?

2022 ◽  
Keyword(s):  
Human Rights ◽  
International System ◽  
Complex Problem ◽  
Specific Aspect ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Legal Aid ◽  
Human Rights Protection ◽  
Legal Provisions ◽  
Court Proceedings

Abstract In a recent decision, the European Court of Human Rights concluded that the constitutional complaint before the Hungarian Constitutional Court can be seen as an effective domestic remedy. This decision shows the growing role of constitutional complaint procedures even in the international system of human rights protection; therefore, it is worth examining how national laws ensure efficient access to such procedures. The current paper aims to analyse a specific aspect of this complex problem, namely, the question of legal aid in constitutional court proceedings – particularly constitutional complaints procedures – in Germany, Austria and Hungary. As a general staring point, it is intended to derive the need for legal aid from the national constitutions, followed by an analysis on the availability of legal aid schemes for constitutional complaint procedures and their conditions. The examination is based on the national legal provisions and case-law, as well as the relevant secondary literature. This comparative study can enable some conclusions to be drawn on the question of how constitutional complaints can become more efficient tools in the protection of fundamental rights for those in need, as well.

scholarly journals A Search Warrant Submited Verbally and Legality of Evidence / Naredba za pretresanje na osnovu usmenog zahtjeva i zakonitost dokaza

2014 ◽  
Vol 4 (4) ◽  
pp. 114
Author(s):  
Veljko Ikanović
Keyword(s):  
Human Rights ◽  
Criminal Procedure ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Procedure Code ◽  
Search Warrant ◽  
Evaluation Of Evidence ◽  
Republika Srpska ◽  
Principle Of Legality

Criminal Procedure Code of Republika Srpska defines that a search of dwellings, other premises and persons can be permitted, with certain exceptions, only with a search warrant issued by the preliminary proceedings judge. A search warrant is issued under the conditions provided by the Code, at the request of the prosecutor or at the request of authorized officials obtained an approval by the prosecutor. A request for the issuance of a search warrant may be submitted in writing or verbally. If the request is submitted verbally, preliminary proceedings judge is obliged to record the communication appropriately, but the requesting official shall draft the warrant. Author of the paper deals with issues related to failure of the preliminary proceedings judge to record „all of the remaining communication“ after the verbally request for a search warrant was made, and judges influence to legality of evidence obtained on a basis of such a warrant. Observes all that trough the rules which are regulating the procedure, decisions of ordinary courts of law and the Constitutional Court of Bosnia and Herzegovina, trying to find an answer to the question: is the essence of this institute presented by its form or its contents. Proper implementation of evaluation of evidence and the possibility to use the evidence in criminal procedure, human rights protection, compliance of the principle of legality, and, very often, the epilogue of criminal procedure depends from the answer to this question.

scholarly journals Intertwined but Different. The Heterologous In Vitro Fertilization Case before the European Court of Human Rights and the Italian Constitutional Court

2017 ◽  
Vol 9 (1) ◽  
pp. 34-67
Author(s):  
Antonia Baraggia ◽  
Maria Elena Gennusa
Keyword(s):  
Human Rights ◽  
In Vitro Fertilization ◽  
Constitutional Court ◽  
Vitro Fertilization ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Protection Systems ◽  
Shed Light

Abstract International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR’s S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to have the last word on human rights adjudication.

Contesting Self-determination in the Wake of Empire: Sovereignty, Human Rights and Economic Justice

2020 ◽  
Vol 89 (1) ◽  
pp. 67-93
Author(s):  
Miriam Bak McKenna
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
International Economic Order ◽  
Self Determination ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Historical Accounts ◽  
East West ◽  
Individual Human

This article considers the ways in which geo-political and legal concerns materialised in debates over self-determination in the years following decolonisation, and how they impacted on its’ possibilities, objectives and conception. During this period, self-determination was not, as some scholars have argued, a declining norm, but one central to the competing visions of reinventing international law after empire. These varying articulations were largely shaped by the experience of colonialism and its ongoing effects, along with the ideological confrontation between East-West and North-South. One articulation stressed the primacy of political and economic sovereignty, prominently seen in calls for the establishment of a New International Economic Order. The other sought to integrate self-determination into the elevation of democratic governance and individual human rights protection. Examining these alternative formulations of self-determination, underlines the incompleteness of mainstream historical accounts, and may throw light upon continuing anxieties over its current legal status.

scholarly journals The Attempt to Human Rights Protection Through Judicial Review in Indonesia

