scholarly journals Analysis of the Set, Meaning, Range and Frequency of Lodging the Reasons for Judicial Protection Request

2015 ◽  
Vol 13 (1) ◽  
pp. 93-118
Author(s):  
Tine Jurič
Keyword(s):  
Empirical Research ◽  
Fast Track ◽  
Legal Protection ◽  
Fundamental Rights ◽  
Legal Remedy ◽  
The Right ◽  
Judicial Protection ◽  
Made In

The right to a legal remedy is one of the fundamental rights, which must be provided to every party involved in the proceedings (criminal, administrative, civil) which decide on the party’s rights, obligations or legal benefits. In the field of misdemeanour law with regard to the fast track misdemeanour proceedings, the legislature refers to this remedy as the request for judicial protection. Its effectiveness at the level of the set of reasons and their frequency at lodging the request, with the aim of providing the best possible legal protection of offenders, is unexplored, and so an in-depth empirical, historical and normative research of the challenge against its lodging has been made, in particular of the range, meaning, scope and the frequency of the filing of the reasons challenging the lodging. The research established that the range of the challenging grounds for filing a request for judicial protection extends with the amendments to the Minor Offences Act and in this way provides a greater legal protection for offenders, and that most of them are filed due to a challenge on the grounds of erroneous and incomplete factual findings. This suggests that in this part of the fast track misdemeanour proceedings, most irregularities by misdemeanours authority are claimed. The results of empirical research utilizing the model of challenging the Police decisions regarding misdemeanours present the conduct of research, the methods used, as well as the baseline for a model of judicial protectionagainst the decisions of the Police regarding the Minor Offences Act de lege ferenda.

Challenges to EU Legality in the Field of Asylum and Migration Law

2021 ◽  
pp. 48-70
Author(s):  
Evelien Brouwer
Keyword(s):  
Legal Protection ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Recent Developments ◽  
And Migration ◽  
The One ◽  
The Right ◽  
Judicial Protection ◽  
Migration Law ◽  
The Eu

‘EU legality’ in EU migration and asylum laws can be considered as a double-edged sword. This chapter describes how, on the one hand, the CJEU, by the mere application of general principles of EU law, offered in its case-law important criteria strengthening the rights and legal protection of third-country nationals while, on the other hand, more recent developments show that the EU legislator, but also the CJEU, almost artificially excludes migration laws or decisions from the legal framework of the EU. It will be argued that developments of ‘re-nationalization’, the application of mutual trust, and the externalization of EU asylum and migration policies, challenge the applicability of general principles of EU legality, including the protection of fundamental rights and the right to effective judicial protection.

scholarly journals Perspectiva constitucional de las garantías de aplicación de la Inteligencia Artificial: la ineludible protección de los derechos fundamentales.

2020 ◽  
Vol 6 (2) ◽  
pp. 72-82
Author(s):  
Jorge Castellanos Claramunt ◽  
María Dolores Montero Caro
Keyword(s):  
Artificial Intelligence ◽  
Point Of View ◽  
Fundamental Rights ◽  
Judicial Decisions ◽  
Spanish Constitution ◽  
The Right ◽  
Judicial Protection

Artificial Intelligence has an undeniable effect on today’s society, so its study regarding its legal effects becomes necessary. And consequently, how fundamental rights are affected is of particular importance. Hence, the present paper studies the influence of algorithms in determining judicial decisions, especially from the point of view of how this issue would affect the right to effective judicial protection, recognized as a fundamental right in article 24 of the Spanish Constitution.

EU Sanctions

2021 ◽  
pp. 177-229
Author(s):  
Jan Wouters ◽  
Frank Hoffmeister ◽  
Geert De Baere ◽  
Thomas Ramopoulos
Keyword(s):  
Case Law ◽  
Essential Elements ◽  
Fundamental Rights ◽  
Property A ◽  
The Right ◽  
Judicial Protection ◽  
Restrictive Measures ◽  
Procedural Rights ◽  
Large Corpus ◽  
The Eu

This chapter provides an overview of the sanctions that are available to the EU in the conduct of its foreign policy. First, it focuses on EU restrictive measures or sanctions analysing the applicable provisions and procedure for their adoption under the EU Treaties before making a systematic presentation of the different regimes adopted by the Union and their link to UN sanctions. The chapter also delves into the large corpus of case law on the compliance of sanctions with fundamental rights, in particular procedural rights, such as the rights of defence and the right to effective judicial protection, and substantive rights, such as the right to carry out an economic activity and right to property. A section is also dedicated to the constantly developing case law on actions for damages from sanctions. Sanctions adopted by the Union within the framework of cooperation and association agreements for the violation of certain essential elements of these agreements are also analysed. Lastly, a discussion of the specific case of the blocking statute, an autonomous measure adopted to counter extraterritorial effects of legislation and actions of third states, which was recently updated, forms part of this chapter.

