scholarly journals Libertad de expresión y derecho de defensa frente al ius puniendi de la administración: una visión a la luz de la más reciente jurisprudencia constitucional = Freedom of expression and right of defense opposite to the ius puniendi of the administration: a vision in the light of the most recent constitutional jurisprudence

2017 ◽  
pp. 135
Author(s):  
José Mateos Martínez
Keyword(s):  
Present Article ◽  
Freedom Of Expression ◽  
Civil Servant ◽  
Constitutional Court ◽  
First Person ◽  
Legal Aid ◽  
Disciplinary Process ◽  
The Right ◽  
Constitutional Jurisprudence

RESUMEN: El presente artículo analiza el reforzamiento de la libertad de expresión que se produce cuando ésta es ejercida en conexión con el derecho de defensa, y se centra en un concreto supuesto que ha sido recientemente examinado por el Tribunal Constitucional: el ejercicio del derecho de defensa en primera persona por un funcionario que es objeto de un expediente disciplinario. A la vez que estudiamos la solución dada por el TC al citado caso, reflexionamos sobre los efectos de la misma más allá del caso específico que resuelve, planteando la posibilidad de su extrapolación a la generalidad de supuestos donde el ciudadano ejerce su derecho de defensa en primera persona y sin asistencia letrada. ABSTRACT: The present article analyzes the reinforcement of the freedom of expression that takes place when this one is exercised in connection by the right of defense, and centres on a concrete supposition that has been recently examined by the Constitutional Court: the exercise of the right of defense in the first person for a civil servant who is an object of a disciplinary process. Simultaneously that we study the solution given by the Constitutional Court to the mentioned case, we think about the effects of the same one beyond the specific case that resolves, raising the possibility of its extrapolation to the generality of suppositions where the citizen exercises his right of defense in the first person and without legal aid service.PALABRAS CLAVE: libertad de expresión, derecho de defensa, funcionario público, autotutela, expediente disciplinario.KEYWORDS: freedom of expression, right of defense, civil servant, autoguardianship, disciplinary process.

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

ICL Journal ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Kerstin Braun
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Constitutional Court ◽  
Supreme Court Of Canada ◽  
Assisted Dying ◽  
Constitutional Courts ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Right ◽  
Constitutional Jurisprudence

Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

Thailand’s Law on Criminal Online Falsehoods: A Critical Discussion

2021 ◽  
pp. 150-172
Author(s):  
Lasse Schuldt ◽  
Pudit Ovattananavakhun
Keyword(s):  
Criminal Law ◽  
Main Part ◽  
Freedom Of Expression ◽  
Critical Discussion ◽  
Fake News ◽  
Depth Analysis ◽  
Legislative Amendments ◽  
Principle Of Proportionality ◽  
The Right ◽  
Constitutional Jurisprudence

This article critically discusses the Thai criminal law applicable to online falsehoods, namely Section 14 para. 1(1) and (2) of the Act on Computer-Related Offences. Linking developments in Thailand to global and Southeast Asian fake news discourses, the article’s main part sheds light on several interpretational and constitutional complexities. Conflicting concepts of falsity and an uncertain ambit of protected interests are found to persist despite legislative amendments. As the right to freedom of expression in principle also protects false factual statements, recent constitutional jurisprudence on the principle of proportionality is applied to evaluate the prescribed level of criminal punishment. The article provides an in-depth analysis that contributes to the evolving scholarship on the challenges of regulatory responses to fake news.

scholarly journals Menyoal Kebebasan Beragama dan Penodaan Agama Di Indonesia

2015 ◽  
Vol 3 (2) ◽  
pp. 195-212
Author(s):  
Yayan Sopyan
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Religious Beliefs ◽  
Freedom Of Expression ◽  
Freedom Of Speech ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Reform Era ◽  
The Republic ◽  
The Right

