scholarly journals Correlation of Formal Clarity and Rule of Law

2021 ◽  
Vol 80 (1) ◽  
pp. 28-34
Author(s):  
Е. Є. Сілантьєва
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
European Commission ◽  
Rule Of Law ◽  
Comprehensive Analysis ◽  
Legal Requirements ◽  
The Rule Of Law ◽  
Complex Characteristic ◽  
Protection Of Human Rights ◽  
Venice Commission

Comprehensive analysis of approaches to understanding the essence of the categories of “rule of law” and “formal clarity” has been carried out within the framework of the conducted research. The author in order to properly understand the category of “rule of law”, has provided the views of both international and domestic researchers, who determine its essence. The author of the work has determined the content of the concept of the rule of law on the basis of the characteristics of the rule of law. A comprehensive analysis of the reports of the European Commission and the Venice Commission on the elements of the rule of law has been conducted. Particular attention has been also paid to the essence of the rule of law principles, which are reflected in those documents. The main requirements relating to the rule of law principle, as well as the main purpose of this principle have been provided. The author has conducted the analysis of approaches to understanding and clarifying the essence of formal clarity provided to this category by both domestic and international researchers. The main requirements for formal clarity have been provided. The procedural requirements inherent in formal clarity have been also separately mentioned in the research. On the basis of the conducted complex characteristic and defining the essence of the categories of “rule of law” and “formal clarity” the author has carried out the analysis of their parity. The approaches of domestic and international researchers in this regard have been provided. It has been emphasized that one of the fundamental aspects of the protection of human rights and freedoms is the formal clarity of law. It has been noted in the conclusion that the formal clarity of law implies a set of precise, unambiguous and transparent legal requirements for both lawmaking and law-enforcement processes designed to ensure the realization of human rights, interests and freedoms, as well as protection against possible manifestations of state arbitrariness that makes it possible to avoid a number of mistakes, offenses and misunderstandings of life situations.

scholarly journals KENDALA DALAM PELAKSANAAN FUNGSI BALAI PEMASYARAKATAN DALAM PERLINDUNGAN HAK ASASI MANUSIA PADA SISTEM PERADILAN ANAK

2021 ◽  
Vol 3 (2) ◽  
pp. 94-100
Author(s):  
Nuryuli Nurdin ◽  
Baso Madiong ◽  
Yulia A. Hasan
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Rule Of Law ◽  
Justice System ◽  
The Rule Of Law ◽  
Protection Of Human Rights ◽  
Law Enforcement Officials ◽  
Three Stages ◽  
Collection Methods

Penelitian ini bertujuan untuk mengetahui Pelaksanaan Fungsi Balai Pemasyarakatan (BAPAS) Makassar Dalam Perlindungan Hak Asasi Manusia Pada Sistem Pidana Anak dan Kendala Balai Pemasyarakatan dalam Perlindungan Hak Asasi Manusia Pada Sistem Peradilan Anak. Penelitian merupakan penelitian normatif. Metode Pengumpulan Data melalui wawancara dan dokumentasi. Teknis Analisis data ini merupakan analisis kualitatif. Hasil penelitian menunjukkan bahwa Balai Pemasyarakatan kelas I Makassar sebagai salah satu penegak hukum khususnya dalam pembimbingan terhadap anak nakal menjalankan perannya tersebut melalui tiga tahap, yaitu tahap Pra ajudikasi, tahap ajudikasi dan tahap Post ajudikasi. Faktor kendala yang dihadapi dalam pelaksanaan Fungsi Balai Pemasyarakatan (BAPAS) antara lain kelemahan aturan hukum yang berlaku terhadap tindak pidana anak, kurangnya koordinasi diantara sesama aparat penegak hukum, rendahnya kualitas sumber daya manusia di BAPAS, and kurang Sarana dan Prasarana yang memadai. Mengakibatkan pelaksaan Fungsi Balai Pemasyarakatan (BAPAS) kurang optimal, dan alokasi anggaran dana yang sangat minim. This study aims to determine the implementation of the function of Makassar Correctional Center (BAPAS) in the Protection of Human Rights in the Criminal Justice System of Children and the Obstacles of the Correctional Center in the Protection of Human Rights in the Justice System of Children. This research is normative research. Data collection methods were through interviews and documentation. Technical analysis of the data is a qualitative analysis. The results showed that Correctional Center Class I Makassar as one of the law enforcers, especially in guiding delinquents carried out their roles in three stages, which are the Pre-adjudication stage, the adjudication stage and the Post-adjudication stage. Obstacles faced in the implementation of the function of Correctional Center (BAPAS) are weaknesses in the rule of law that applies to the crimes of children, lack of coordination among law enforcement officials, low quality of human resources at BAPAS, and lack of adequate facilities and infrastructure. As a result, the implementation of the function of Correctional Center (BAPAS) is not optimal, and the budget allocation for funds is very minimal.