scholarly journals Consensus Ad Idem: A Plea for Objectivity in Telephonic Contracts

2017 ◽  
Vol 6 (1) ◽  
pp. 41-56
Author(s):  
D Ganesh Kumar ◽  
Akshay Douglas Gudinho
Keyword(s):  
Freedom Of Speech ◽  
Contract Law ◽  
Fundamental Rights ◽  
Objective Analysis ◽  
Due Diligence ◽  
Legal Certainty ◽  
The Right To Privacy ◽  
The Subject ◽  
The Right ◽  
Made In

Consensus Ad Idem, legally defined as „meeting of minds‟, at the time of the formation of a contract, warrants a cardinal jurisprudential question which transcends its mere literal meaning. In Indian Contract Law, the trend has followed the test of objectivity, whereby it is not the actual intent of the party or parties that enter into the contract that is the subject of judicial evaluation, but it is what a reasonable man would deliberate in the peculiar circumstances of the case. However, the evaluation of telephonic conversations merit intrinsic jurisprudential insight. While applying the objective test, the questions that arise are - is there legal certainty of assent to a contract over telephonic conversations i.e. whether there is free consent. Do the parties have the capacity to contract over telephone? What are the liabilities of the telephone operator and his legal bond to the contract between two or more contracting parties? Does it amount to violation of the fundamental rights to freedom of speech and expression and the right to privacy? The authors attempt to provide an objective analysis of communication in contracts over telephonic means and the constitutional environment embedded therein. To this end, a plea for due diligence prior to the formation of telephonic contracts shall be made in order to bring objectivity to the judicial evaluation of telephonic contracts.

How Conditional Amnesties Can Assist Transitional Societies in Delivering on the Right to the Truth

2017 ◽  
Vol 6 (2) ◽  
pp. 143-175 ◽  
Author(s):  
Jeremy Julian Sarkin
Keyword(s):  
International Law ◽  
Transitional Justice ◽  
Legal Protection ◽  
Transitional Societies ◽  
Post Conflict ◽  
The Status ◽  
The Right ◽  
Legal Consequences ◽  
Made In

This article explores how conditional amnesties can assist post-conflict societies to recover truth. It examines how such amnesties can be used optimally to achieve the best results as part of transitional justice mechanisms. Thus, a central question is to see how amnesties can be used for truth recovery purposes. For that reason, the status and role of amnesties, and whether such amnesties can be used to learn more about the past and assist in truth recovery is explored. The article explores what amnesties are, how prevalent they are and how amnesties can be used optimally to achieve the best results. An issue that is also explored is whether amnesties are needed for perpetrators to participate in transitional justice mechanisms. The argument that is made, in this regard, is that amnesty is absolutely necessary to persuade perpetrators to testify. If they do not have such legal protection, perpetrators fear the legal consequences that may result if they admit to crimes for which they have not been charged. Another question that is examined concerns whether amnesties, and specifically conditional amnesties, pass international law muster. This article therefore investigates the continual and extensive use of amnesty to determine whether a conditional amnesty violates international law. The article suggests how a conditional amnesty process could be structured and what difficulties such a process should avoid if perpetrators are to enter such a process.

THE CONTRIBUTION OF THE EUROPEAN COURT OF JUSTICE TO THE AREA OF FREEDOM, SECURITY AND JUSTICE

2010 ◽  
Vol 59 (2) ◽  
pp. 255-301 ◽  
Author(s):  
Koen Lenaerts
Keyword(s):  
Fundamental Rights ◽  
Judicial Cooperation ◽  
Present Contribution ◽  
Treaty Of Lisbon ◽  
European Court ◽  
The One ◽  
Judicial Procedure ◽  
The Right ◽  
Criminal Matters ◽  
Judicial Protection

