scholarly journals Turquía: supresión del régimen parlamentario bajo el estado de emergencia. (Observaciones preliminares sobre la modificación constitucional aprobada por el referéndum de 16 de abril de 2017)

2018 ◽  
pp. 489
Author(s):  
Ibrahim Ö. Kaboğlu
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Political Organization ◽  
European Convention ◽  
Military Coup ◽  
New Order ◽  
Time Dimension ◽  
State Of Emergency ◽  
The Rule Of Law ◽  
Democratic State

This paper discusses the politico-constitutional upheavals that took place in Turkey since 15 July 2016. While a state of emergency has been proclaimed to restore the public order disturbed by the attempted military coup, a constitutional modification, addressed to remove the parliamentary system, has been adopted under exceptional circumstances. The first question we considered in this paper is the constitutional practice of the state of emergency proclaimed, both in the perspective of the binding Constitution and the European Convention on Human Rights. Secondly, we analyzed the constitutional modifications, which appear very radical with respect to the continuity of the constitutional order, with respect to the time dimension of its effects, to the procedure adopted and the requirements of the rule of law. We finally asked ourselves whether such «new order»! is sustainable in a political organization conceived as a democratic State based on the rule of law and the respect of human rights.

scholarly journals On the rule of law and the quality of the law: reflections of the constitutional-turned-international judge

2019 ◽  
pp. 131
Author(s):  
Egidijus Küris
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
European Convention ◽  
Constitutional Court ◽  
Legal Tradition ◽  
The Rule Of Law ◽  
Derechos Humanos ◽  
European Court ◽  
The Law

Western legal tradition gave the birth to the concept of the rule of law. Legal theory and constitutional justice significantly contributed to the crystallisation of its standards and to moving into the direction of the common concept of the rule of law. The European Court of Human Rights uses this concept as an interpretative tool, the extension of which is the quality of the law doctrine, which encompasses concrete requirements for the law under examination in this Court, such as prospectivity of law, its foreseeability, clarity etc. The author of the article, former judge of the Lithuanian Constitutional Court and currently the judge of the European Court of Human Rights, examines how the latter court has gradually intensified (not always consistently) its reliance on the rule of law as a general principle, inherent in all the Articles of the European Convention on Human Rights, to the extent that in some of its judgments it concentrates not anymore on the factual situation of an individual applicant, but, first and foremost, on the examination of the quality of the law. The trend is that, having found the quality of the applicable law to be insufficient, the Court considers that the mere existence of contested legislation amounts to an unjustifiable interference into a respective right and finds a violation of respective provisions of the Convention. This is an indication of the Court’s progressing self-approximation to constitutional courts, which are called to exercise abstract norm-control.La tradición occidental alumbró la noción del Estado de Derecho. La teoría del Derecho y la Justicia Constitucional han contribuido decisivamente a la cristalización de sus estándares, ayudando a conformar un acervo común en torno al mismo. El Tribunal Europeo de Derechos Humanos emplea la noción de Estado de Derecho como una herramienta interpretativa, fundamentalmente centrada en la doctrina de la calidad de la ley, que implica requisitos concretos que exige el Tribunal tales como la claridad, la previsibilidad, y la certeza en la redacción y aplicación de la norma. El autor, en la actualidad Juez del Tribunal Europeo de Derechos Humanos y anterior Magistrado del Tribunal Constitucional de Lituania, examina cómo el primero ha intensificado gradualmente (no siempre de forma igual de consistente) su confianza en el Estado de Derecho como principio general, inherente a todos los preceptos que forman el Convenio Europeo de Derechos Humanos, hasta el punto de que en algunas de sus resoluciones se concentra no tanto en la situación de hecho del demandante individual sino, sobre todo y ante todo, en el examen de esa calidad de la ley. La tendencia del Tribunal es a considerar que, si observa que la ley no goza de calidad suficiente, la mera existencia de la legislación discutida supone una interferencia injustificable dentro del derecho en cuestión y declara la violación del precepto correspondiente del Convenio. Esto implica el acercamiento progresivo del Tribunal Europeo de Derechos Humanos a los Tribunales Constitucionales, quienes tienen encargado el control en abstracto de la norma legal.

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.

