Access to constitutional complaint procedures: A real chance?

In a recent decision, the European Court of Human Rights concluded that the constitutional complaint before the Hungarian Constitutional Court can be seen as an effective domestic remedy. This decision shows the growing role of constitutional complaint procedures even in the international system of human rights protection; therefore, it is worth examining how national laws ensure efficient access to such procedures. The current paper aims to analyse a specific aspect of this complex problem, namely, the question of legal aid in constitutional court proceedings – particularly constitutional complaints procedures – in Germany, Austria and Hungary. As a general staring point, it is intended to derive the need for legal aid from the national constitutions, followed by an analysis on the availability of legal aid schemes for constitutional complaint procedures and their conditions. The examination is based on the national legal provisions and case-law, as well as the relevant secondary literature. This comparative study can enable some conclusions to be drawn on the question of how constitutional complaints can become more efficient tools in the protection of fundamental rights for those in need, as well.

Die Rechte indigener Völker im Menschenrechtssystem

This textbook offers insights into the recently established special rights regime on indigenous peoples’ rights at international level. The reader is guided from the early beginnings of this issue in the 1970s to current jurisprudential developments. International and regional norms are introduced and contrasted with societal and political challenges. The book also opens broader debates on the politics of recognition and decolonisation, multilateral systems and global governance, the pluralisation of society and its institutions, collective rights and the meaning of civil, political, economic, social and cultural rights. This group-specific field of the international human rights protection system is viewed through the lenses of international law and socio-political approaches.

Human Rights Protection in Occupied Territories

The chapter discusses the protection mechanisms of human rights in occupied territories, namely it concerns the issue of application of international human rights law and international humanitarian law in occupied territories. The author gives detailed information about the main system for administration of occupied territories, in particular about the conventional and customary law, as well as secondary resources such as court decisions and UN resolutions. The chapter analyses international treaties, customary law, and case law to identify the main problems related to human rights protection in occupied territories, the positive obligations of states to protect population living in occupied territories, and the relevance of existing legal norms with the state practice.

Współpraca Unii Europejskiej z wybranymi państwami niedemokratycznymi Afryki Subsaharyjskiej w obszarze poszanowania praw człowieka

In Art. 3, para. 5, the Treaty on European Union (TEU) lays down the objectives of the Union in relations with the wider world, which are further explained in detail in Art. 21. In the first place, para. 5 refers to the promotion of the Union’s values. The list of values can be found in Art. 2 TEU (“The Union is founded on…”), which lists the principle of democracy, the rule of law and respect for human rights, human dignity, freedom and equality. They are to be upheld and promoted by the Union in the wider world. Thus, they are directly linked to external policy. Next, the list of values in Art. 2 is repeated in Art. 3, para. 5 as objectives of the Union’s external policy and in Art. 21, para. 1 as principles. For this reason, international agreements concluded between the EU and third countries all contain a “human rights clause” as an essential element of the agreement, the violation of which might result in the suspension of the agreement. This article focuses on the human rights clause in relations between the EU and selected non-democratic Sub-Saharan African countries. The main legal basis governing bilateral relations between the EU and those countries is the Cotonou Agreement. The “human rights clause” is to be found in Art. 9 thereof. This clause is especially interesting since it is the only one that has been implemented in practice. Moreover, it is often presented as the most elaborate one, and as a consequence is very often shown as a “model” that should be followed in other international agreements, especially in association agreements. So, the “human rights clause” contained in the Cotonou Agreement has its own characteristic features. Firstly, as it was mentioned above, it is the only one that has been activated in practice. Secondly, the “non-execution clause” is much more detailed, and finally, much more emphasis is laid on political dialogue and on the consultation procedure. This paper provides a propaedeutic analysis of legal cooperation between the EU and selected non-democratic Sub-Saharan countries in the area of human rights protection. Its main objective is to answer the following questions: to what extent the EU cooperates with such countries? What are the issues the clause covers? Is it effective? To what extent could it be enhanced? For analysis, the following countries have been chosen: Chad, Ethiopia, Rwanda, Uganda, and Zimbabwe. According to the Freedom House’s annual Freedom in the World report, the Global Freedom Scores for all these countries do not exceed 35 points, which equates to lack of democracy. Moreover, another feature which all of them have in common is a very low score on the Human Development Index (HDI), which means that all of them belong to the poorest and least developed countries in the world.