ABSTRACTThe aim of this article is to provide an overview of the European Court of Justice's (‘ECJ’) past and present contribution— both procedurally and substantively—to the Area of Freedom, Security and Justice. While it is too early to speculate what the ECJ's contribution to this area will be under the provisions of the Treaty of Lisbon, which entered into force on 1 December 2009, the latter's modifications to the ECJ's jurisdiction merit close attention. After describing how the procedural limitations that were imposed on the ECJ's jurisdiction by ex Title IV of Part Three of the EC Treaty and by ex Title VI of the old EU Treaty have been almost entirely eliminated by the Treaty of Lisbon, this article posits that not only does the latter Treaty improve significantly the judicial protection of private individuals, but it also facilitates the dialogue between the Union and the national judiciaries in the Area of Freedom, Security and Justice. Next, the article briefly explores the special ECJ procedures which may be followed in the Area of Freedom, Security and Justice in cases where time is of the essence. There, it is argued that, when having recourse to these procedures, the ECJ strives to strike the right balance between, on the one hand, swift judging and, on the other hand, the preservation of a qualitative and fair judicial procedure. As to substantive issues, drawing on examples from the fields of judicial cooperation in civil matters, asylum and judicial cooperation in criminal matters, it is argued that the ECJ's contribution to this area is largely grounded in the protection of fundamental rights. Finally, a brief conclusion supports the contention that the ECJ's contribution to the Area of Freedom, Security and Justice has favoured a ‘mutual borrowing’ of concepts and principles as between this area and other fields in relation to which the EU has competences, such as the internal market and competition. The Treaty of Lisbon having entered into force, an unprecedented level of coordination between different areas of EU law on both the procedural and substantive levels is to take place. Respect for fundamental rights will definitely be a unifying factor binding them all together.

scholarly journals Putusan Hakim Terhadap Hak Asuh Anak Akibat Perceraian Di Pengadilan Agama Polewali Mandar

2020 ◽  
Vol 1 (2) ◽  
pp. 244-259
Author(s):  
Sry Yulianti ◽  
Ma'ruf Hafidz ◽  
Dachran S Busthami
Keyword(s):  
Child Care ◽  
Empirical Research ◽  
Child Custody ◽  
Legal Protection ◽  
Research Approach ◽  
Factors Affecting ◽  
Custody Of Children ◽  
Religious Factors ◽  
The Right

Tujuan penelitian menganalisis Efektifitas Putusan Hak Asuh Anak dan Pertimbangan Hakim di Pengadilan Agama Polewali Mandar dalam memberikan hak pemeliharaan atau hak asuh anak kepada salah satu dari orang tuanya. Penelitian ini menggunakan pendekatan penelitian empiris  Hasil penelitian menunjukkan bahwa: (1) evektifitas putusan hakim terhadap hak asuh anak akibat perceraian di Pengadilan Agama Polewali Mandar No.195/Pdt.G/2020/PA.Plw terlaksana sudah efektif karna dilaksanakan dengan baik dan memenuhi syarat sesuai dengan putusan Pengadilan Agama dalam pemenuhan hak asuh anak; (2)  faktor-faktor yang mempengaruhi putusan hakim terhadap hak asuh anak akibat perceraian di Pengadilan Agama Polewali Mandar , yaitu faktor agama dan faktor materi. Pertimbangan hakim dalam menetapkan hak pemeliharaan anak atau hak asuh anak, selain pertimbangan hukum yang dilakukan, hakim juga melihat kepentingan-kepentingan anak, supaya hak pemeliharaan anak atau hak asuh anak tepat kepada siapa di dapatkan. Hakim juga menggunakan hadist Al-Qur’an dalam mempertimbangkan putusan tentang hak asuh anak. This study aims to analyze the implementation of legal protection against children through diversion The research objective is to analyze the effectiveness of child custody decisions and judges' judgments at the Polewali Mandar Religious Court in providing custody or custody of children to one of the parents. This study uses an empirical research approach. The results show that: (1) the effectiveness of the judge's decision on child custody due to divorce at the Polewali Mandar Religious Court No.195 / Pdt.G / 2020 / PA.Plw has been implemented effectively because it is implemented well and fulfills requirements in accordance with the decision of the Religious Court in fulfilling child custody rights; (2) the factors affecting the judge's decision on child custody due to divorce at the Polewali Mandar Religious Court, namely religious factors and material factors. Judges considerations in determining child care or child custody rights, in addition to the legal considerations made, the judge also looks at the interests of the child, so that the right to care for the child or the right to custody of the child is right to whom it is obtained. The judge also used the hadith from the Qur'an in considering decisions about child custody.

scholarly journals Cuestiones constitucionales sobre las acciones de filiación no matrimonial y la corona

2015 ◽  
pp. 441
Author(s):  
Adoración Galera Victoria
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Court Decisions ◽  
Constitutional Rights ◽  
Don Juan ◽  
Spanish Constitution ◽  
Head Of State ◽  
Supreme Court Decisions ◽  
The Right ◽  
Judicial Protection

