scholarly journals Features of the constitutional legal status of the National Human Rights Commission and the state human rights commissions in India

Antinomies ◽  
2019 ◽  
Vol 19 (2) ◽  
pp. 87-103
Author(s):  
S. Kuznetsova ◽  
2011 ◽  
Vol 13 (3) ◽  
pp. 297-316 ◽  
Author(s):  
Albert Kraler

AbstractAlmost all Member States in the European Union currently make use, or in the past have made use of some form of regularisation of irregular immigrants, although to greatly varying degrees, in different ways and as a rule only reluctantly. A distinct feature of recent regularisations has been the shift towards a humanitarian justification of regularisation measures. In this context, regularisation has become reframed as an issue of the protection of irregular migrants’ human rights. As a result, regularisation has to some extent also been turned from a political tool in managing migration into an issue of international, European and national human rights law. While a human rights framework indeed offers a powerful rationale and at times compelling reasons why states ought to afford a legal status to irregular migrants, I argue that a human rights based approach must always be complemented by pragmatic considerations, as a human rights based justification of regularisation alone will be insufficient to find adequate responses to the changing presence of irregular migrants in the EU, not all of which can invoke human rights based claims to residence.


2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.


2021 ◽  
Vol 15 (1) ◽  
pp. 202-209
Author(s):  
ANDREI V. SMIRNOV

Introduction: the paper analyzes current Russian legislation regulating the functioning of the institute of state service. Aim: to study federal legislative acts containing provisions that define the list of state bodies that are classified as law enforcement agencies, and to look into the reasons why the legislator abandons the term “law enforcement service”. Methods: general scientific and special methods, including comparative legal, comprehensive, logical methods, analysis and synthesis. Results: we reveal certain inconsistencies in the regulatory framework that make it difficult to establish common features and specifics of administrative and legal status of such bodies; these inconsistencies also impede further development of the theory of administrative law when studying the institution of state service. Conclusion: based on the analysis of the types of functional activities of state bodies, we conclude that the service in the prosecutor’s office is classified as the state service related to law enforcement activity; we note its similarity and difference in relation to the service in other state bodies that perform law enforcement functions, including institutions and bodies of the penal system. In line with the methodology of integrative legal understanding, we define the service in the prosecutor’s office as the professional activity carried out on behalf of the state by employees holding positions in authorized federal state bodies and empowered by law to apply state enforcement measures aimed at protecting law and order, human rights and freedoms, public and state interests, combating crimes and other offenses, or the professional activity related to the performance of the functions of internal administration and staffing of these bodies. We emphasize that such service is implemented in strict accordance with the rules established by administrative and legal norms, and on the basis of ethical principles and moral principles that form the orientation of employees toward achieving socially useful goals and interests of the state itself. Scientific and practical significance of the article lies in the fact that the conclusions made in it can be used in scientific, educational and law-making activities. Key words: state service; law enforcement agencies; law enforcement activities; control and supervisory activities; human rights activities; prosecutor’s office agencies; prosecutor’s office employees.


2021 ◽  
Vol 9 (1) ◽  
pp. 96-117
Author(s):  
Pavlo Krainii

Today, the existence of every society and every state is marked with the presence of generally accepted phenomena that radically distinguish the legal status of an individual from his ancestors, who lived hundreds or even thousands of years ago. These phenomena are: democracy, legal society, human rights, good governance, participatory democracy, etc. The study of legal relations between an individual or a group of individuals and the state, represented by the system of government in one form or another, has been carried out by a large number of well-known legal scholars, sociologists, political scientists, and economists, all of whom offered numerous theoretical concepts, represented different scientific schools, and worked in various fields of research. The basic issue they have been trying to solve both in the past and at present is how an individual citizen or a group of individuals can influence the decision-making processes of public authorities that affect the interests of each of them. It turned out that the institutions we are aware of (like those of political parties, public organizations, unions) are not the only legal forms of association of the country citizens who seek to exercise public power and represent the interests of certain groups of their compatriots. The active changes that took place in the world after the Second World War, as well as the emergence of the third generation of human rights were a logical continuation of the growing influence of liberal ideas and views, which proved the existence of new scientific alternatives, ideas and concepts for developing the theory of deliberative democracy. The latter’s main objective was the idea of citizens’ active involvement in decision-making by the authorities and local governments, which consequently led to the phenomenon of public-private partnership. The article under discussion contains a legal analysis of the institution of public councils as one of the legal forms of such interaction through the theory of communicative action. At the same time, the paper will contain an attempt to analyze the current Ukrainian legislation that determines and regulates the legal status of public councils. This will enable to draw conclusions about the level of involvement of citizens in the decision-making process. In addition, the article will lay particular emphasis on a study of the already established and existing public councils in Ukraine, as well as will identify the positive and negative aspects of their activities, which will help to work out the problematic aspects of their legal status and offer practical ways to eliminate them.