Opinia prawna w sprawie rekomendacji Komisji Weneckiej dotyczących wyborów w stanach nadzwyczajnych i ich znaczenia dla wyborów prezydenckich w Polsce w 2020 r.

2021 ◽  
Vol 2(163) ◽  
pp. 243-265
Author(s):  
Dariusz Dudek
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Rule Of Law ◽  
Presidential Election ◽  
Specific Situation ◽  
The Rule Of Law ◽  
States Of Emergency ◽  
Venice Commission ◽  
Electoral Law

The author presents a constitutional regulation of the Polish model of presidential election and states of emergency and relates them to the specific situation of the COVID-19 pandemic in 2020. Then, he analyses in detail the content of the recommendations of the European Commission for Democracy through Law (Venice Commission) of 26 May 2020 (Respect for Democracy, Human Rights and the Rule of Law during States of Emergency – Reflections), regarding the elections in states of emergency and its significance for the presidential election in Poland in 2020. The opinion positively evaluates all the Commission’s recommendations and considers that the existing and new exceptional Polish electoral law regulations respecting the principles of democracy and rule of law are fully complaint with them.

70 Years of Human Rights and the Rule of Law in Europe

2021 ◽  
Keyword(s):  
Human Rights ◽  
European Commission ◽  
Rule Of Law ◽  
Good Reason ◽  
Common Interest ◽  
70Th Anniversary ◽  
Present Condition ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Venice Commission

The years of 2019 and 2020 offered the opportunity to commemorate four anniversaries: On 4 November 2020, it was 70 years ago that the ECHR, was signed. Ten years later, the ECtHR began its work. The Council of Europe had its 70th anniversary on 5 May 2019. Finally, the European Commission for Democracy through Law (Venice Commission) established in 1990, could celebrate its 30th birthday. These jubilees offer a good reason to take a look at how these institutions have contributed to making human rights and the rule of law a matter of common interest in Europe, and what their present condition is. This volume contains the contributions on this topic held at the Walter-Hallstein Symposium on 5 and 6 March 2020. With contributions by Veronika Bílková, Thomas Giegerich, Rainer Hofmann, Stefan Kadelbach, Wilfried Loth, Angelika Nußberger, Paulo Pinto de Albuquerque and Stefanie Schmahl.

scholarly journals Legal doctrine, legal science and protection of human rights (efficiency ratio)

2020 ◽  
Vol 11 (11) ◽  
pp. 11-15
Author(s):  
Onischenko N.
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Rule Of Law ◽  
Legal Doctrine ◽  
The Rule Of Law ◽  
Current State ◽  
Legal Science ◽  
Democratic State ◽  
Protection Of Human Rights ◽  
Spatio Temporal

The current state of Ukrainian society requires the scientific community to find answers to the general social impulses needed for reform strategies: from unconstructive attempts to replace the state with civil society to efforts aimed at their balanced interaction. It is the principle of social and political balance in the relationship between the rule of law and civil society should be the basis for correcting and correcting the unstable economic situation, overcoming acute social conflicts, establishing the rule of law, building a democratic state. It should be noted that it is quite clear that sometimes the implementation of a right requires at least not one, but clearly several opportunities, such as: economic, educational, social, gender, etc., existing in the relevant spatio-temporal continuum. Moreover, there is an indisputable thesis that there are no secondary or non-first-class or type of human rights, so every unrealized, not realized in time or not fully realized right, without a doubt, is based on the lack of, first of all, the corresponding real opportunities. It is also clear that the implementation of a certain right depends, for example, on the relevant regulations. we note that state-building processes, their dynamics, progressive trends depend on many factors. In this context, the interconnectedness of the development of a democratic, legal, social, European state and the formation of a mature, active, civil society was considered. Keywords: legal science, legal doctrine, human rights, rights and opportunities, legal development.

