scholarly journals The german separation between police and the offices for the protection of the Constitution. Legal framework

2016 ◽  
pp. 36-43
Author(s):  
CODRIN TIMU ◽  
MARTIN IBLER
Keyword(s):  
Rule Of Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Terrorist Attacks ◽  
Federal State ◽  
Constitutional Court ◽  
Separation Principle ◽  
The Rule Of Law ◽  
The Usa ◽  
Federal Constitutional

“The rule of law and the federal state, as well as the protection of the fundamental rights could forbid the fusion of certain offices or the delegation of these offices with functions that are incompatible with their constitutional position“1. In this manner the Federal Constitutional Court of Germany mentions the separation between police and the offices for the protection of the constitution. After the terrorist attacks in the USA, Spain, France, Belgium and Germany, the teamwork between the state offices has kept on intensifying. The discussion (debate) about the legal framework of the separation principle continued however to exist. In a time, where the security of the citizens steals away the space of the fundamental rights, to treat this subject is of the utmost importance2, in order not to allow the recurrence of the mistakes of the Weimar Republic. The article deals with the legal framework of the German separation between police and the offices for the protection of the constitution and gives an answer to the question if this principle has a constitutional status.

Verfassungsanalogien – Das Bundesverfassungsgericht an der Grenze der Verfassungsinterpretation

Der Staat ◽  
2021 ◽  
Vol 60 (1) ◽  
pp. 7-41
Author(s):  
Carsten Bäcker
Keyword(s):  
Constitutional Law ◽  
Case Law ◽  
Point Of View ◽  
Fundamental Rights ◽  
Federal State ◽  
Constitutional Court ◽  
Sich Eine ◽  
Statutory Interpretation ◽  
Rights Protection ◽  
Federal Constitutional

Analogien sind methodologisch hoch umstritten; sie bewegen sich an der Grenze der Gesetzesinterpretation. Dem methodologischen Streit um die Analogien unterliegt die Frage nach den Grenzen der Gesetzesinterpretation. In der Rechtsprechung des Bundesverfassungsgerichts finden sich eine Reihe von Verfassungsanalogien. Diese Analogien zum Verfassungsgesetz werden zwar nur selten ausdrücklich als solche bezeichnet, sie finden sich aber in einer Vielzahl von dogmatischen Konstruktionen in der Rechtsprechung – wie etwa der Erweiterung des Grundrechtsschutzes für Deutsche auf EU-Bürger oder der Annahme von Gesetzgebungskompetenzen des Bundes als Annex zu dessen geschriebenen Kompetenzen. Die Existenz derartiger Analogien zum Verfassungsgesetz verlangt nach Antworten auf die Fragen nach den Grenzen der Kompetenz zur Verfassungsinterpretation. Der Beitrag spürt diesen Grenzen nach – und schließt mit der Aufforderung an das Bundesverfassungsgericht, die Annahme von Verfassungsanalogien zu explizieren und die sich darin spiegelnden Annahmen über die Grenzen der Kompetenz zur Verfassungsinterpretation zu reflektieren. Constitutional analogies. The Federal Constitutional Court at the limit of constitutional interpretation From a methodological point of view, the use of analogies in legal argument is highly controversial, for they reach to the limits of statutory interpretation. Underlying the methodological dispute over analogies is the question of what the limits of statutory interpretation are or ought to be. A number of analogies from constitutional law can be found in the case law of the Federal Constitutional Court. Although these analogies to constitutional law are rarely explicitly designated as such, in the case law they can be found in a variety of dogmatic constructions – for example, in the extension of Germans’ fundamental rights protection to EU citizens, or the assumption of legislative powers of the federal state as an appendix to its written powers. The existence of such analogies to constitutional law calls for answers to the question of the limits of the power to interpret the Constitution. It is the aim of this article to trace these limits, and in its conclusion it calls on the Federal Constitutional Court to explicate the adoption of analogies in constitutional law and to reflect on the assumptions found therein – respecting the limits of the power to interpret the Constitution.