10. Article 7: Freedom from retroactive criminal offences and punishment

2018 ◽  
Author(s):  
David Harris ◽  
Michael O’Boyle ◽  
Ed Bates ◽  
Carla Buckley
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Criminal Law ◽  
Essential Element ◽  
European Convention ◽  
The Rule Of Law ◽  
General Principles Of Law ◽  
Principle Of Legality

This chapter discusses Article 7 of the European Convention on Human Rights, which incorporates the principle of legality, by which, in the context of criminal law, a person should only be convicted and punished on a basis of law. Article 7 prohibits the retroactive application of criminal offences and of sentences imposed for them. The guarantee in Article 7 is an essential element of the rule of law, and has as its object and purpose the provision of effective safeguards against arbitrary conviction and punishment. An exception is allowed for offences that were contrary to general principles of law recognized by civilized nations.

scholarly journals The role of prosecutors in state of emergency

2021 ◽  
Author(s):  
Tamara Manea ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Community Services ◽  
State Of Emergency ◽  
Health Crisis ◽  
The Rule Of Law ◽  
Emergency Situations ◽  
Procedural Time ◽  
Functional Autonomy

The COVID-19 pandemic has caused a global health crisis unlike any experienced for more than a century. The need for keeping social distancing and applying lockdown measures have resulted, in many instances, in the disruption of courts’ and prosecution services’ work, delays in proceedings and have impacted on procedural time limits and the suspension or reduction of legal aid, as well as public and community services. The measures have significantly affected international cooperation. The prosecutors have faced the challenge of making sure that, in the course of their work; the measures taken under public health emergency are used so as to protect people and not as a pretext for human rights infringements and those new legal measures are applied with strict respect for human rights obligations. The objective of Opinion nr. 15 is therefore to determine how prosecution services can, without hampering their functional autonomy, fulfill their mission with the highest quality and efficiency, respecting the rule of law and human rights, in the context of emergency situations, particularly the COVID-19 pandemic and their aftermath. This Opinion mostly does address the concerns of prosecutors to work as efficiently as possible, even under the most challenging circumstances, avoiding any unlawful or undue interference in their work and maintaining the highest quality in all their activities and strict respect for the law and human rights.

Particularitățile procedurii de contestare a actelor executorului judecătoresc în legislația din Republica Moldova

2021 ◽  
Vol 2021 (2021) ◽  
pp. 101-111
Author(s):  
Igor COBAN ◽  
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Rule Of Law ◽  
European Convention ◽  
The Rule Of Law ◽  
Republic Of Moldova ◽  
Civil Court ◽  
Procedural Law ◽  
The Republic ◽  
The Right

Enforcement is a fundamental institution of civil procedural law and an essential component of justice in a state governed by the rule of law. Enforcement in the light of the European Convention on Human Rights is an integral part of the „right to a fair trial”. The mere recognition of the right or the obligation of the debtor to restore the violated or contested right is often not enough. The legislator of the Republic of Moldova modernized the enforcement system by reforming it to the private system of enforcement of civil court documents. The object of this study is the particularities of the procedure for contesting the acts of the bailiff according to the legislation of the Republic of Moldova.

Interpreting the Contours of Self-Defence within the Boundaries of the Rule of Law, the Common Law and Human Rights

2015 ◽  
Vol 79 (5) ◽  
pp. 330-343
Author(s):  
Catherine Elliott
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Rule Of Law ◽  
Common Law ◽  
European Convention ◽  
The Rule Of Law ◽  
The Common ◽  
Criminal Legal System ◽  
Objective Concept ◽  
Self Defence

The Crime and Courts Act 2013 has amended s. 76 of the Criminal Justice and Immigration Act 2008 on the amount of force a person can use in self-defence. The amended provision poses a dilemma for the courts: it states that only reasonable force can be used by a householder against a trespasser, but adds that force is unreasonable if it is grossly disproportionate. Until now, the courts have treated reasonable force and proportionate force as synonyms. This article suggests that the amended s. 76 should be interpreted to comply with the rule of law, incorporating the idea of equality before the law and legality. The courts should respect the traditional common law concept of reasonableness which is an impartial, objective concept that plays an important role across the whole of the criminal legal system. In addition, the article points out that the Act must be interpreted, where possible, in accordance with the European Convention on Human Rights to avoid the problems that arose with the defence of lawful chastisement.

The State of Emergency and Exception in Algeria, Morocco and Tunisia: The ‘License to Kill’ the Rule of Law?

2020 ◽  
pp. 002190962096253
Author(s):  
Francesco Tamburini
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
The State ◽  
Democratic Process ◽  
State Of Emergency ◽  
Social Unrest ◽  
The Rule Of Law

This paper shows how the constitutional provisions related to the state of emergency and exception, although they are contained within democratic traditions, were set to operate in Algeria, Morocco and Tunisia as a mechanism of basic control and maintenance of liberal autocracies. The state of emergency model was used for the survival of regimes in times of instability and social unrest, leading in some cases to the suspension of human rights for many years. Nevertheless, these provisions were modified or lifted when the regime had to show a more convincing stake to the democratic process in 2011.

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