Part III Structural Principles, Ch.20 Democracy and the Rule of Law

2013 ◽  
Author(s):  
Tomuschat Christian
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
The Rule Of Law ◽  
Legal Nature ◽  
Protection Of Human Rights ◽  
Structural Principles ◽  
International Instruments

This article examines the role of the rule of law and democracy in international human rights law. It discusses the legal nature and the formal recognition of the rule of law and democracy. It explains that that rule of law and democracy are elements that constitute essential pillars promoting real enjoyment of human rights but they are dependent on the general conditions prevailing within society. This article highlights the importance of the supervisory roles of international bodies in ensuring the effectiveness of the guarantees set forth in international instruments for the protection of human rights.

scholarly journals Evaluating ‘Life Steeped in Power’: Non-Domination, the Rule of Law and Spatial Restrictions for Irregular Migrants

2020 ◽  
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Practical Relevance ◽  
Human Rights Law ◽  
The Rule Of Law ◽  
Irregular Migrants ◽  
Normative Framework ◽  
Protection Of Human Rights ◽  
State Coercion ◽  
The Right

Abstract Irregular migrants in Europe are increasingly subjected to state coercion, surveillance and spatial restrictions, such as containment, dispersal and forced transfers. Lawyers usually evaluate such practices in the light of human rights law, which only provides limited protection. For this reason, I propose an alternative normative framework to evaluate and assess coercive state practices towards irregular migrants: the concept of freedom as non-domination. In this article, I conceptualize non-domination from a rule of law perspective. To this end, I start from Lovett’s procedural account of arbitrariness; and complement this with Benton’s focus on unaccountable power and Palombella’s argument for ‘duality of law’. In the second part of this article, I apply this normative framework to coercive practices in shelters for irregular migrants in the Netherlands. This allows me to demonstrate the practical relevance and consequences of the theory. It discloses how the protection of freedom as non-domination, conceptualized from a rule of law perspective, sets more demanding criteria for the (courts of) law than the protection of human rights. At the same time, it does not require non-interference or elaborate positive obligations from the state. For irregular migrants, who do not have the right to reside in the territory, but who are entirely under the control of state power, non-domination as conceptualized in this paper provides, in my view, a necessary framework of review that ensures a kind of protection that is currently lacking.

scholarly journals The Citizens’ Constitutional Rights Regarding Habitable and Wholesome Environment: Towards a Law State that Protects the Environment

2020 ◽  
Vol 4 (1) ◽  
pp. 81
Author(s):  
Nyoman Satyayudha Dananjaya ◽  
Fuchikawa Kazuhiko
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Due Process ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Human Beings ◽  
Legal Research ◽  
International Human Rights ◽  
The Rule Of Law ◽  
Protection Of Human Rights

This paper aims to examine the protection of the environment in Indonesia which is part of the realization of a law state that guarantees the constitutional rights of its citizens. It is a legal research that reviews Indonesian constitutional and statutory provisions, besides adding a comparative perspective from a Japanese Constitution and legal system. It is found that the concept of a law state in Indonesia does not specifically follow the concept of a law state like what is meant in “rechtsstaat” or “the rule of law”. It has peculiar characteristics which indeed seem to adopt the noble values ??of those two concepts which clearly confesses in the constitution along with the elements and characters stated in it. One of the most prominent characteristics of a law state is the recognition and protection of human rights. In the Indonesian Constitution 1945, human rights as the fundamental rights of human beings have been arranged and compiled which is legally legitimized become constitutional rights. Among human rights, rights related to the environment include essential rights in array of international human rights formulations. Article 28 letter H of the Indonesian Constitution 1945 expressly states the rights to habitable and wholesome environment for citizen. The protection form can be a normative arrangement in the constitution or in a formal juridical through legislation. Protection of citizens' constitutional rights related to the environment is faced with due process of environmental protection that requires consistency in order to achieve the intention and direction of the Indonesian law state itself.

scholarly journals The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal

2021 ◽  
pp. 1-15
Author(s):  
Başak Çalı ◽  
Esra Demir-Gürsel
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Political Context ◽  
Secretary General ◽  
Special Issue ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
European Court ◽  
Institutional Features ◽  
Venice Commission

Abstract This article introduces the Special Issue on ‘The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections’. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE’s ability to produce timely, consistent, and co-ordinated responses against systemic threats.

scholarly journals The value of the United Nations in resolving problems of the rule of law in conflict States

2016 ◽  
Vol 3 (1) ◽  
pp. 155-162
Author(s):  
N I Kostenko
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Rule Of Law ◽  
Years Of Experience ◽  
Effective Protection ◽  
The Rule Of Law ◽  
Peacekeeping Operations ◽  
Sustainable Peace ◽  
Protection Of Human Rights ◽  
The United Nations

In this paper, the author tries to analyze the main extracted from the work of the United Nations according to the rule of law in the States for the last fifteen years. The analysis shows that the rule of law and the approval of the rule of law in the States for the last fifteen years of experience - is fundamental to sustainable peace after conflict, for the effective protection of human rights. Keywords: problems of justice, the rule of law, the rule of law, peacekeeping operations, the UN standards.

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