Violência contra mulher em âmbitos clínicos e hospitalares: Hipóteses de tutela penal

It is rather trendy to talk about the ‘horizontal effect’ of fundamental rights in a society where the dividing line between public and private power is increasingly blurred. However, as soon as one tries to define the exact meaning of horizontal effect and its conditions, several issues swiftly arise. This article explores the past, the present, and the future of the horizontal direct effect in the European Union (EU) legal order, by focusing on the application of this doctrine to the fundamental labour rights today protected in the Charter of fundamental rights. Most notably, with the approaching of the fifth birthday of Bauer and Max-Planck, by looking at the case of the fundamental right to paid annual leave under Article 31(2) of the Charter, this article aims at unravelling the actual meaning of the conditions for the horizontal direct effect of the EU fundamental rights and the actual perimeter of this direct effect. Although the effectiveness of minimum labour rights mandatorily enhanced by this case law should be welcomed, it is argued that the doctrine of the horizontal direct effect of EU fundamental rights seems still stuck between being a proper constitutional doctrine and a mere type of direct effect. It is also claimed, first, that horizontal direct effect is not a unitary phenomenon in EU law. In spite of the continuity in the ECJ’s technical reasoning, there is indeed a striking contrast between the language of ‘perfect equalisation’ of the Charter to the treaties and its actual approach to the assessment of the horizontal direct effect of fundamental (labour) rights. The ECJ’s case law analysis on the fundamental right to paid annual leave will prove this point. Secondly, it is suggested that horizontal direct effect can be defined as a sui generis, on-call, subsidiary, corollary, and ‘amputee’ doctrine, and we will offer some considerations on each of these features by reference to the Court’s practice under investigation. Thirdly, we suggest that the horizontal direct effect of fundamental (labour) rights relies more on the history and trajectory of the EU regulation of that specific right in the EU legal order rather than on the wording of the Charter’s provision or other technicalities.

The rapid development of digital technologies makes life easier in many ways. One of these advantages is the ability to use digital evidence in criminal proceedings. At the same time, this gives rise to new challenges in protecting the right to privacy, since digital evidence often contains a large amount of personal information. Thus, the author of the article aims at exploring the issues of balance between the use of digital evidence in criminal justice and the protection of the right to privacy. The research methodology includes an analysis of scientific publications, current legal provisions, case law, and international standards. The author of the article emphasizes that, on the one hand, the legislation operates with the concept of “digital evidence” and emphasizes the possibility of its use. On the other hand, the norms of international law and Ukrainian legislation determine the need to respect the right of every person to privacy. This raises the issue of combining these two phenomena. An analysis of the ECtHR case law has shown that this issue is important. The Court does not consider digital evidence, the acquisition of which has led to a violation of the right to privacy, to be legitimate. Based on the analysis of the case law, the author emphasizes the critical importance of the right to privacy as a basic human right that should be upheld even during a criminal investigation. The results indicate the need for clear legislative regulation of the use of digital evidence, ensuring its proportionality, and the need to take into account the right to privacy as a fundamental right. The conclusions of the article emphasize the importance of international standards and case law in shaping approaches to the use of digital evidence, with a particular focus on the protection of the right to privacy in the context of criminal justice. The author also proposes a number of approaches that can ensure the lawful and appropriate use of digital evidence.

