scholarly journals Extraordinary Measures in Extraordinary Times: Legal Response to the COVID-19 Crisis in Bosnia and Herzegovina

2021 ◽  
Vol 14 (2) ◽  
Author(s):  
Igor Milinković
Keyword(s):  
Bosnia And Herzegovina ◽  
Freedom Of Expression ◽  
Private Life ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Freedom Of Movement ◽  
Legal Response ◽  
Fundamental Rights And Freedoms ◽  
The Right ◽  
Restrictive Measures

The COVID-19 pandemic has profoundly affected all aspects of people’s daily lives. In response to the pandemic, many countries declared a state of emergency. Extraordinary measures have been implemented to reduce the spread of the new coronavirus. Some of these measures require significant restrictions of fundamental rights and freedoms, such as the right to privacy, freedom of movement, freedom of assembly, freedom of expression, religious freedoms etc. In Bosnia and Herzegovina (BiH), the BiH and entity authorities adopted decisions to provide a legal basis for implementation of extraordinary measures. The paper deals with the restrictive measures implemented during the COVID-19 crisis in BiH and their impact on human rights realization. The relevant decisions of the Constitutional Court of BiH are also analysed, including the decision in case AP-3683/20 according to which certain restrictive measures are contrary to the right to respect of private life and the freedom of movement.

Ensure the Inviolability of Personal Life in the Conduct of Police Preventive Activities

Law and World ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 51-59
Keyword(s):  
Human Rights ◽  
Personal Data ◽  
Private Life ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Human Beings ◽  
National Courts ◽  
European Court ◽  
Principle Of Proportionality ◽  
The Right

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.

scholarly journals The Contributions Of CJEU In The Name Of The Principle Of Balancing – A Test Of The Role Of The Court?

2015 ◽  
Vol 21 (2) ◽  
pp. 472-478
Author(s):  
Gina Orga-Dumitriu
Keyword(s):  
Freedom Of Expression ◽  
Personal Data ◽  
Private Life ◽  
Fundamental Rights ◽  
Eu Law ◽  
Effective Protection ◽  
Fundamental Freedoms ◽  
The Right ◽  
The Eu

Abstract From the traditional functions of the general principles of the EU law – of interpretation, completion of the gaps and legality control, the principle of balancing seems to meet the most the exigencies of the first of these. The limits of the role of CJEU are certainly put to the test when it is called to settle conflicts between fundamental rights/fundamental freedoms. The trends formulated in Schmidberger (on the conflict between the free circulation of the commodities and the freedom of expression) or Promusicae (on the conflict between the right to the effective protection of the intellectual property and the right to the respect of the private life and the protection of the personal data) are more than illustrative. The doctrine assessments of the action of this principle reflect three fields in which the applicability thereof tends to reserve to the Court a role that is susceptible of creating controversies on its traditional extension. According to the authorized voice of Professor Norbert Reich, the balancing in the jurisprudence on the abusive clauses, the balancing for the avoidance of excessive protection and the balancing in social conflicts (making visible an aggravation of the conflict between fundamental rights and fundamental freedoms) are concerned.

scholarly journals Clarity and predictibility of special justification cause laid down in article 226 para 4 d of the criminal code

2019 ◽  
pp. 11-24
Author(s):  
MIHNEA-VALENTIN STOICESCU
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Private Life ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
The Past ◽  
Adequate Level ◽  
The Press ◽  
The Right ◽  
First Time

The Romanian legislature has shown great concern in the past few years in offering an adequate level of protection to all fundamental rights accordingly with the ECHR’s ever evolving jurisprudence. As such, the crime of violation of private life (article 226 Criminal Code) has been introduced, for the first time, in the Romanian criminal law. In its attempt to preserve the right balance between the freedom of the press and the right to private life, the Parliament has introduced a special justification clause, according to article 226 para. (4) d) Criminal Code. This article aims to analyze to what extent this clause respects the principles set by the ECHR and the Romanian Constitutional Court regarding the predictability and the clarity of the criminal law provisions. The article will also try to emphasize some aspects which could be taken into consideration by the judicial authorities when analyzing the applicability of the justification clause at least until there will be an early jurisprudence.