Yurispruden ◽  
2019 ◽  
Vol 2 (2) ◽  
pp. 119
Author(s):  
Arasy Pradana A Azis

ABSTRACTThe Reformation then became a momentum for improving the issues of upholding human rights in Indonesia, where human rights matters formally entered into the division of power. On the one hand, for the first time, a ministry was formed specifically to deal with human rights matters. While outside the executive body, Law No. 39 of 1999 strengthens the position of the National Commission of Human Rights which has actually been established since 1993. This phenomenon then raises a problem statement, on how bureaucratization of human rights after Reformation is manifested through the establishment of the National Human Rights Commission and the Ministry of Human Rights. It was found that each institution gained legitimacy from political dynamics in a more democratic public space. Between the state ministries for human rights and the National Commission of Human Rights, the principle of check and balances was carried out in their role as an organ of the Indonesian bureaucracy. On the one hand, the state minister for human rights is an extension of the executive's hand in managing human rights matters. As a counterweight, the National Human Rights Commission carries out the role of the state auxiliary bodies to monitor the government’s human rights work.Keywords:    Politic of Law, Bureaucratization, Human Rigths, Ministry of Law and Human Rights Affairs, National Commission of Human Rights. ABSTRAKPeristiwa Reformasi menjadi momentum perbaikan urusan penegakan HAM di Indonesia, di mana urusan HAM secara formal masuk ke dalam pembagian kekuasaan negara. Di satu sisi, untuk pertama kalinya dibentuk satu kementerian yang secara khusus menangani urusan HAM. Sementara di luar lembaga eksekutif, Undang-Undang Nomor 39 Tahun 1999 menguatkan kedudukan Komisi Nasional Hak Asasi Manusia yang sejatinya telah terbentuk sejak tahun 1993. Fenomena ini kemudian menimbulkan satu rumusan permasalahan, yaitu bagaimana birokratisasi urusan HAM pasca reformasi termanifestasi melalui pembentukan Komnas HAM dan kementerian urusan HAM. Ditemukan bahwa masing-masing lembaga memperoleh legitimasi dari dinamika politik di ruang publik yang lebih demokratis. Antara kementerian negara urusan HAM dan Komnas HAM kemudian menjalankan prinsip check and balances dalam menjalankan perannya sebagai organ birokrasi Indonesia. Di satu sisi, kementerian negara urusan HAM merupakan perpanjangan tangan eksekutif untuk mengurus urusan HAM. Sebagai penyeimbang, Komnas HAM menjalankan peran sebagai state auxiliary bodies guna mengawasi kinerja HAM pemerintah.Kata Kunci: Politik Hukum, Birokratisasi, Hak Asasi Manusia, Kementerian Urusan HAM, Komnas HAM.


Author(s):  
Kh. Yamelska

The article reveals the content of armed aggression and the legal status of the temporarily occupied territories of Ukraine. Russia's aggression against Ukraine is considered in historical retrospect. Cases of torture and other ill-treatment on the temporarily occupied territories have been demonstrated in specific cases. The article examines the state of human rights on the temporarily occupied territories, namely the prevention of torture and other ill-treatment. Ways to prevent torture and ill-treatment in order to respect human rights and maintain the rule of law have been identified. The author determined that system of counteraction to aggression of Russia, which consists the political, legal and economic means, includes the prevention of torture and ill-treatment.The author notes that the adoption of UN GA resolutions and other documents of the Committee of Ministers of the Council of Europe, the Parliamentary Assembly of the Council of Europe, the Organization for Security and Co-operation in Europe are new elements of increasing legal pressure on Russia. The submission of interstate applications by the Government of Ukraine to the European Court of Human Rights against the Russian Federation is one of the effective means of preventing torture. The article reveals the impact of expert and advocacy activities of non-governmental human rights organizations on the prevention of torture and the state of human rights on the temporarily occupied territories. It is noted that maintaining contacts with the citizens of the Autonomous Republic of Crimea, constant informing, as well as obtaining information by the Ukrainian side on the state of human rights in the temporarily occupied territory provides an opportunity to partially prevent such violations and allow future reintegration of these territories. Keywords: prevention of torture, temporarily occupied territories, armed aggression, observance of human rights.


