El Estatuto de los electos locales

2017 ◽  
pp. 367-470
Author(s):  
Carmen ALONSO HIGUERA
Keyword(s):  
Legal Status ◽  
Case Law ◽  
The State ◽  
Constitutional Courts ◽  
Special Configuration ◽  
Bundle Of Rights

LABURPENA: Lan honen helburua gaur egun toki-hautetsiaren estatutu juridikoa integratzen duten eskubide, prerrogatiba, betebehar eta erantzukizunen multzoa aztertzea da, aldez aurretik lege-esparruaren osaera berezia zehaztuz eta, ondoren, estatutu horren eduki zehatza aztertuz estatu mailako oinarrizko legedian eta Auzitegi Gorenaren eta Auzitegi Konstituzionalaren jurisprudentziaren balizko interpretazioan, eta EAEko legedi autonomikotik eratorritako espezialitateak aintzat hartuz: azkenik, tokiko erregelamendu organikoek betebehar horretan izan dezaketen funtzio garrantzitsua jorratu da. RESUMEN: El objeto de este trabajo radica en analizar el conjunto de derechos, prerrogativas, deberes y responsabilidades que integran el estatuto jurídico del electo local en la actualidad, determinando previamente la especial configuración de su marco legal, para después analizar sucesivamente el contenido exhaustivo de este estatuto en la legislación básica estatal y su eventual interpretación por la Jurisprudencia del Tribunal Supremo y del Tribunal Constitucional, las especialidades derivadas de la legislación autonómica vasca y, finalmente, el importante papel que pueden tener en esta labor los Reglamentos Orgánicos locales. ABSTRACT: The scope of this work lies in analyzing the bundle of rights, prerogatives, duties and responsibilities that at present are part of the legal status of the local elected members, by previously determining the special configuration of their legal frame and then successively analyzing the exhausting content of this status in the State basic legislation and its possible interpretation by the Supreme and Constitutional courts case law, the specialities resulted from the Basque autonomous legislation and finally the important role that Local organic rules may have in that task.

Effective Participation of National Minorities in Public Affairs in Light of National Case Law

2009 ◽  
Vol 16 (4) ◽  
pp. 621-642 ◽  
Author(s):  
Joseph Marko
Keyword(s):  
Ethnic Diversity ◽  
Legal Status ◽  
Minority Groups ◽  
Case Law ◽  
Public Affairs ◽  
Constitutional Courts ◽  
National Courts ◽  
National Minorities ◽  
Nation States ◽  
Protection Mechanisms

Based on different concepts of nation-states, the article tries to demonstrate through the analysis of decisions of national courts that despite the same wording of the constitutional text, supreme and constitutional courts may come to totally differing conclusions in light of the constitutional history and doctrine of the respective country. The first part of the article gives an overview on case-law denying effective participation through non-recognition of ethnic diversity as a legal category, for instance through the ban of the formation of political parties along ethnic lines or through interpretative preemption of the legal status of minority groups. The second part of the article gives an overview of various legal mechanisms in order to enable, support, or even guarantee the representation and process-oriented effective participation of minorities in elected bodies, such as exemptions from threshold requirements in elections or reserved seats in parliament, and through cultural and territorial self-government regimes in those constitutional systems which legally recognize ethnic diversity. Nevertheless, the case-law demonstrates how difficult it remains to reconcile the notion of "effectiveness" with a positivistic and formal-reductionist understanding of terms such as equality, sovereignty, people or nation. The Lund Recommendations have served as an important guideline for a new, "communitarian" understanding of "effective" participation so that the author argues in conclusion that it requires more intra- and inter-disciplinary dialogue between law, politics and (legal) philosophy as well as between national and international minority protection mechanisms to "constitutionalize" this philosophy.

scholarly journals Własność i zarząd urządzeniami wodnymi w orzecznictwie sądów administracyjnych

2014 ◽  
pp. 85-117
Author(s):  
Jerzy Rotko
Keyword(s):  
Legal Status ◽  
Soil Surface ◽  
Case Law ◽  
The State ◽  
Water Law ◽  
Long Time ◽  
The Subject ◽  
Administrative Courts

The analysis undertaken in this article covers two issues: the legal status of water facilities and the methods of management of those devices that are owned by the State Treasury. The first one has not been the subject of interest of legal sciences for a long time. The doubts related to it were present in legal debate only through the case law of the administrative courts. The ground-breaking importance is held mainly by the judgment of the Supreme Administrative Court of 16 January 2009. It is the first judgment that settled on the legal status of the water facilities. The Administrative Court in Warsaw opined that the weir on the river was a part of the soil surface covered with fl owing water (river), however the Supreme Administrative Court questioned this view by affirming that such devices were subject to separate ownership and thus formed an exception to the principle of superficies solo cedit. Equally controversial is the governance of the water facilities owned by the State Treasury. The provisions of the Act on Water Law are inconsistent and incoherent. The problems arising in this context remain largely unnoticed in the case law of the administrative courts. The article is summed up by complex de lege ferenda conclusions, designed to remove incoherent and inconsistent provisions of the Water Law.