2018 ◽  
Vol 54 ◽  
pp. 02006
Author(s):  
Riris Ardhanariswari ◽  
Muhammad Fauzan ◽  
Ahmad Komari
Keyword(s):  
Human Rights ◽  
State Government ◽  
Judicial Review ◽  
Stable State ◽  
Judicial Power ◽  
Constitutional Court ◽  
Human Rights Protection ◽  
The Law ◽  
Law And Justice ◽  
Parliamentary Supremacy

The Constitutional Court is one of the perpetrators of judicial power, in addition to the Supreme Court as referred to in Article 24 paragraph (2) of the 1945 Constitution. The Constitutional Court is also bound to the general principle of an independent judicial power, free from the influence of other institutions in enforcing law and justice. The Constitutional Court is the first and last level judicial body, or it can be said that it is the only judicial body whose decisions are final and binding. The existence of the Constitutional Court is at the same time to maintain the implementation of a stable state government and is also a correction to the experience of constitutional life in the past caused by multiple interpretations of the constitution. Judicial review towards the constitution is one of the authorities of the Constitutional Court that attracted attention. This shows that there has also been a shift in the doctrine of the parliamentary supremacy towards the doctrine of the supremacy of the constitution. The law was previously inviolable, but now the existence of a law is questionable in its alignment with the Constitution. The authority to examine the Law towards the Constitution is the authority of the Constitutional Court as the guardian of the constitution. This authority is carried out to safeguard the provisions of the Act so that it does not conflict with the constitution and / or impair the constitutional rights of citizens. This shows that the judicial review towards the Constitution carried out by the Constitutional Court is basically also to provide protection for human rights.

The EU’s Area of Freedom, Security and Justice: A Lack of Fundamental Rights, Mutual Trust and Democracy?

2009 ◽  
Vol 11 ◽  
pp. 53-85 ◽  
Author(s):  
Sionaidh Douglas-Scott
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Identity ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Arrest Warrant ◽  
Legal Accountability ◽  
To Come ◽  
Free Movement Of Persons ◽  
The Eu

AbstractThe EU’s ‘Area of Freedom, Security and Justice’ is a hugely important area covering criminal law, terrorism, immigration, visa control and civil justice, as well as the massive area of free movement of persons. What is clear, however, is that measures which fall within its scope have the capacity to alienate EU citizens rather than making them feel aware of their European identity in a positive sense. This chapter examines some of the measures taken by the EU in this broad field which cause particular concern, namely a lack of democratic and legal accountability as well as inadequate regard to human rights. It focuses in particular on two areas in which human rights protection in the EU has been undermined. The first is in the field of data protection. The second is in the field of suspects’ rights, particularly in the context of the European arrest warrant. The chapter concludes by considering why so many restrictions on freedom have been allowed to come about and suggests some possible solutions.

“Not Taking Rights Seriously”. Opting for the Primacy of eu Law over Broader Human Rights Protection

2015 ◽  
Vol 4 (2) ◽  
pp. 277-302
Author(s):  
Fisnik Korenica ◽  
Dren Doli
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Eu Law ◽  
The European Union ◽  
Human Rights Protection ◽  
Rights Protection ◽  
Court Of Justice ◽  
Charter Of Fundamental Rights ◽  
Protection Of Human Rights ◽  
The Relationship

The European Union (eu) accession to the Convention for the Protection of Human Rights and Fundamental Freedoms (echr) has been a hot topic in the European legal discourse in this decade. Ruling on the compliance of the Draft Agreement on eu accession to the echr with the eu Treaties, the Court of Justice of the eu (cjeu) came up with a rather controversial Opinion. It ruled that the Draft Agreement is incompliant with the eu Treaties in several respects. One of the core concerns in Opinion 2/13 relates to the management of horizontal relationship between the eu Charter of Fundamental Rights (ChFR) and echr, namely Article 53 ChFR and Article 53 echr. The article examines the Opinion 2/13’s specific concerns on the relationship between Article 53 ChFR and Article 53 echr from a post-accession perspective. It starts by considering the question of the two 53s’ relationship from the eu-law autonomy viewpoint, indicating the main gaps that may present a danger to the latter. While questioning from a number of perspectives the plausibility of the cjeu’s arguments in relation to the two 53s, the article argues that the Court was both controversial and argued against itself when it drew harshly upon these concerns. The article also presents three options to address the cjeu’s requirements on this issue. The article concludes that the cjeu’s statements on the two 53s will seriously hurt the accession project, while critically limiting the possibility of Member States to provide broader protection.

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