Objectives: to examine the theory of the Unconstitutional State of Affairs (ECI), formulated by the Constitutional Court of Colombia and subsequently incorporated by the Brazilian Federal Supreme Court (STF), from a historical, conceptual, and applied perspective. Theoretical Framework: the research is grounded in the theory of the Unconstitutional State of Affairs (ECI) as a critical instrument of constitutional analysis, articulating the foundations developed by the Colombian Constitutional Court, the jurisprudence of the STF, and the general theory of fundamental and human rights. Method: the study adopts the hypothetico-deductive method, with a monographic approach, based on bibliographical research and analysis of doctrine and case law from both the Colombian Constitutional Court and the Brazilian Federal Supreme Court (STF). Results and Discussion: The jurisprudential analysis of the ECI theory reveals the gap between normative formulation and the effectiveness of fundamental rights, emphasizing the interdependence between fundamental rights and state duties. It was observed that the full enjoyment of these rights depends on social and institutional commitment to their enforcement and on coordinated action among the branches of government. Once an unconstitutional state of affairs is identified, there is no room for the full realization of citizenship, which calls for structural and cooperative responses to address widespread violations of rights. Research Implications: tthe findings reinforce the relevance of the ECI theory as a legal and political instrument of social transformation, capable of promoting integrated institutional action and confronting structural and persistent violations in democratic contexts. The research contributes to the improvement of institutional practices and to the strengthening of judicial oversight of public policies, as well as to the development of shared accountability and justification standards in constitutional governance. Originality / Value: the originality of the study lies in the systematic analysis of the application of the ECI theory within the Brazilian context, through a comparative examination between the Colombian experience and the STF precedents. The paper offers a critical and applied interpretation of the Judiciary’s role in overcoming structural state omissions, highlighting the ECI theory as an innovative mechanism for the realization of fundamental rights in democratic societies.

Traditionally, fundamental human rights have occupied an important place in labor law. The ILO constitution of 1919 focuses, for example, on the right of freedom of association. Subsequent ILO documents stress other fundamental rights such as the right to non-discrimination in the field of labor. The fundamental rights of the worker did begin to get some attention in the EU too, especially in non-binding documents such as the Community Charter of the Rights of the Worker from 1989. Since the entry into force of the Treaty of Lisbon in 2009, the Charter of Fundamental Rights introduced at the summit in Nice is legally binding to the same extent as the EU Treaty itself. The Charter includes fundamental rights in the field of labor law under the heading ‘solidarity'. In this article two basic questions will be addressed. The first question will address the ‘old' issue of the clash between fundamental (labor) rights and the four economic freedoms of the EU, which are seen by the ECJ as of fundamental nature as well. Since the seminal cases of Viking and Laval, a lot has been written about this theme by both European and labor lawyers. I will not revisit the literature that has been written about these cases, but the more dogmatic issue of a (potential) clash between the four economic freedoms and the fundamental rights is still in need of clarification. The second question is whether the fundamental human rights will get a more important place in the case law of the European Court of Justice now that the Charter of Fundamental Rights is of binding character, or, will there be just a continuation of the already developed relationship between fundamental freedoms and rights or between two different kind of fundamental human rights? I will focus here on case law in the field of labor law. The article will finish with a plea for a proportionality test ‘light' in order to limit the interference of EU law with the essence of fundamental rights.

The objective of this article is to describe the development of the perception of human rights’ issues pertaining to the field of labour law under the new jurisdiction and legal order created by the European Communities. The progress in the human rights area shall be illustrated by changing approaches of the European Court of Justice and Member States and of course by the greater awareness of the citizens of the “ever closer Union” of their fundamental rights. The gist of the work tackles the most interesting labour law cases which the European Court of Justice was deciding and which are sometimes of trailblazer character. This article commences by a necessary introduction of human rights protection in the context of labour law. It further briefly tackles the development of the European Court of Justice’ case law regarding human rights’ aspects generally. It also describes various instruments of the other EC institutions tackling the controversial subject of human rights, up to the most recent document, The Charter of Fundamental Rights of the European Union and the Europe’s Constitution. The principal part of this article concentrates on social human rights case law and outlines some of the basic general principles that the European Court of Justice employed when deciding such cases. However, it was never the aim of this paper to provide a complete list of Community fundamental social rights in the field of labour law as the author is well aware of the fact that such task would require much more elaborate analysis of this topic. Quite contrarily, the purpose of this article is to highlight labour law aspects connected with the judicial protection of fundamental rights of employees within the framework of the European Union and to enable a more clearer insight into some of the key judgments in this area. The final part reflects protection of fundamental social rights of employees provided by the Community in the Czech legal order. The article was written with the ultimate purpose of illustrating that fundamental social rights of employees are bound to enjoy more and more respect and the values comprised in some of the cases of the European Court of Justice and certain key Community instruments such as the Charter, are to become a necessary part of the foundations of the future European integration.