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

2021 ◽  
Author(s):  
Szabolcs Stock
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
European Court ◽  
The Right

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.

scholarly journals ON THE QUESTION OF PERSONAL NON-PROPERTY RIGHTS UNDER CONDITIONS OF QUARANTINE MEASURES TO PREVENT THE DISTRIBUTION OF COVID-19 ON THE TERRITORY OF UKRAINE

2020 ◽  
Vol 11 (87) ◽  
Author(s):  
Inna Horislavska ◽  
◽  
Anastasiia Androshchuk ◽  
Keyword(s):  
Property Rights ◽  
Legal Regulation ◽  
Fundamental Rights ◽  
Moral Rights ◽  
Freedom Of Movement ◽  
Judicial Practice ◽  
The Social ◽  
Legal Nature ◽  
Fundamental Rights And Freedoms ◽  
The Right

Now the world countries ran into the sharp problem of overcoming and counteraction to distribution in the whole world of COVID-19, and also application of responsibility for violation of quarantine. It is set on results research, that the personal unproperty rights for citizens were exposed to rather significant limitations, in fact normatively-legal acts in relation to responsibility for violation of quarantine and sanitary rules for prevention of COVID-19 have a row of legal contradictions. In the article on the basis of analysis of current national legislation, considerations of cases and theoretical and legal sources are investigated effective mechanisms of the legal providing of requirements of observance of sanitary rules and norms on prevention of infectious diseases in Ukraine. The problems of determination of legal nature, maintenance and realization of the personal unproperty rights open up in the conditions of introduction of quarantine events on warning of COVID-19. The article describes the concept of "the right to freedom of movement". This right was and is now more than ever one of the fundamental personal moral rights. The article examines the judicial practice of resolving cases in the context of the introduction of quarantine measures and ensuring the fundamental rights and freedoms of an individual through the introduction of technical means and risks that may arise in appropriate conditions. Proposals to eliminate the shortcomings of legal regulation in the studied area are substantiated. Human rights and freedoms, the degree of their recognition in the state and society, the level of their protection are determined by the type of its socio-economic organization, as well as the degree of social development and democratization of society. Personal non-property rights that ensure the social existence of an individual, including the right to freedom of movement, are closely related, both those that can be limited at the legislative level under certain conditions, and those that are not "subject to" such restrictions. Therefore, restrictions on the freedom of movement of an individual are possible only in cases provided by the Constitution and the Civil Code of Ukraine, other laws (but not by-laws, which are the rulings of the Cabinet of Ministers of Ukraine). And also in compliance with the principles of expediency, proportionality to goals. It is necessary to determine the participants in the emerging legal relationship, both those who "control" and those participants who are "controlled, limited".

Second-Class Citizens? Restricted Freedom of Movement for Spätaussiedler is Constitutional

2004 ◽  
Vol 5 (7) ◽  
pp. 761-789 ◽  
Author(s):  
Amanda Klekowski von Koppenfels
Keyword(s):  
Soviet Union ◽  
Former Soviet Union ◽  
Fundamental Rights ◽  
High Rate ◽  
Social Benefits ◽  
Constitutional Court ◽  
Subsistence Level ◽  
Freedom Of Movement ◽  
Federal Constitutional ◽  
The Right

The right to the freedom of movement for all Germans is one of the nineteen so-called Grundrechte (Fundamental Rights) and is enshrined in Article 11(1) of the German Grundgesetz (Basic Law): “All Germans enjoy freedom of movement throughout the Federal territory.” On 17 March 2004, however, the Bundesverfassungsgericht (Federal Constitutional Court) handed down a decision in which it concluded that the restriction of freedom of movement for one clearly defined group of German citizens is constitutional. Pursuant to the Wohnortzuweisungsgesetz, or Residence Assignment Act, as amended in 1996, Spätaussiedler (ethnic German migrants from the former Soviet Union who are eligible for full citizenship status), may have their freedom of movement restricted during the first three years of their residency in Germany. The restriction on their freedom of movement is triggered if they seek to avail themselves of any of a range of social benefits, including: welfare, some forms of unemployment assistance (Arbeitslosenhilfe), or integration assistance directed at Spätaussiedler, such as a six-month language course. Confronted with the loss of these social benefits, Spätaussiedler who nonetheless choose to exercise their freedom of movement are eligible to receive only a subsistence level of support. This restriction applies, nearly without exception, to all Spätaussiedler for the first three years of their residence in Germany due to the high rate of reliance among Spätaussiedler in their initial years in Germany upon these forms of public assistance.