Constitutional Court and Constitutional Review in Albania

ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Brunilda Bara ◽  
Jonad Bara
Keyword(s):  
Rule Of Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Review ◽  
The Rule Of Law ◽  
Historical Changes ◽  
Division Of Powers ◽  
Fundamental Rights And Freedoms ◽  
Legal Writers

AbstractThis article tends to give an insight on the historical and institutional develop­ment of the Constitutional Court of Albania, on the need of the society and the historical changes that led to its creation.It focuses especially on the role and competences of this Court on the protection of the rule of law, of the constitutional principles, on the balancing and division of powers, on the protection of the fundamental rights and freedoms of individuals. Its aim is to provide overall information on the functioning and standards it follows.It is based on the jurisprudence of this Court during the years and is enriched by its deci­sions on particular subjects and compares this Court to other similar ones in Eastern Euro­pean countries.The article is mainly directed to scholars and legal writers whose aim is to compare the organization and functioning of the Constitutional Court of Albania to other similar courts.

26 Art. 33 GG: Equal Citizenship, Civil Service

2019 ◽  
Author(s):  
Bumke Christian ◽  
Voßkuhle Andreas
Keyword(s):  
Rule Of Law ◽  
Civil Service ◽  
Fundamental Rights ◽  
Civil Servants ◽  
Equal Access ◽  
Individual Rights ◽  
The Rule Of Law ◽  
Democratic State ◽  
Federal Constitutional ◽  
Equal Citizenship

This chapter deals with equal access to civil service which is guaranteed by Art. 33 of the Grundgesetz (GG). It first examines the Federal Constitutional Court's jurisprudence regarding the importance of the civil service to a democratic state founded on the rule of law before addressing the question of access to civil service, with emphasis on the performance principle and the procedures which safeguard it. It then analyses the Court's so-called ‘Radicals decision’, in which it ruled that the duty of political loyalty was one of the traditional principles of the professional civil service, and the scope of the functional reservation of Art. 33 para. 4 GG. It also explains the prohibition of strikes by civil servants, along with the traditional principles of the professional civil service. Finally, it describes the traditional principles of the civil service as individual rights comparable to fundamental rights.

scholarly journals Break or Bend in Case of Emergency?: Rule of Law and State of Emergency in European Public Health Administration

2019 ◽  
Vol 10 (4) ◽  
pp. 610-634 ◽  
Author(s):  
Filipe Brito BASTOS ◽  
Anniek DE RUIJTER
Keyword(s):  
Public Health ◽  
Rule Of Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Health Administration ◽  
The Rule Of Law ◽  
Public Health Emergencies ◽  
European Public ◽  
The Impact ◽  
The Eu

In this article, we ask what the impact is of the role of the EU administration in responding to emergencies in terms of (changes to) the rule of law. A response to an emergency in some cases creates exceptions to rule of law guarantees that bind the authorities to procedural rules and fundamental rights. These exceptions can become more permanent and even change the constitutional order of the EU. We articulate the legal framework for health emergencies, and discuss how the EU court has interpreted and developed this framework in two key decisions. We then ask whether this framework offers adequate safeguards for upholding the rule of law in cases of major health emergencies. We conclude that public health emergencies can bend and even break rule of law requirements for the EU administration, and advocate for more legal guidance on proportionality, which may offer better safeguards suited for protecting the rights of affected parties.

scholarly journals Peran Mahkamah Konstitusi Dalam Mewujudkan Negara Hukum Yang Demokratis

2017 ◽  
Vol 13 (25) ◽  
pp. 28 ◽  
Author(s):  
H Erli Salia
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Fundamental Rights ◽  
State Agency ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Democratic Government ◽  
The Rule Of Law ◽  
The Guardian

The Constitutional Court is the state agency that was born after the reform in 1999. Through the changes to the Constitution of 1945, the Constitutional Court is authorized to examine  laws (acts) against the Constitution. In addition there are other powers to protect the fundamental rights relating to the constitutional rights of citizens. As a state agency has the authority of the Constitutional Court, among others, as the supreme interpreter of the constitution in addition to realizing the democratic government, the Constitutional Court to act as the guardian of democracy, protection of constitutional rights of citizens and the protection of human rights.Key words: the rule of law, democracy, constitutional court

scholarly journals Das Recht der Nachrichtendienste: Missstände, Entwicklungen und Perspektiven eines Rechtsgebiets in der Findungsphase

2021 ◽  
Vol 104 (2) ◽  
pp. 91-135
Author(s):  
Tristan Barczak
Keyword(s):  
Legal Framework ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Basic Law ◽  
Intelligence Services ◽  
The Press ◽  
Intelligence Operations ◽  
Current Design ◽  
Federal Constitutional ◽  
Statutory Regulation