Abstract: Questioning the Religious Freedom and blasphemy in Indonesia. The presence of the Constitutional Court in the reform era is the strengthening of the foundations of constitutionalism in the Constitution of the Republic of Indonesia Year 1945. The Court in this case a role to enforce and the protector of the citizen's constitutional rights and the protector of the human rights. Including in this case, the right to religion and religious practices and teachings of their respective religions, in accordance with the constitutional mandate. However, on the other hand there is the discourse of freedom of expression and freedom of speech includes freedom to broadcast religious beliefs and understanding of the "deviant" and against the "mainstream" religious beliefs and understanding in general, as in the case of Ahmadiyah. The Court in this case is required to provide the best attitude when faced judicial review in this case still required in addition to guarding the constitution in order to run properly.   Abstrak: Menyoal Kebebasan Beragama dan Penodaan Agama di Indonesia. Kehadiran lembaga Mahkamah Konstitusi di era reformasi merupakan upaya penguatan terhadap dasar-dasar konstitusionalisme pada Undang-Undang Dasar Negara Republik Indonesia Tahun 1945. MK dalam hal ini berperan menegakkan dan melindungi hak-hak konstitusional warga negara (the protector of the citizen’s constitutional rights) dan pelindung HAM (the protector of the human rights). Termasuk dalam hal ini, hak untuk memeluk agama dan menjalankan ibadah serta ajaran agamanya masing-masing, sesuai dengan amanat konstitusi. Namun, disisi lain ada wacana kebebasan berekspresi dan kebebasan berpendapat termasuk didalamnya kebebasan untuk menyiarkan keyakinan dan pemahaman keagamaan yang “menyimpang” dan bertentangan dengan “mainstream” keyakinan dan pemahaman keagamaan pada umumnya, seperti dalam kasus Ahmadiyah. MK dalam hal ini dituntut untuk mampu memberikan sikap terbaik saat dihadapkan judicial review dalam kasus ini selain tetap dituntut untuk mengawal konstitusi agar dapat berjalan sebagaimana mestinya. DOI: 10.15408/jch.v2i2.2314

scholarly journals Has the Balance been Struck The Decision in Johncom Media Investments Limited v M 2009 4 SA 7 (CC)

2017 ◽  
Vol 14 (1) ◽  
pp. 215
Author(s):  
Latiefa Albertus
Keyword(s):  
Freedom Of Expression ◽  
Constitutional Court ◽  
The Right

The case of Johncom Media Investments Limited v M 2009 4 SA 7 (CC) required of the Constitutional Court to strike a balance between the rights to privacy and the right to freedom of expression as a consequence of section 12 of the Divorce Act 70 of 1979. According to the Court, it felt that the "remedy" it provided was the best under the circumstances. However, there are certain concerns regarding the Court’s judgment which require clarification, possibly through legislative intervention

The right to the protection of religious feelings versus freedom of expression in the light of the Constitution of the Republic of Poland and the European Convention on Human Rights

2019 ◽  
Vol 1 (2) ◽  
pp. 58-83
Author(s):  
Janusz Roszkiewicz
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Point Of View ◽  
European Convention ◽  
Constitutional Court ◽  
A Value ◽  
European Court ◽  
The Republic ◽  
The Right

This article concerns the right to the protection of religious feelings as a value which justifies a restriction of freedom of expression. The right to the protection of religious feelings can be protected by three methods: civil, penal and administrative. The issue is discussed from the point of view of the Constitution of the Republic of Poland and the European Convention on Human Rights, with particular emphasis on the case-law of the Polish Constitutional Court and the European Court of Human Rights in Strasbourg.

31 Art. 92 et seq. GG: Jurisprudence

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Functional Element ◽  
Judicial Power ◽  
Constitutional Court ◽  
Federal Constitutional ◽  
Legal Position ◽  
The Right ◽  
Constitutional Jurisprudence

This chapter discusses the position of the Federal Constitutional Court with regard to judicial power, taking into account the relevant provisions of Art. 92 et seq. of the Grundgesetz (GG). In particular, it examines those aspects which cast light on the distinctive position of constitutional jurisprudence within the overall framework of judicial power. To this end, the chapter analyses the Court's jurisprudence, citing an instance in which it used a constitutional complaint concerning tax notices and penalties to address the concept of ‘judicial power’. It also considers a 2001 ruling by the Court, which added a functional element to the concept of the judicial power in a case involving the Election Review Court; the legal position of judges, which the Court describes as having three pillars — ‘objective independence’, ‘personal independence’, and ‘organisational independence’; and the Court's emphasis on the importance and substance of the right to a lawful judge.

scholarly journals Freedom of Expression: what lessons should we learn from US experience?

