"חוק טובות לנפגעי עבירה" – על חוקתיות החסינות לפגיעה שלטונית בנפגעי עבירה The Right yo Violate Victims' Rights - A Constitutional Review

2019 ◽  
Author(s):  
Michal Tamir ◽  
Dana Pugach
2021 ◽  
pp. 56-65
Author(s):  
Iulian Rusanovschi ◽  

On 17.03.2020, the Parliament declared a state of emergency on the entire territory of the Republic of Moldova for the period March 17 - May 15, 2020. By the same Decision, the Parliament delegated the Commission for Exceptional Situations with the right to implement a series of measures to overcome the epidemiological situation in the country. However, in the conditions of a functioning Parliament and despite the clear and exhaustive texts of the Constitution, the Commission for Exceptional Situations amended during the state of emergency the Contravention Code, which is an organic law. The amendments specifically concerned the procedure and terms for examining infringement cases brought in connection with non-compliance with the measures adopted by the Commission for Exceptional Situations and the Extraordinary Commission for Public Health. In the conditions in which an organic law can be modified only by the Parliament, it is obvious the unconstitutionality, at least partial, of the Disposition no. 4 of 24.03.2020 of the Commission for Exceptional Situations, but unfortunately, the Constitutional Court is not mandated with the right to submit to constitutional review the normative acts adopted by the Commission for Exceptional Situations. Under these conditions, the state is obliged to identify solutions in order not to allow an authority to adopt unconstitutional normative acts that cannot be subject to constitutional review.


Author(s):  
Dimitrios Kyritsis

This chapter critically examines sceptical views about constitutional review of primary legislation. Sceptics argue that constitutional review is illegitimate because it negates political equality. Political equality requires that political decisions be made following procedures that give every citizen’s view equal weight. But constitutional review gives a small group of unelected officials the power to overrule the decisions of democratically accountable legislators. Against the sceptics it is argued that they ignore the significant imbalance of power that exists between elected legislators and the citizens they represent. The former have the power to decide according to their own independent judgment of what is the right thing to do. They act as trustees, not proxies, of their constituents. If we do not object to representative democracy of the kind we are familiar with, we cannot object to constitutional review in the name of political equality.


ICL Journal ◽  
2013 ◽  
Vol 7 (4) ◽  
Author(s):  
Andreas Dimopoulos

AbstractTaking the financial crisis in Portugal, Italy, Greece and Spain, (commonly re­ferred to with the derogatory acronym PIGS), as backdrop to this analysis, the article claims that institutional design in Europe (focusing on Greece and Portugal in particular) has not addressed the state of economic emergency. This gap in institutional design, to­gether with the unpopularity of emergency austerity measures, raises serious doubts con­cerning their legitimacy and constitutionality.The article analyses two theoretical responses to this grey area of constitutional legality: the first one construes social unrest in Greece against austerity measures as a legitimate exercise of the right to resistance, entrenched in Art 120 of the Greek Constitution.The second response selected for analysis is the constitutional review of austerity meas­ures by the Portuguese Constitutional Court, which is presented as a robust example of successful constitutional review.The article argues that constitutional review with regards to emergency financial measures oscillates between strict adherence to the rule of law and deference to legislative authority in a time of economic crisis, thus raising serious doubts as to its efficiency and persuasive­ness. States of economic emergency should be addressed as an urgent matter of institu­tional design.


2021 ◽  
Vol 8 (5) ◽  
Author(s):  
Nanang Nur Wahyudi ◽  
Nynda Fatmawati Octarina

Hak Politik dilindungi hukum, baik secara internasional maupun nsional. secara internasional, hak politik diatur Universal Declaration of Human Rights (UDHR) dan International Covenant on Civil and Political Rights (ICCPR). hak politik juga dilindungi konsitusi kita dan beberapa peraturan Perundang-Undangan lainnya, serutama Undang-Undang no 39 tahun 1999 tentang Hak Asasi Manusia. Adanya ketentuan yang merupakan syarat untuk mencalonkan diri pada pemilihan yang jelas membatasi bahkan meniadakan hak seseorang untuk ikut serta dalam menggunakan hak azasinya. Hal ini jelas merupakan pelanggaran terhadap hak azasi seseorang, yang dalam hal ini hak politik yang dimiliki oleh seorang mantan narapidana khususnya pada kasus korupsi. Apabila kita mencermati ketentuan UUD 1945, maka seorang mantan narapidana juga sebagai warga negara yang memiliki hak politik yang sama dengan warga negara lainnya. Hak Uji materiel terhadap peraturan yang  bertentangan dengan Undang-Undang Dasar 1945, maka kewenangan hak menguji ada pada Mahkamah Konstitusi (MK). Putusan Mahkamah Konstitusi memberi kepastian hukum bahwa seorang mantan Narapidana kasus korupsi masih diperbolehkan untuk mencalonkan diri pada pemilihan kepala daerah karena mantan narapidana masih memiliki hak politik sebagai warga negara. Untuk dapat mencalonkan diri pada pemilihan kepala daerah, maka mantan narapidana setelah melewati masa 5 (lima) tahun  selesai menjalani masa hukuman dan telah kembali kepada kehidupan masyarakat sebagaimana kehidupan masyarakat lainnya. Menghormati hak politik mantan narapidana kasus korupsi sebagai pengakuan terhadap hak azasi manusia dalam negara Republik Indonesia yang merupakan hak konstitusional yang diatur dalam UUD Tahun 1945. Kata Kunci : Narapidana, Judisial Review, Hak, Putusan Mahkamah Konstitusi ABSTRACTPolitical rights are protected by law, both internationally and nationally. Internationally, political rights are regulated by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Political rights are also protected by our constitution and several other laws and regulations, especially Law No. 39 of 1999 concerning Human Rights. There is a provision which is a requirement to run for election which clearly limits and even negates a person's right to participate in exercising their human rights. This is clearly a violation of a person's human rights, which in this case the political rights of an ex-convict, especially in cases of corruption. If we look at the provisions of the 1945 Constitution, an ex-convict is also a citizen who has the same political rights as other citizens. The right to judicial review of regulations that are contrary to the 1945 Constitution, the authority of the right to examine lies with the Constitutional Court (MK). The Constitutional Court's decision provides legal certainty that a former convict in a corruption case is still allowed to run for regional head elections because ex-convicts still have political rights as citizens. To be able to run for regional head elections, ex-convicts after passing through a period of 5 (five) years have finished serving their sentence and have returned to community life as other people's lives. Respect the political rights of ex-convicts of corruption cases as an acknowledgment of human rights in the Republic of Indonesia which are constitutional rights regulated in the 1945 Constitution. Keywords: Prisoners, Judicial Review, Rights, Constitutional Court Decisions