scholarly journals REFORM OF LEGISLATIVE REGULATION OF PROTECTION OF THE ADULT PERSONS’ RIGHTS IN SWITZERLAND

2017 ◽  
Vol 3 (3) ◽  
pp. 61-68
Author(s):  
Наталья Петурова ◽  
Natal'ya Peturova
Keyword(s):  
Russian Federation ◽  
State Intervention ◽  
Civil Code ◽  
Private Life ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Protection Measures ◽  
Legislative Regulation ◽  
The Russian Federation ◽  
Fundamental Rights And Freedoms

The article shows the evolution of the Swiss civil legislation in the sphere of guardianship over an adults in Switzerland, presents the principles which are the basis of the system of measures for protection of these persons at present, analyzes the approaches to the reform 2012 of the Swiss Civil Code, embodied the concept of the protection of the fundamental rights and freedoms. The author paid attention on a specific reform measures of protection and the procedure of their adoption. Also the attention paid to new concepts, laid the basis for the reform, such as respect for human dignity, promoting self-determination of individuals, strengthening the solidarity of the family, reducing the degree of state intervention in private life of a person, differentiational approach to the application of safeguards, the non-evaluative terminology, and disclosure of information on application of protection measures. The article discusses the current legislative regulation of Switzerland (order in case of loss of ability to reason intelligently, accommodation in an institution for assistance, the representation of the spouse or registered partner and the four kinds of guardianship: guardianship by the guardianship cooperation, guardianship representation and custody of the common actions). The theme of the article is relevant considering the need for the further revision of the Russian legislation in the part of protection and promotion of the interests of persons with mental disabilities. Foreign experience is extremely useful, as important changes of the Civil code of the Russian Federation (2012) and the Civil Procedural Code of the Russian Federation (2013), prepared under pressure of the European Court of Human Rights and the Constitutional Court of the Russian Federation, are not sufficient and the reform in Russia should be continued.

scholarly journals El Estado de Derecho frente al COVID: Reserva de ley y derechos fundamentales

2021 ◽  
pp. 137-175
Author(s):  
Javier TAJADURA TEJADA
Keyword(s):  
The State ◽  
Fundamental Rights ◽  
State Of Exception ◽  
Constitutional Court ◽  
Autonomous Communities ◽  
The Government ◽  
Adequate Coverage ◽  
The Right ◽  
Restrictive Measures ◽  
The Way

LABURPENA: Azterketa honen xedea hau da: kritikoki aztertzea ea COVID-19aren kontrako borrokaren testuinguruan askatasuna (zirkulazio askerako eta biltzeko eskubidea, funtsean) murrizteko onetsitako neurri ugariak konstituzioan sartzen diren. Ez dago eztabaidagai neurri horiek, kasu gehienetan, beharrezkoak direla, baina bai neurriak nola hartu dituzten. Pandemiaren aurkako borroka egiteko moduari jarritako eragozpen juridiko nagusia da lege-erreserba urratu duela, eta, horrekin batera, segurtasun juridikoaren printzipioari ere kalte egin zaiola. Azterlanak eskema honi jarraitzen dio: lehenik eta behin, lege-erreserbaren konstituzio-esanahia eta -irismena azaltzen dira, gure Konstituzio Auzitegiaren doktrina eta jurisprudentzia finkatuaren arabera; bigarrenik, aztertzen da ea normaltasunaren zuzenbideak (Osasun Publikoaren Arloko Neurri Bereziei buruzko 3/1986 Lege Organikoa, zehazki), oinarrizko eskubideak orokorrean mugatzeko, erreserba horren eskakizunak asetzen dituen edo ez; hirugarrenik, aztertzen da ea, krisi- edo salbuespen-zuzenbidearen barruan, hartutako neurriek alarma-egoeran estaldura egokia duten edo haietakoren batek salbuespen-egoera aktibatzea behar izango zuen; azkenik, kritikoki azaltzen da eskubideak murrizteko neurriak hartzeko eskumena Gobernuko kideei edo autonomia-erkidegoen presidenteei eskuordetzeak eragin duen lege-erreserbaren urraketa. ABSTRACT: The scope of this study is to critically analyze the constitutional fit of the numerous measures restricting freedom - the right to free movement and assembly, fundamentally - that have been approved in the context of the fight against COVID 19. It is not discussed that, in most cases, they are necessary measures, but the way and the form in which they have been adopted are. The main legal objection to the way in which the fight against the pandemic has been carried out is that the reservation of law has been violated and with this the principle of legal certainty has also been damaged. The study follows the following scheme: in the first place, the constitutional meaning and scope of the reservation of law according to the doctrine and consolidated jurisprudence of our Constitutional Court are exposed; secondly, it examines whether the law of normality (specifically LO 3/1986 on Special Measures in Public Health Matters) satisfies or not the requirements of this reservation in order to establish limitations of fundamental rights in a general way; thirdly, it examines whether within the crisis or emergency law, the different measures adopted have adequate coverage in the state of alarm or some of them would have required to activate the state of exception; finally, it critically exposes the violation of the reserve of law that has meant the delegation of the competence to adopt restrictive measures of rights in members of the Government or in presidents of Autonomous Communities. RESUMEN: El objeto de este estudio es analizar críticamente el encaje constitucional de las numerosas medidas restrictivas de la libertad -el derecho a la libre circulación y de reunión, fundamentalmente- que se han aprobado en el contexto de la lucha contra el COVID 19. No se discute que, en la mayor parte de los casos, son medidas necesarias, pero sí el modo y la forma en que se han adoptado. La principal objeción jurídica al modo en que se ha llevado a cabo la lucha contra la pandemia es que se ha vulnerado la reserva de ley y con ello se ha lesionado también el principio de seguridad jurídica. El estudio sigue el siguiente esquema: en primer lugar se exponen el significado y alcance constitucionales de la reserva de ley según la doctrina y la jurisprudencia consolidada de nuestro Tribunal Constitucional; en segundo lugar, se examina si el Derecho de la normalidad (concretamente la LO 3/1986 de Medidas Especiales en Materia de Salud Pública) satisface o no las exigencias de esa reserva a los efectos de establecer limitaciones de derechos fundamentales con carácter general; en tercer lugar se examina si dentro del Derecho de crisis o de excepción, las diferentes medidas adoptadas tienen cobertura adecuada en el estado de alarma o algunas de ellas hubieran requerido activar el estado de excepción; finalmente, se expone críticamente la vulneración de la reserva de ley que ha supuesto la delegación de la competencia para adoptar medidas restrictivas de derechos en miembros del Gobierno o en presidentes de Comunidades Autónomas.

