scholarly journals The Right Of Ownership In The European Law

2016 ◽  
Vol 12 (22) ◽  
pp. 26
Author(s):  
Valbona Alikaj
Keyword(s):  
Private Property ◽  
Social Function ◽  
Fundamental Rights ◽  
Good Time ◽  
General Interest ◽  
European Court ◽  
The Social ◽  
Fair Compensation ◽  
General Economic Interest ◽  
The Right

The paper is about the case of the right of ownership, the social function that the constitutions of some western countries recognize to this rights and the balance of this right with other public interests. The right of ownership has a great importance even in the European judicial order. The right of ownership has undergone many changes with the creation of a single European market, so that nowadays we could not talk about only one ownership category. Special attention will be dedicated to the article 17 of the EU Charter of Fundamental Rights according to which everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. The limitation of this right will be legislated toward the public interest and toward a fair compensation being paid in a good time. In its decisions, the European Court of Justice has stated that the property as a fundamental right is described not as an absolute right, for the European judge the social function has to do with the general interest that is the basis of each treaty, that is the free and full competition. The private property for the jurisprudence of the community is a fundamental right, but it could be limited due to the general economic interest that aim to be realised.

Article 17 CFR

2019 ◽  
Author(s):  
Tobias Lock
Keyword(s):  
Public Interest ◽  
Good Time ◽  
General Interest ◽  
The Public ◽  
Fair Compensation ◽  
The Right

Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest.

scholarly journals LIBERALISM, SOCIAL DEMOCRACY AND THE VALUE OF PROPERTY UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

2010 ◽  
Vol 59 (4) ◽  
pp. 1055-1078 ◽  
Author(s):  
Tom Allen
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
European Convention ◽  
Legal Person ◽  
General Interest ◽  
The Public ◽  
European Court ◽  
Full Compensation ◽  
The Right ◽  
Fair Balance

In most of Europe, expropriation must comply with the standards set under European human rights law. Article 1 of the First Protocol (‘P1-1’) to the European Convention on Human Rights declares that ‘every natural or legal person is entitled to the peaceful enjoyment of his possessions.’ The European Court of Human Rights has stated that the right would be ‘largely illusory and ineffective’ if it did not guarantee full compensation in all but exceptional circumstances.1It is quite clear, however, that this was not the belief of at least some of the States that had signed it when it came into force in 1954. P1-1 makes no reference to compensation. An interference must be lawful, and in the public or general interest, but there is nothing that expressly requires compensation. Nevertheless, the Court has declared that any interference with the right to the peaceful enjoyment of possessions must strike a ‘‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights’,2and this means that expropriation without compensation that is reasonably related to the value of the property would normally violate the owner's rights under P1-1.3

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.

scholarly journals Mexican Medical Students Protest During Covid-19 Pandemic

2021 ◽  
Author(s):  
Gabriela Torres-Hernández ◽  
Patricio García-Espinosa ◽  
Edgar Botello-Hernández ◽  
Diego Ortega-Moreno
Keyword(s):  
Medical Students ◽  
Social Service ◽  
Rural Areas ◽  
Working Hours ◽  
Fundamental Rights ◽  
City Hall ◽  
The Social ◽  
The Right ◽  
The City ◽  
Precarious Situation

During February  2021, a protest was organized by Mexican medical students through social media. About 200 interns, social service physicians and physicians protested peacefully in front of the city hall of Monterrey, Nuevo Leon, the capital of Mexico's second largest metropolitan area. Due to the current contingency situation, it was requested to attend with face shield and masks. The reason for the protest was to raise their voice due to the precarious situation where social service physicians are sent to rural areas of the country in which they have all the obligations of workers but without belonging to the working class - lacking the the benefits of this same as a living wage or fair working hours. The protesters were in limbo between student and worker. The protest also demanded justice for the sensitive death of young doctors due to malpractice situations of the Mexican authorities. We believe that a total reform of the social service in medicine is necessary. It is the responsibility of the authorities to cover the rural areas with permanently trained doctors without depending on recently graduated doctors. It is always important to assert our fundamental rights, including the right to protest in a peaceful manner.