2017 ◽  
Vol 13 (1) ◽  
pp. 274-302
Author(s):  
Ronaldo Porto Macedo Junior
Keyword(s):  
Conceptual Analysis ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Constitutional Court ◽  
Right Wing ◽  
Religious Discrimination ◽  
Religious Groups ◽  
European Model ◽  
The Us ◽  
The Right

Abstract Freedom of Expression is becoming a theme of growing importance and visibility in Brazil. Newspapers report daily legal suits against “hate speech” concerning race and religious discrimination. Many courts are also imposing high compensation damages that are challenging the “right to ridicule” in comedy shows and newspapers cartoons. The Brazilian public opinion in general tends to be sympathetic to more restrictive rules that may threaten freedom of expression in Brazil. There is nowadays in Brazil an unexpected agreement among the right wing, religious groups, and many human rights movements that support a European model of free speech. In many ways, the “Brazilian Model” based on balancing doctrine and a vague conceptualization of Human Dignity gives a lot of discretion for courts to decide the limits of freedom of expression. Court decisions based on balancing rhetoric is becoming dominant in Brazilian Constitutional court and usually try to avoid some epistemological issues concerning objectivity and moral justification. This article advocates that Brazilian interpretation of freedom expression has a lot to learn from the US model and doctrine. The US more strict and conceptual jurisprudence on this issue offers a powerful and democratic alternative to the balancing model and represents a rich conceptual analysis still unknown by Brazilian courts.

Concepts of National and Constitutional Identity in Croatian Constitutional Law

2017 ◽  
Vol 42 (4) ◽  
pp. 263-293
Author(s):  
Jurij Toplak ◽  
Djordje Gardasevic
Keyword(s):  
Minority Language ◽  
Constitutional Court ◽  
Parliamentary Elections ◽  
Future Developments ◽  
National Minorities ◽  
Legal Context ◽  
Constitutional System ◽  
The Right ◽  
Constitutional Jurisprudence ◽  
Constitutional Identity

The Croatian Constitutional Court recently rendered two important decisions concerning two national minorities’ rights: the right to vote in parliamentary elections; and the right to use minority language. In both decisions, the Court relied on a newly developed concept of Croatian national identity. This article explores and critically explains the wider social, political and legal context that has produced the emergence of the idea of a constitutional identity in Croatian constitutional jurisprudence. In addition, it evaluates the potential effects this new constitutional concept may have for future developments in Croatia’s political and constitutional system. This article also compares Croatian and Slovenian solutions to certain questions as the Slovenian Constitutional Court has ruled on strikingly similar issues, but arrived at different conclusions.

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 Extremism. Juridical Abstraction. Problems of Demarcating the Freedom of Expression

2019 ◽  
Vol 13 (4) ◽  
pp. 629-640
Author(s):  
Vladimir Suchkov ◽  
Vladimir Filonov
Keyword(s):  
Russian Federation ◽  
Negative Impact ◽  
Freedom Of Expression ◽  
Local Level ◽  
Constitutional Court ◽  
National Courts ◽  
The Russian Federation ◽  
The Law ◽  
Definition Of ◽  
The Right

The authors examine the juridical idea of extremist used in the criminal law of the Russian Federation. This work is an attempt to solve the problem of differentiating between this concept and the freedom of expression. The establishment of boundaries and limits of these phenomena is important for both lawmakers and law enforcers. The authors use the attributes of the phenomenon of «extremism» in an attempt to understand its form and contents. To achieve this, they analyze views on different scholars on extremism, the law and its amendments, clarifications of the highest court authorities of the country regarding the object of this research, and study the doctrinal practice of experts – linguists and psychologists. They synthesize the discovered meanings of extremism and identify its features. The obtained information allowed the authors to conclude that the definition of extremism formulated in the law is not precise, it lacks clear boundaries and, at the categorial level, could be viewed as an abstract concept. This concept, incorporated in the law, has a negative impact on the quality of the law and impedes the right choice of interpretation by national courts. The fuzziness of legal prescriptions has not yet been eliminated by the Constitutional Court of the Russian Federation and the law enforcement practice of the Supreme Court of the Russian Federation. All this creates endless opportunities for interpreting the law at the local level. The authors present disturbing statistics that show a tremendous growth in the number of offences in this area in recent years. They believe that the cause of the problem is the above-mentioned law that allows excessive interpretation by the law enforcer. The presented research deals with the bottlenecks of constitutional law as it analyzes the freedom of expression with its boundaries and limits. The authors discuss the conflict of constitutional and criminal laws from the viewpoint of enforcing specific law clauses. The research includes constructive criticism of the instruments used by experts (linguists and psychologists) who perform their tasks for criminal cases and materials on speech goals, which belongs to the domain of criminalistics. The authors present their own vision of this problem based on the opinion of scholars, historical experience and court practice.

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