scholarly journals Los derechos sociales de los ciudadanos de países terceros entre regionalismo y Derecho de la Unión Europea. El caso italiano

2017 ◽  
pp. 195-223
Author(s):  
Gracy PELACANI
Keyword(s):  
Legal System ◽  
Legal Status ◽  
Case Law ◽  
The State ◽  
The Body ◽  
Social Rights ◽  
Over Time ◽  
The Way ◽  
Third Country Nationals

LABURPENA: Joan gaitezen Italiako ordenamendura eta begiratu bat eman hirugarren herrialdeetako herritarrek eskubide sozialetara iristeko dauzkaten mugei, ea zerk izan duen zeresana muga horien bilakaeran eta norainokoan. Lehenik eta behin, saiatuko gara ikusten 2001 eta 2012 bitarteko konstituzio-erreformek zer-nolako ondorioak izan zituzten estatuaren eta eskualdeen arteko eskumen-banaketan eta nolako eragina izan zuten immigrazioaren diziplinan eta eskubide sozialetarako sarbidea antolatzen duen araudian. Bigarrenik, begiratuko dugu Corte Constituzionaleren jurisprudentzian zer jartzen duen gai honi buruz. Eta, han dionez, eskubide sozialetara iristeko bidean, ez da ezinezkoa tratua ezberdina izatea norbanakoaren estatutu juridikoaren arabera, baina irizpideek ezin dute izan ez arrazoi gabeak ez arbitrarioak, inor ez baztertzearren eta, hortaz, Konstituzioa ez urratzearren. RESUMEN: El análisis se concentra en los factores que influenciaron la evolución y el alcance de los límites al acceso a los derechos sociales por parte de los ciudadanos de países terceros en el ordenamiento italiano. Se considera, en primer lugar, el impacto de las reformas constitucionales de 2001 y 2012 sobre la atribución de competencias entre Estado y Regiones, y la manera en que estas afectaron la disciplina de la inmigración y la normativa que regula el acceso a los derechos sociales. En segundo lugar, prestamos atención a la jurisprudencia relevante de la Corte costituzionale en la que se establece que, en el acceso a los derechos sociales, aunque se permita el trato diferente con base en el estatuto jurídico de los individuos, los elementos que lo justifican no podrán ser ni irrazonables ni arbitrarios, al fin de no originar tratos discriminatorios y, por ende, inconstitucionales. ABSTRACT: The contribution focuses on the elements that have influenced the way in which access to social rights by third-country nationals has been limited over time in the Italian legal system. It considers, in the first place, how the 2001 and 2012 amendments of the Constitution impacted on the division of competences between the State and the Regions, and the way in which they have affected the body of norms regulating immigration and access to social rights. Secondly, attention is paid to the relevant constitutional case-law where it is affirmed that even if in regulating access to social rights a different treatment based on the legal status of individuals is allowed, it cannot be justified by arbitrary or no reasonable reasons, because otherwise they would amount to a discriminatory treatment, thus being unconstitutional.

The Nation State Law and the Arabic Language in Israel: Downgrading, Replicating or Upgrading?

2021 ◽  
Vol 54 (2) ◽  
pp. 263-285
Author(s):  
Mohammed S Wattad
Keyword(s):  
Legal Status ◽  
Case Law ◽  
Arabic Language ◽  
The State ◽  
Nation State ◽  
Official Language ◽  
State Law ◽  
State Institutions ◽  
Basic Law ◽  
The Status

Article 4 of the Nation State Law (NSL), entitled ‘Languages’, stipulates that Hebrew is the language of the state (Article 4(a)); the Arabic language has a special status in the state and regulating the use of Arabic in or by state institutions will be set in law (Article 4(b)); and this clause does not harm the status given to the Arabic language before the law came into effect (Article 4(c), the ‘validity of laws’ clause). The question is whether, how, and to what extent these provisions hinder the present legal status of the Arabic language in Israel. The legal status of Arabic had never been determined decisively before enactment of the NSL. The High Court of Israel has always been divided on this matter, particularly between judges who perceived Arabic as an official language and judges who deemed it solely as having been granted its acknowledged ‘special legal status’. Furthermore, the judges who perceived Arabic as an official language of the state were also in dispute among themselves as to the meaning, the scope and the consequences of such recognition. Considering these circumstances, my view is that the NSL perpetuates the legal status of Arabic as prescribed in the laws and case law that already existed, and that the validity of laws clause, coupled with the special status granted to Arabic in a basic law, suggests that the door is still open for the Court to further endorse the legal status of Arabic in Israel.