The Contemporary Reception of St Thomas on Law and Politics

2021 ◽  
pp. 611-625
Author(s):  
Michael Pakaluk
Keyword(s):  
Private Property ◽  
Political Liberalism ◽  
Political Society ◽  
Human Beings ◽  
Social Nature ◽  
Law And Politics ◽  
The Social ◽  
The Family ◽  
The Right

The reception of Thomistic political and legal philosophy is considered with respect to what is called ‘political liberalism’. The appeal to a hypothetical state of nature should be rejected, as it misconstrues the social nature of human beings. Aquinas’ account of the origin of political society starts from an interpretation of human nature. On this basis one can account for human rights, the importance of the right to religious liberty, the family as the basic cell of society, civil society as including subsidiary authorities, the importance of private property, and the nature and role of freedom. A key question for the continued flourishing of a free society is what practically enables persons to govern for the genuine good of others.

In The Face of Financialization: Cities and the Human Right to Adequate Housing

2021 ◽  
Vol 30 (1) ◽  
pp. 107-130
Author(s):  
Kaara Martinez
Keyword(s):  
Affordable Housing ◽  
The United States ◽  
Human Right ◽  
Social Good ◽  
Cultural Rights ◽  
European Court ◽  
The Social ◽  
The Face ◽  
Full Sense ◽  
The Right

The right to housing is a human right with broad but frequently overlooked implications, particularly in the urban environment. This difficulty is heightened in the context of what is known as the “financialization of housing”. Financialization involves the interconnections between global financial markets and housing, and, at the extreme, has prompted a climate in which housing is conceived less as a social good and more as a commodity. The result of the financialization turn is cities with a severe lack of affordable housing, a reality that is now a global phenomenon. This naturally leads to economic exclusions and displacements from cities, but, on a deeper level, also entails major collective consequences for the social and cultural fabric. Financialization thus threatens the right to housing in cities, particularly when the right is examined and understood in its full sense. And yet, cities have a duty to ensure the right to housing even in the face of financialization. Drawing on the jurisprudence of the Committee on Economic, Social and Cultural Rights through its individual communications procedure, the European Court of Human Rights, and domestic cases from South Africa and the United States, this paper aims to elucidate this duty of cities in the realm of housing. A substantive rather than purely procedural shape of protection for the right to housing is pushed, which deliberates the connections between housing and the wider societal context, and the implicated concerns of resources, property, and urban community. In present times, our appreciation of home as a necessary nexus of safety, comfort, and productivity has come to the fore, as have our fears around economic insecurity, forcing us to confront and closely interrogate the right to housing.

Multilevel Constitutionalism and the Propertisation of EU Copyright

2021 ◽  
pp. 241-266
Author(s):  
Caterina Sganga
Keyword(s):  
Careful Analysis ◽  
Social Function ◽  
Fundamental Rights ◽  
Cultural Policies ◽  
The Social ◽  
Eu Copyright Law ◽  
The Common ◽  
Property Model ◽  
The Eu

This chapter examines the common mantra in contemporary scholarship that the constitutionalisation of copyright as property right has contributed to the reinforcement of its protection vis-à-vis other interests and rights, with distortive consequences on the already fragile copyright balance. In the EU, this fear has been reinforced by the language of Art 17(2) CFREU (‘intellectual property shall be protected’). However, the chapter argues that a more careful analysis proves this narrative wrong and simplistic because it ignores elements which could open the door to different interpretative results, where the classification of copyright under the umbrella of constitutional property may, instead, create internal limits to authors' exclusive rights and lead to their functionalisation to alternative goals chosen for the copyright system. It demonstrates how the property model stemming from the combination of common constitutional traditions and EU sources is not absolute, but carries the imprint of the social function doctrine, which limits property rights from inside their structure. The chapter then contends that a correct constitutional propertisation of EU copyright law would not tilt the balance between copyright and other fundamental rights, and that between copyright and the EU social and cultural policies but, rather, would but preserve and guide such balancing exercises.