Terrorism Eradication in ASEAN Countries: Human Rights Perspective

This research aims to discuss ASEAN counter-terrorism policy and its impact on human rights protection. The terrorism act of Abu Sayyaf in the Philippines, the spread of terrorism in Indonesia by JAT and JAD, and the rebellion movement in Pattani-Thailand are the most heard of terrorism cases in Southeast Asian countries. The research focused on the regulatory through comparative approaches. The result found that ASEAN has an agreement known as ASEAN Convention on Counter-Terrorism (ACCT) for combating terrorism. ACCT implementation in national legal regulations of ASEAN members in the midst of the spread of terrorism plays a crucial role in combating terrorism and its impact on human rights protection. However, the effort of eradicating terrorism in Southeast Asian countries is not in line with the principles of peace and regional integrity. The practice of authoritarianism and militarism has instead become most prominent as a result of perpetuating militarism-based legal regulations in resolving terrorism. Efforts for combating terrorism in Southeast Asia, therefore, leave a serious problem regarding the protection of human rights, the issue of impunity, attacks on civil society, and the involvement of the military which threatens territorial integrity. Those are at cross purposes with ACCT policies as well as national sovereignty, integrity, and security of ASEAN members. (Penelitian ini bertujuan membahas kebijakan anti-terorisme ASEAN dan dampaknya terhadap perlindungan hak asasi manusia. Aksi terorisme Abu Sayyaf di Filipina, penyebaran terorisme di Indonesia oleh JAT dan JAD, serta pemberontakan di Pattani-Thailand adalah kasus-kasus terorisme terpopuler yang terjadi di Asia Tenggara. Penelitian ini fokus pada peraturan perundang-undangan dengan pendekatan komparatif. Hasilnya menunjukkan bahwa ASEAN memiliki kesepakatan yang disebut Konvensi ASEAN tentang Kontra-Terorisme (ACCT) untuk memerangi terorisme. Penerapan ACCT dalam peraturan hukum nasional negara anggota ASEAN di tengah maraknya aksi terorisme sangat penting dalam upaya pemberantasan terorisme dan dampaknya terhadap perlindungan hak asasi manusia di ASEAN. Akan tetapi dalam praktiknya, pemberantasan terorisme di ASEAN masih belum sejalan dengan prinsip perdamaian dan keutuhan kawasan. Praktik otoritarianisme dan militerisme justru menjadi praktik paling menonjol yang dilakukan oleh negara-negara di ASEAN seiring dengan langgengnya regulasi hukum berbasis praktik militerisme dalam menyelesaikan kejahatan terorisme. Pemberantasan terorisme di Asia Tenggara menyisakan masalah serius terkait perlindungan hak asasi manusia, isu impunitas, serangan terhadap masyarakat sipil, dan keterlibatan militer yang mengancam integritas teritorial. Isu-isu tersebut bertentangan dengan Kebijakan ACCT serta kedaulatan, integritas nasional, dan keamanan anggota ASEAN.)