Analysis of geodetic and legal documentation in the process of expropriation for roads. Krakow case study

2013 ◽  
Vol 62 (1) ◽  
pp. 67-84
Author(s):  
Anna Trembecka
Keyword(s):  
Local Government ◽  
Legal Status ◽  
The State ◽  
Property Value ◽  
Real Property ◽  
Construction Design ◽  
Special Rules ◽  
The City

Abstract Amendment to the Act on special rules of preparation and implementation of investment in public roads resulted in an accelerated mode of acquisition of land for the development of roads. The decision to authorize the execution of road investment issued on its basis has several effects, i.e. determines the location of a road, approves surveying division, approves construction design and also results in acquisition of a real property by virtue of law by the State Treasury or local government unit, among others. The conducted study revealed that over 3 years, in this mode, the city of Krakow has acquired 31 hectares of land intended for the implementation of road investments. Compensation is determined in separate proceedings based on an appraisal study estimating property value, often at a distant time after the loss of land by the owner. One reason for the lengthy compensation proceedings is challenging the proposed amount of compensation, unregulated legal status of the property as well as imprecise legislation. It is important to properly develop geodetic and legal documentation which accompanies the application for issuance of the decision and is also used in compensation proceedings.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

The Legal Status of Local Government in South Africa under the New Constitutional Dispensation

2018 ◽  
Vol 33 (2) ◽  
Author(s):  
Mbuzeni Mathenjwa
Keyword(s):  
South Africa ◽  
Local Government ◽  
Legal Status ◽  
Case Law ◽  
The Status ◽  
History Of ◽  
The Republic ◽  
First Time

The history of local government in South Africa dates back to a time during the formation of the Union of South Africa in 1910. With regard to the status of local government, the Union of South Africa Act placed local government under the jurisdiction of the provinces. The status of local government was not changed by the formation of the Republic of South Africa in 1961 because local government was placed under the further jurisdiction of the provinces. Local government was enshrined in the Constitution of the Republic of South Africa arguably for the first time in 1993. Under the interim Constitution local government was rendered autonomous and empowered to regulate its affairs. Local government was further enshrined in the final Constitution of 1996, which commenced on 4 February 1997. The Constitution refers to local government together with the national and provincial governments as spheres of government which are distinctive, interdependent and interrelated. This article discusses the autonomy of local government under the 1996 Constitution. This it does by analysing case law on the evolution of the status of local government. The discussion on the powers and functions of local government explains the scheme by which government powers are allocated, where the 1996 Constitution distributes powers to the different spheres of government. Finally, a conclusion is drawn on the legal status of local government within the new constitutional dispensation.

The Domestication of the Convention on the Rights of Persons with Disabilities

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
Direct Effect ◽  
Legal Status ◽  
Case Law ◽  
Legal Systems ◽  
Persons With Disabilities ◽  
International Treaty ◽  
Four Dimensions ◽  
Relevant Case ◽  
Similarities And Differences ◽  
Domestic Law

This chapter reflects on jurisdiction-specific approaches to the domestication of the Convention on the Rights of Persons with Disabilities (CRPD), considering in particular the domestic legal status of the CRPD and the relevance of that legal status for case law. The chapter explores four dimensions of the CRPD’s legal status: direct effect; indirect interpretative effect (where the CRPD influences the interpretation given to domestic law); use of the CRPD because of commitments to another international treaty; and absence of domestic legal status. With the exception of the first category, all dimensions can potentially present themselves in legal systems which tend towards the monist approach as well as in those which tend towards the dualist approach. The chapter discusses examples of relevant case law and reflects on similarities and differences emerging from a comparison of that case law.

Property

2020 ◽  
pp. 276-292
Author(s):  
J. E. Penner
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Property Law ◽  
Private Law ◽  
Making Sense ◽  
The Social ◽  
Bundle Of Rights ◽  
High Level

This chapter discusses property law. It considers the idea that property had a “nominalist” ontology, and it was in danger of “disintegration” as a working legal category for that very reason. Nominalism about property has had a significant impact in U.S. case law. The concern here, however, is whether it is a helpful stance to take as a theorist of property. The chapter argues that it is not. There are indeed “high” level abstractions about property which one cannot plausibly do without if one is to understand property rights and property law doctrine. Moreover, the “bundle of rights” (BOR) challenge does not assist one in making sense of these abstractions. The chapter then looks at the conceptual failure of BOR and the New Private Law as it relates to property. BOR is generally regarded as being underpinned by what might be called the Hohfeld-Honoré synthesis. The synthesis rests upon a fairly serious mistake, which is that while the Hohfeldian examination of jural norms is analytic if it is anything, Honor’s elaboration of the incidents making up ownership is anything but—it is functional. This means that Honoré describes the situation of the owner not principally in terms of his Hohfeldian powers, duties, and rights vis-à-vis others, but in terms of the social or economic advantages that an owner has by virtue of his position, and the terms and limitations of those advantages.

The Costs of Regularization in Southeast Asia

Contexts ◽  
2021 ◽  
Vol 20 (1) ◽  
pp. 21-25
Author(s):  
Maryann Bylander
Keyword(s):  
Southeast Asia ◽  
Legal Status ◽  
Well Being ◽  
Global South ◽  
Southeast Asian ◽  
The State ◽  
Asian Context

In the Southeast Asian context, legal status is ambiguous; it enlarges some risks while lessening others. As is true in many contexts across the Global South, while documentation clearly serves the interest of the state by offering them greater control over migrant bodies, it is less clear that it serves the goals, needs, and well-being of migrants.

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