El presente estudio pretende ofrecer un análisis de las cuestiones constitucionales que se han planteado con ocasión de las recientes resoluciones del Tribunal Supremo sobre las demandas de filiación presentadas frente a Don Juan Carlos I de Borbón. El foco de atención jurídico-constitucional se dirige sobre estas decisiones por cuanto la dimensión del asunto afecta a derechos fundamentales constitucionalmente consagrados y pone de relieve la concepción de la posición jurídica del titular de la Jefatura del Estado en asuntos concernientes a su ámbito privado o familiar. Se trata pues de examinar y valorar de forma crítica las últimas resoluciones del Tribunal supremo en materia de filiación con el fin de analizar desde un punto de vista constitucional su alcance sobre la institución de la inviolabilidad regia y los derechos y fines constitucionales directamente implicados, esto es, la investigación de la paternidad (artículo 39.2 CE) el principio y derecho fundamental de igualdad (artículos 9.2 y 14 CE), y el derecho a la tutela judicial efectiva en su vertiente de acceso a la jurisdicción (artículo 24 CE).This paper aims to provide an analysis of constitutional issues raised during the recent Supreme Court decisions on a paternity action versus Don Juan Carlos I of Borbon. The focus of legal and constitutional attention is focused on these decisions because the case concerns fundamental rights guaranteed by the Constitution. It also emphasizes the concept of the legal position of the owner of the Head of State in matters concerning their private or family. It is therefore to examine and critically evaluate this recent Supreme Court decisions in order to analyze the scope of the institution of the inviolability and constitutional rights directly involved. In particular, they will be analyzed the determination of paternity (Article 39.2 of Spanish Constitution) the principle and fundamental right of equality (Articles 9.2 and 14 of Spanish Constitution), and the right to an effective judicial protection in regard to access to jurisdiction (Article 24 of Spanish Constitution).

scholarly journals The Protection of the Fundamental Rights of the Child in the Light of the African Charter on the Rights and Welfare of the Child

2018 ◽  
pp. 175-184
Author(s):  
Boubacar Sidi Diallo
Keyword(s):  
Legal Status ◽  
Fundamental Rights ◽  
Protection Mechanism ◽  
United Nations General ◽  
Optional Protocol ◽  
Rights Of The Child ◽  
Welfare Of The Child ◽  
African Charter ◽  
The Right ◽  
Judicial Protection

The adoption of a binding international treaty on the rights of the child is presented by practitioners and researchers as a “revolution”, marking the transition from the legal status of the child as a subject of the right, to a full actor of rights protection. For the fundamental rights of the child not to remain merely theoretical, but to become concrete and meaningful, it is important to provide them with effective judicial protection. This issue is more than ever topical, with the adoption by the United Nations General Assembly of the Optional Protocol to the Convention on the Rights of the Child establishing a procedure for the submission of communications, which entered into force on 14 April 2014. This new Optional Protocol gives children the right to appeal to the Committee on the Rights of the Child when the rights protected by the Convention and its firsttwo protocols are violated. The purpose of this brief study is to analyze the African Charter on the Rights and Welfare of the Child (African Charter), adopted in 1990, which is the firstregional legal text for children specificallyand as such unique, since no other region in the world has so far developed such a protection mechanism.

scholarly journals The relationship between EU secondary rules and the principles of effectiveness and effective judicial protection in environmental matters: towards a new dawn for the 'language of rights'?

2019 ◽  
Vol 12 (2) ◽  
pp. 95-116
Author(s):  
Mariolina Eliantonio
Keyword(s):  
Environmental Law ◽  
Case Law ◽  
Fundamental Rights ◽  
Apparent Lack ◽  
Court Of Justice ◽  
Aarhus Convention ◽  
Charter Of Fundamental Rights ◽  
Effective Remedy ◽  
The Right ◽  
Judicial Protection

Environmental policy is an area which has been quite heavily proceduralised and is a rather peculiar example of 'multi-level proceduralisation' because of the presence of the Aarhus Convention. This paper explores the relevant procedural provisions taken in the field of environmental law and in particular in implementation of the Aarhus Convention, and examines the case law which has involved these provisions. This case law is specifically discussed as concerns the way in which the Court of Justice deals with the interaction between the relevant secondary rules and the general principles of effectiveness and effective judicial protection, as well as Article 47 of the Charter of Fundamental Rights concerning the right to an effective remedy. It is shown that it is difficult to distill a consistent approach on the part of the Court with regards to this interaction, and that much depends on the specifics of the case and the question posed by the referring court. However, with the latest case law, despite the apparent lack of underlying rights which would be able to trigger the applicability of the Charter of Fundamental Rights, the Court of Justice seems to be moving towards a heavier involvement of Article 47 of the Charter and, consequently, of a 'language of rights', which increasingly plays a pivotal role in boosting the effectiveness of the Aarhus Convention.

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