2013 ◽  
Vol 31 (2) ◽  
pp. 391-422
Author(s):  
David Fraser ◽  
Frank Caestecker

Statelessness continues to trouble today's international legal and political spheres. Despite the International Convention Relating to the Status of Stateless Persons, the stateless remain an unwelcome presence and awkward anomaly within an international human rights regime still fundamentally dominated by the nation state structure. In 1945, Marc Vishniak wrote that the stateless were “… restricted in their rights more than any other people and constitute the weakest chain in the link of human rights.” Hannah Arendt, who was herself a Jewish refugee from Germany, placed the enigma of the stateless in an even more central philosophical position. Whereas Visniak emphasized the problematic and marginalized legal status of the stateless within the dominant international paradigm, Arendt proposed a re-imagining of the international legal order, a vision that would prioritize a solution to the situation of the stateless, especially stateless Jews, by “somehow or other restoring to them the inalienable rights of man.” For Arendt, Jewish former citizens of Germany, stripped of their nationality by the Nazi regime, occupied a newly paradoxical situation as empowered and voluntaryHeimatlos,precisely because they now rejected the standard legal normativity of the state/citizen template. Arendt found historical support for her argument about statelessness as both abnormal within dominant international legal thinking, and at the same time strangely empowering, with regard to the situation of the mainly Jewish refugees displaced during World War I. They had fallen outside the protections offered by new succession countries at the end of that conflict, very often by their own decision to refuse incorporation as citizens of the emergent nation states. These Jewishapatridesdiscovered “privileges and juridical advantages in statelessness.” For Arendt, Jewish former citizens of Germany at the end of World War II further embodied a move toward conceptualizing a new international paradigm wherein rights could be sought beyond the traditional bounds of a state-based legal order, precisely because those bounds had been irrevocably shattered by the state itself.


Author(s):  
N. Nykytchenko

This article is devoted to the study of the theoretical and scientific-practical nature of the institution of representation in the EU countries and the development of proposals based on them on improving the legal status of a lawyer in Ukraine, taking into account the best European practice. The place of the advocacy in the modern legal system can be characterized as one of the ways of self-restraint of state power through the creation and functioning of an independent human rights institution that promotes its activities by fulfilling the constitutional function of the state – the realization and protection of human rights and freedoms. The constitutional and legal status allows advocates to participate in ensuring the rights not only of everyone, but of the whole civil society, to implement the human rights function, ensuring the interaction in the activity of the institutional systems of the state and civil society. Since 2012, the advocacy reform has been initiated and brought to the standards of the European Union. However, over 6 years have passed, but no significant positive changes have taken place in this field. Ensuring the constitutional rights and freedoms of citizens still leaves much to be desired. The issue of voluntary admission of lawyers to the National Association of Advocates of Ukraine will be resolved, and so-called "lawyer's monopoly" needs to be substantially revised. Therefore, the review of the grounds, the rules, and the regularity of the prosecution in civil proceedings, which is carried out by the two advocates, needs a substantial improvement. In order to create in Ukraine the model of legal assistance taking into account modern legal frameworks, that is a guarantee of the right of accessibility and effectiveness of judicial protection in civil proceedings.


2019 ◽  
pp. 125-137
Author(s):  
N. Akhtyrska

The article, based on an analysis of judicial and investigative practices, highlighted the complex issues relating to the legal status of an expert and a specialist, ensuring their independence, evaluating and using the conclusions of an expert and a specialist by the court in strict compliance with and ensuring the principle of equality of the parties in the criminal process. The defense has the right to request the cross-examination of the expert, regardless of whether he was questioned at the pre-trial investigation stage. This does not exclude the possibility of using the previous testimony in court (protocol, audio, video recording), but only for the purpose of establishing contradictions. Refusal to satisfy the petition is a violation of the Convention requirements for a fair trial and equality of the parties. A tacit refusal of any guarantee of justice is not excluded, but at the same time, the existence of such a refusal must be proved «unequivocally». The court is obliged to accept as evidence from the defense the findings of the expert on the same issues on which the prosecution provided the findings of the state examination. The rules of admissibility of evidence may sometimes be contrary to the principles of equality of the procedural capacities of the parties and the adversarial process or otherwise affect the fairness of the proceedings. The rules for the admissibility of the conclusions of a specialist should not deprive the party of defense of the opportunity to effectively challenge them, in particular, by using them in the case or obtaining other opinions and conclusions. The state prosecution is obliged to disclose to the defense all available evidence (the conclusions of the examination for the benefit of the prosecution, and for the benefit of the defense). Hiding expert conclusions is a violation of the principle of equality of the parties. In the context of globalization, it is often necessary to use evidence obtained in the territory of a foreign state. All documents must be provided to the defense for review in plain language. If at the end of the investigation some documents are not translated and it is provided only after the start of the judicial review, the court is obliged to announce their contents and provide them for review. According to the Court, this does not constitute a violation of the right to defense. In case of poor-quality translation, the party has the right to request a re-transfer. If documents in a foreign language remain in the case file (without translation), this does not indicate a violation of convention standards if the arguments contained in these documents are not based on the indictment or conviction. Thus, in order to provide methodological assistance to law enforcement agencies and courts in the application of legislation related to the involvement of experts and the assessment of their findings, it is necessary to develop guidelines with regard to international standards, convention requirements, as well as to make changes and additions to existing legislation. Key words: criminal proceedings, «scientific judges», questioning of an expert, expert opinion, specialist opinion, European Court of Human Rights.