Recognition of a Person’s Rights and Ethical Fulfilment

2017 ◽  
Vol 4 (3) ◽  
pp. 33
Author(s):  
Vereno Brugiatelli
Keyword(s):  
Human Rights ◽  
Self Esteem ◽  
Private Life ◽  
Fundamental Rights ◽  
Ethical Life ◽  
Institutional Conditions ◽  
Level I ◽  
The Right ◽  
Forms Of Violence ◽  
Desperate Attempt

Man's ethical fulfilment often faces objective obstacles in the deprivation of rights. The negation of the recognition of certain fundamental rights, or worse, the radical misrecognition of man, which translates into different forms of violence, often artfully disguised both on an individual and collective level, produces devastating consequences in the private life of a person upsetting all forms of positive self-esteem. The recognition of human qualities, accompanied by the right to express and extend them, is an integral part of the ethical life of each individual and, at the same time, constitutes a fundamental moment in the construction of a responsible civilized community. In this dissertation, I aim to analyse the connection between ethical life and human rights in order to draw attention to the repercussions that the recognition and misrecognition of liberty produce with regard to man's ethical fulfilment. From this perspective, I intend to highlight the importance of the existence of favourable juridical and institutional conditions to ensure ethical fulfilment. At this level, I will underline that the deprivation of capabilities is often the main cause of the profound sense of discontent affecting individuals in their desperate attempt to realise a type of existence which corresponds to their ambitions.

Is There a Right to Free Movement across Borders?

2018 ◽  
Author(s):  
Sarah Song
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Free Movement ◽  
Individual Freedom ◽  
Freedom Of Association ◽  
Human Right ◽  
Freedom Of Movement ◽  
The Third ◽  
The Right ◽  
Logical Extension

Chapter 6 examines three rights-based arguments for freedom of movement across borders. Three rights-based arguments have been offered in support of freedom of international movement. The first claims that freedom of movement is a fundamental human right in itself. The second adopts a “cantilever” strategy, arguing that freedom of international movement is a logical extension of existing fundamental rights, including the right of domestic free movement and the right to exit one’s country. The third argument is libertarian: international free movement is necessary to respect individual freedom of association and contract. This chapter shows why these arguments fail to justify a general right to free movement across the globe. What is morally required is not a general right of international free movement but an approach that privileges those whose basic human rights are at stake.

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