2020 ◽  
Vol 18 (1) ◽  
pp. 51-77
Author(s):  
David Kenny ◽  
Conor Casey

Abstract Political constitutionalism is a major area of inquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and it is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions—Canada, New Zealand, and the UK—we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon “shadow constitutional review,” and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.


2011 ◽  
Vol 44 (1-2) ◽  
pp. 63-89 ◽  
Author(s):  
Miriam Gur-Arye ◽  
Thomas Weigend

Criminal laws must conform to each state's constitutional law. In both Israel and Germany, the highest courts have ruled on the compatibility of criminal prohibitions with constitutionally protected rights. One recurrent issue is the relationship between criminal prohibitions and the right to liberty, which is constitutionally guaranteed in both countries. The authors show that there are clear parallels in the case law of Israeli and German courts with regard to liberty. Human dignity is likewise protected in both legal systems, although it plays a different role in each. Under article 1(1) of the German Basic Law, human dignity enjoys “absolute” protection, which leads to problems in defining human dignity and accommodating countervailing interests in individual cases. In Israel, by contrast, human dignity is placed on the same level as liberty in the constitutional hierarchy of rights and is not afforded any “special treatment” by the Supreme Court. The authors suggest an intermediate solution: human dignity should not be granted “absolute” protection but should be treated with the greatest respect when criminal laws are reviewed for their constitutionality.


2020 ◽  
Vol 11 ◽  
pp. 67-72
Author(s):  
Tatyana A. Vasilyeva ◽  

The Canadian system of human rights protection is an original one. The Supreme Court of Canada is one of the most influential constitutional review bodies in the field of human rights. At the time of its adoption, the Canadian Charter of rights and freedoms had the broadest catalog of equality rights in Western countries, formed on the basis of the Bill of rights and provincial human rights codes case-law, as well as the activities of political movements and groups of equality advocates who played a decisive role in its drafting. In Canada, a distinction is made between the enumerated in Charter and analogous grounds of discrimination established by court. The plaintiffs may claim differences on the basis of the enumerated or analogous grounds, or indicate the necessity to establish new analogous grounds. Article 15 (the right to equality) is recognized as one of the most conceptually complex provisions of the Charter. It is aimed at ensuring equality in the process of law drafting and implementation, as well as protecting human dignity. The Supreme Court of Canada is considering the provisions of the first part 1 of article 15, which enshrines the right to equality, and part 2 of this article, which provides for affirmative actions to assist disadvantaged groups as interrelated, reflecting the understanding of equality according to which affirmative actions are considered not as an exception, but as one of its best manifestations.


In the article, a comparison is made between constitutional review and judicial review exercised by courts of general jurisdiction in Russia on the basis of comparative-law methodology. The author concludes that it is necessary to empower citizens with the right to consider their appeals within the framework of abstract review by courts of general jurisdiction. A proposal has also been formulated on granting the right to appeal for the protection of the rights of citizens and their associations within the framework of the Russian Code of Administrative Procedure (CAP), the Commissioner for Human Rights in Russian Federation, the Commissioner for Children’s Rights, the Commissioner for the Rights of Business-Owners, and also the other Commissioners for these areas on the subjects of the Russian Federation, and the deputies of all levels – from municipal to federal. The author states that with the adoption of the CAP, the problem of checking federal regulations that have less legal force than Decrees of the Government of the Russian Federation for compliance with the Russian Constitution has not been resolved. It is suggested vesting the courts of general jurisdiction with the right to exercise administrative and judicial control over compliance of such acts with the Russian Constitution. The article reveals the problem of lack of terminological unity in the legal regulation of similar institutions of constitutional and administrative judicial review. The need to unify a number of norms of constitutional and administrative legislation on regulatory control issue is emphasized.


2016 ◽  
pp. 11-21
Author(s):  
ALEXANDRU TĂNASE

This study analyses the Judgment of the Constitutional Court of Moldova no. 2 of 9 February 2016 for the interpretation of Article 135 para. (1) letters a) and g) of the Constitution of the Republic of Moldova (exception of unconstitutionality), by which it has been decided that the right to raise the exception belongs to all courts of law, respectively to judges who belong to such courts, and the challenge regarding the constitutional review of certain rules which are to be applied in the settlement of a case shall be submitted directly to the Constitutional Court by the judges/panels of judges in the Supreme Court of Justice, courts of appeal and courts, where the case is at issue. Opening to every individual the opportunity to raise the exception of unconstitutionality, the existing mechanism for the protection of human rights has been redefined, representing the first significant step towards the introduction of an individual complaint to the Constitutional Court.


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