2020 ◽  
Vol 11 (11) ◽  
pp. 127-133
Author(s):  
Kotenko Т.

The article deals with the historical stages of the creation, development, and formation of a human rights institute. The ideological and theoretical heritage of Ancient Greece and Rome, which is the basis for the study of ideas about justice, social equality, and human freedom, is analyzed based on the analysis of the fundamental ideas of the most famous thinkers of antiquity. It was the philosophers of antiquity who initiated the concept of "natural law", which was formed over the centuries by the desire of man to understand the world, determine his place in society and politics. From the time of antiquity, the concept of human rights gradually began to emerge; Subsequently, the concept of equality, freedom of person, person, and citizen were formed. Ancient philosophers came up with the idea of law in general and the idea of human rights under the requirements of their time and conditions of social development. Over time, the ancient perception of social equality, justice, dignity, independence, and freedom of man became the starting point and benchmark of European political culture. The early period of the development of political and legal doctrines in ancient Greece is associated with the time of the formation of ancient Greek statehood. It was at this time that an attempt was made to give rationalist ideas about ethical and legal order in human affairs and relations instead of mythological ones. It should be noted that ancient Greek views on human rights were formed in mythological ideas about the origin of policies and divine justice. That is why rights come from the divine order of justice, which became the basis for the category equality. Only what corresponded to the concept of equality (within the concept of justice) was understood as right. In ancient Greek politics, customs and mono-norms gradually transformed towards protecting the dignity of citizens. The polite democracy gave impetus to the emergence of freedom, which promoted the emergence of equal political rights among the citizens of this policy. In the Greek city-state, the law first emerged as a specific phenomenon, and the life of the policy began to be compulsory for everyone. Subsequently, the Pythagoreans (VI –V centuries BC) formulated an important role in shaping the idea of legal equality and justice, using numerical proportions, that is, the ratio of certain parameters. The provision that "fair is to pay another equal" essentially introduces the coupon principle. Subsequently, this reflected Solon (7th-6th centuries BC) in his reforms. It eliminated debt slavery and, as a result of the compromise between nobility and demos, introduced a moderate censorship democracy in Athens. All citizens of the policy should equally be protected by the law and obey its mandatory rules (1). Recognized the law as a requirement of legal equality of free citizens of the policy, slaves did not apply the legal rules. Equality was considered in two respects: equality in law and equality before the law. Developed by Roman lawyers provisions in which a person acts as a subject of law, determine the legal status of a person, establish the freedom and formal equality of people under natural law, define Roman citizenship as a special legal status of a person, the distribution of the right to private and public, etc. contributed to the awareness of legal the importance of human rights in the context of the systematic doctrine of the legal nature of the relationship between the individual and the state. Roman law, extending to a state which it regarded as the object of its study along with positive law, ensured a legal relationship between the state and the individual, which was crucial for the development of the institution of the protection of individual rights in the world at that time (14, p. 119). In relation to individuals, the state was not above the rule of law, but directly its component part, which has all the basic properties of a law. The basis of a just and legal relationship between the individual and the state recognized the law, not the state. The individual and the state must be law-abiding subjects of legal relations, that is, act according to the rules of law. Conclusion. To sum up, we can point out that the first theoretical developments and statutory provisions of the law go back to ancient times. The thinkers of Ancient Greece and Rome initiated the basic concepts of justice, equality, autonomy. It was then that ideas about political rights, lawmaking, democracy, and the personal responsibility of citizens were formed. However, freedom was not universal, it did not belong to slaves, and they were not the subjects of relations in the policy. The population of the policies was divided into different social and ethnic groups and accordingly had different legal status. Such inequality was the norm, so the priority was given to a policy or state that was enshrined in legislation. However, in Ancient Greece, there were also certain individual rights of citizens such as the right to speak; private property rights; the right to participate in government; the right to hold office; to participate in national meetings; the right to participate in the administration of justice; the right to appeal against illegal acts, etc. In Ancient Rome, this list was supplemented by the right to bargain, freedom of movement, the right of the people's tribune to veto, the ban on torture, the adversarial process of the lawsuit, etc. Keywords: Antiquity period, city-policies, human rights, legal equality, society, justice.


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