Konfiskata mienia obowiązująca na gruncie kodeksu karnego PRL jako instrument totalitarnego systemu komunistycznej dyktatury

Confiscation of property, understood as depriving the perpetrator of a crime (as well as third parties not involved in criminal practice) of all or part of their property, regardless of whether it was derived from criminal activity or was collected legally, is one of the most painful means of criminal law response in history. From the perspective of today’s standards of human rights protection, it appears unacceptable and contrary to the guarantee function of criminal law. As the analysis of past regulations shows, this measure was used with pleasure in totalitarian states (for example in Nazi Germany and the Soviet Union) as an instrument of fighting political opponents, which was to occur through economic repression, often leading to material annihilation. Confiscation of property was also in force under the Criminal Code of the Polish People’s Republic. The official ratio legis of this institution was seen in the fight against crime against social property. However, an analysis of the practical application of this institution leads to the conclusion that it was not the only goal of the then legislator. The aim of this article is therefore to analyze the institution of confiscation of property in force under the 1969 Criminal Code, and in the longer term to find an answer to the question of whether this regulation was an instrument of the totalitarian system of the communist dictatorship.

Recognizing and Implementing International Human Rights Standards in Domestic Legislation: An Exposure Under Ukrainian Law

Everything about human right is inalienable void of violation from the human race. It is therefore that responsibility of the international community in ensuring the effective preservation and respect of these rights without any threat of violations. In ensuring its recognition and implementation, international standards have been established where there is the need of States parties to these international human right treaties in ensuring its incorporation in its various domestic legislations. The content and specific features of the introduction of international human rights standards into national legislation have been analyzed in the article. The methodological basis of research is a set of general scientific and special methods, in particular, dialectical, historical-legal, epistemological, comparative-legal. International standards for the protection of human rights have been defined as principles and norms enshrined in international regulatory legal acts that define fundamental human rights and freedoms, the obligation of the State to respect them, to assist in their realization, preservation and protection against unlawful encroachments, and to establish liability for their violations and methods of protection. It has been clarified that the procedure of implementation of international human rights standards into national legislation includes the following stages: (i) recognition of human rights by the State and their enshrinement in national legislation; (ii) institutionalization of the standard of human rights protection; (iii) bringing the current legislation in line with the international human rights standard and interpreting the latter; (iv) establishment of measures and means of protection and defense of human rights; (v) determining the procedure for the realization of the enshrined right; (vi) control over the observance of the international human rights standard.

NSW parliament’s oversight of human rights in the first year of the COVID-19 pandemic

New South Wales (NSW) relies on a robust application of the Westminster system of government for its human rights protection. In 2020, the system was subjected to a major stress test via the COVID-19 pandemic, with new public conditions imposed on previously unregulated individual freedoms. The author examines the extent to which human rights featured in NSW parliament’s oversight of the 2020 pandemic response and finds it inadequate. The author concludes that the case study demonstrates a need for the state’s human rights protection model to be reconsidered.

One Boat, Two Captains: Implications of the 2020 Samoan Land and Titles Court Reforms for Customary Law and Human Rights

Samoa's 2020 Land and Titles Court reforms, which contributed to the Human Rights Protection Party losing support at the April 2021 elections after almost 40 years of government, have recentred attention on the tensions of legal pluralism in the South Pacific. Although Samoa maintains a system of English common law, 81 per cent of Samoan land falls under the traditional matai titles system, giving a central role to the customary Land and Titles Court (LTC). In December 2020, the Samoan parliament passed three Acts – the Constitution Amendment Act 2020, the Land and Titles Act 2020 and the Judicature Act 2020 – establishing the LTC in a parallel court hierarchy with equivalent status to the Samoan Supreme Court and Court of Appeal. This proposal has prompted debate between those favouring incorporation and promotion of Samoan custom over Western legal norms, and others who argue the amendments undermine human rights protections and the rule of law. This article evaluates the effects of these changes on the role and administration of custom in Samoa, contextualising them within broader socio-legal debates around customary legal systems. It first analyses the effect of the three Acts with regard to the bifurcation of the court system, procedural reforms in the LTC hierarchy and the introduction of a judicial guidance clause. This leads into a critical evaluation of these changes, highlighting impacts upon judicial coherence; constitutional human rights; consistency between customary and common law procedures; and resourcing constraints. The article concludes by providing broad options for future reform. It does not focus on issues which have received attention elsewhere, such as the amendments' potential impacts on judicial independence.