G.L. v. Italy

2000 ◽  
Vol 11 (7-8) ◽  
pp. 441-447
Keyword(s):  
Property Rights ◽  
Fundamental Rights ◽  
General Interest ◽  
Judicial Decision ◽  
Wide Margin ◽  
Judicial Decisions ◽  
Margin Of Appreciation ◽  
The Right ◽  
Relationship Of ◽  
Fair Balance

An interference with property under the second paragraph of Article 1 of Protocol No. 1 must strike a “fair balance” between the demands of the general interest and the requirements of the protection of the individual's fundamental rights. There must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question. The Italian system of staggering of the enforcement of court orders of evictions is not in itself open to criticism, having regard in particular to the margin of appreciation permitted. However, such a system carries with it the risk of imposing on landlords an excessive burden in terms of their ability to dispose of their property and must accordingly provide certain procedural safeguards so as to ensure that the operation of the system and its impact on a landlord's property rights are neither arbitrary nor unforeseeable. In this case, the landlord had to wait six years and could not apply to a judge for either enforcement or compensation for the delay. Moreover, the right to a court also protects the implementation of final, binding judicial decisions, which cannot remain inoperative to the detriment of one party. Accordingly, the execution of a judicial decision cannot be unduly delayed. While States may, in exceptional circumstances and by availing themselves of their margin of appreciation to control the use of property, intervene in proceedings for the enforcement of a judicial decision, the consequence of such intervention should not be that execution is prevented, invalidated or unduly delayed or, still less, that the substance of the decision is undermined.

scholarly journals Participación inclusiva en los museos a favor de las personas con discapacidad

2019 ◽  
pp. 90-99
Author(s):  
Julio Meza Díaz
Keyword(s):  
Human Rights ◽  
Social Function ◽  
Equal Rights ◽  
Persons With Disabilities ◽  
Derechos Humanos ◽  
Palabras Clave ◽  
The Social ◽  
The Right ◽  
Culture Development

El presente artículo trata sobre la función social del museo y sus acciones a favor de los derechos igualitarios de las personas con discapacidad, dentro de lo establecido por la Convención Sobre los Derechos de las Personas con Discapacidad (CDPD). Los museos pueden efectivizar los derechos contenidos en el artículo 30 de la CDPD, es decir, el derecho a la accesibilidad a la cultura y a la posibilidad del desarrollo de una agencia artística.  Palabras clave: museos, discapacidad, derechos humanos, accesibilidad a la cultura, desarrollo de la agencia en el campo de la cultura.   AbstractThis paper deals with the social function of the museum and its actions in favor of the equal rights of persons with disabilities, within the provisions of the Convention on the Rights of Persons with Disabilities (CDPD). Museums can make effective the rights contained in article 30 of the CRPD, that is, the right to access to the culture and the right to the possibility to develop an artistic agency. Keywords: museums, disability, human rights, accessibility to culture, development of the agency in the field of culture.

scholarly journals Tajemnica adwokacka jako element realizacji prawa do sprawiedliwego procesu sądowego oraz prawa do poszanowania korespondencji

2021 ◽  
Vol 33 (2) ◽  
pp. 7-21
Author(s):  
Natalia Banach ◽  
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Private Life ◽  
Fundamental Rights ◽  
Moral Norms ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Republic ◽  
The Right

The issue of exemption from the attorney-client privilege and the nature of this attorney-client privilege is widely discussed both in the literature on the subject and in the doctrine. In order to analyze this subject, it was necessary to interpret the provisions of the Law on the Bar Ac (26 May 1982), the provisions of the Code of Bar Ethics (23 December 2011) the Constitution of the Republic of Poland (2 April 1997), both guarantees enshrined in the Convention for the Protection of Human Rights and Fundamental Rights of liberty from 1950. The interpretation was made in conjunction with Polish case law common courts and case law of the European Court of Human Rights. This also presents the view of the polish Ombudsman’s Office. Given that the professional secrecy of lawyers is an inseparable element of justice, it would be wrong to omit the generally accepted moral norms of society in relation to the procedural role of a lawyer. The thesis put forward that the professional secrecy of lawyers is part of the implementation of the right to a fair trial and the right to respect for private life. The purpose of the work was to emphasize the essence of lawyers’ secrecy as an inseparable element of defense of the parties to the proceedings and to indicate interpretation differences between Polish courts and the case law of the European Court of Human Rights.

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