The law governing the German intelligence services lacks a consistent concept, is non-transparent, fragmented and in urgent need of reform. In May 2020, the First Senate of the Federal Constitutional Court held that the Federal Intelligence Service (Bundesnachrichtendienst - BND) is bound by the fundamental rights of the Basic Law when conducting telecommunications surveillance of foreigners in other countries (so-called Foreign-Foreign Strategic Surveillance), and that the statutory bases in their current design violate the fundamental right to the privacy of telecommunication and freedom of the press. The judgment put an end to the long-running discussion about whether intelligence operations abroad are suitable for statutory regulation at all. Moreover, the Constitutional Court’s decision provided the impetus for one of the most significant reforms in recent German security law. By April 2021, the amendment of the BND Act was finally on the books. It will enter into force in January 2022. It codifies important new rules about the practice, authorization and oversight of foreign data collection by the BND as well as legal requirements for Germany’s participation in international intelligence cooperation. The reform’s provisions implement the constitutional requirements, as stated in the judgement, almost literally. Nonethele⁠ss, the reform created a number of new problems and left major deficits in German intelligence law unresolved. It is far from creating a clear and consistent legal framework for the activities of the three federal intelligence services, in particular their surveillance practices. The article outlines the major shortcomings, developments and perspectives in this field of security law.

scholarly journals The Untenable Situation of German Criminal Law: Against Quantitative Overloading, Qualitative Overcharging, and the Overexpansion of Criminal Justice

2012 ◽  
Vol 13 (6) ◽  
pp. 579-605 ◽  
Author(s):  
Volker Krey ◽  
Oliver Windgätter
Keyword(s):  
Criminal Justice ◽  
Rule Of Law ◽  
Constitutional Court ◽  
District Courts ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
Trial Courts ◽  
Federal Constitutional ◽  
Established Fact

It is a well-established fact that German criminal trial courts are unacceptably and unreasonably overloaded. The German Federal Constitutional Court—Bundesverfassungsgericht, BVerfG—and the Federal Supreme Court of Justice—Bundesgerichtshof, BGH—frankly admit this fact. Even those legal scholars who are critical towards trial courts emphasize such overloading. This overloading is aggravated in the context of austerity measures, which seem to be based on a system that can briefly be described as follows: In principle, the BGH is not, if ever then only slightly, affected, and the State Courts of Appeals—Oberlandesgerichte, OLG—are not affected in an extensive manner. In contrast, the trial courts fare differently: The Higher District Courts — Landgerichte, LG—are typically severely affected by such austerity measures, while the Lower District Courts — Amtsgerichte, AG—are affected brutally. Pursuant to the authors’ view, this practice demonstrates an evident disregard for the trial courts, despite the fact that their speedy as well as convincing settlement of criminal cases is of the utmost importance for the law in action and a constitutive element of criminal proceedings under the rule of law. Hence, the guarantee of an effective criminal justice system — Gewährleistung einer effektiven Strafrechtspflege—is rightly recognized as a fundamental element of the rule of law.

scholarly journals Protection of Prisoner’s Human Rights in Prisons through the Guidelines of Rule of Law

2016 ◽  
Vol 10 (1) ◽  
pp. 71
Author(s):  
Ebad Rouhi ◽  
Leila Raisi Dezaki ◽  
Mahmoud Jalali Karveh
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Rule Of Law ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Educational Management ◽  
The Rule Of Law ◽  
Prison Management ◽  
Fundamental Rights And Freedoms ◽  
The Right

Punishing the criminals is one of the criminal justice mechanisms to compensation and reparation for victims and society. In this regards some of the punishments are determined by criminal justice systems in every society. Imprisonment is one of these penalties which specified in this regard and through this punishment the convicted persons are detained in prison. However, the guilty is sentenced to prison and restriction of his or her liberties, but she or he has fundamental rights and freedoms that must be protected even if in prison and has the right to how to be punished. All of these rights and freedoms are protected by the rule of law. This issue means that how to be punished is restricted under the definite principles which have to be exercised when the retribution and punishment is ongoing. This matter of criminal law and criminal justice is considered as right on how to be punished. The area of this right and authority of prison’s heads and its personnel is determined by law. In order to do that and protection of prisoner’s human rights and regulating manner with them and also for prison management, the rule of law provided a set of guidelines. According to these guidelines prison is managed in the legal framework as well as in this context the prisoner’s rights are protected effectively. These guidelines are provided in some of international legal instruments. This article investigates these guidelines and in respect of their human rights aspects which related to the environmental, educational, management, health care, personnel and humanistic dimensions of imprisonment these guidelines and instructions are studied and analyzed.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

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