This research aims at analysing the Constitutional Court’s case law in respect of restrictions on the fundamental rights of convicted individuals in correlation with society’s view of convicts. To do so, along with the methods of legal science (analysis of legal provisions and case law) the research uses sociological concepts, methods, and sources. The fundamental rights of an individual require the State to protect every individual’s human dignity in equal measure. However, even modern-day society still stigmatises particular groups of individuals, restricting their rights without good reason. The case law of the Constitutional Court of Latvia marks convicted individuals as a stigmatised group with limited rights. In the cases analysed, not even the minimum standards of fundamental rights protecting personal privacy were applied to persons serving a sentence for serious offences, with no individual assessment provided for, because society’s opinion, among other things, denies prisoners such fundamental rights. Furthermore, the convicted individuals may suffer from a life-long stigma as they keep being restricted in their rights – eg the rights to employment or to family life – even after the conviction is expunged. The State has to realise: if it limits the possibilities for convicted individuals to lead life with enjoying full rights, the probability of repeated offences by such individuals will be higher. By unreasonably restricting inclusion of convicted individuals in its life, society endangers rather than protects itself.

This article analyses the ECJ’s use of the margin of discretion technique to adjudicate on fundamental rights. It argues that the margin of discretion operates in a way that incorporates the interpretations of national decision-makers into the ECJ’s formulation of EU fundamental rights. In so doing, the margin of discretion does not uphold boundaries between national and European rights. Rather, it allows the national decision-maker and the ECJ to co-create the standard of protection of fundamental rights. The argument is based on an analysis of case law from the late 1970s to the early 2020s, and accounts for overlooked yet important distinctions between different uses of the technique. It shows that the ECJ’s use of the margin of discretion is not synonymous with the ECtHR’s margin of appreciation doctrine. The article contributes to the debate about the boundary question in EU fundamental rights law, namely the question of how national boundaries are, or should be, manifested. Margin of discretion, fundamental rights, ECJ, the boundary question

On 29 November 2019 the Supreme Court of Appeal handed down judgment in Qwelane v SAHRC & Others1 (Qwelane) wherein the notorious hate speech prohibition, section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act2 (PEPUDA), was declared unconstitutional and invalid. This decision, predicted by many and applauded by some,3 now awaits confirmation by the Constitutional Court. However, the focus of this article pertains not so much to the merits of the decision in Qwelane, but to the (possible) retrospective force of this judgment and more broadly to declarations of unconstitutionality and their retrospectivity in general. This article will evaluate whether or not it can be regarded as just and equitable to limit the retrospectivity of the Qwelane decision. This will be done by examining case law of a similar nature and by exploring the array of decisions taken under section 10 of PEPUDA. This inquiry will also consider the possibility of a special judicial arrangement to be made by the Constitutional Court, as well as some practical considerations that have to be regarded such as costs and the applicable procedural law. The arguments put forward are also applicable to future declarations of unconstitutionality. The task of the courts is rarely easy and their orders often inconvenient; more so where the injustice was caused by the very instrument that was formulated to protect our fundamental rights — the law. Yet, the severity of the task at hand should never move our judiciary to speak law without justice. For this purpose the current article will firstly examine the facts of Qwelane and thereafter we will discuss the theoretical underpinning of declarations of unconstitutionality and constitutional changes in this regard. This will be followed by an analysis of case law in which the retrospectivity of declarations of unconstitutionality was significant, whereafter the nature and scope of decisions taken under section 10 of PEPUDA will be evaluated. The injustice of (potentially) limiting the retrospectivity of Qwelane will then be considered and finally, the article will conclude by looking at certain procedural matters.

The article focuses on Human Dignity and Fundamental Rights. The objective is to characterize Human Dignity as the foundation of Fundamental Rights. It is sought to demonstrate that the content of Human Dignity is the Fundamental Rights. The text is divided into five parts, initially with the proposal of creating a concept and the characterization for Human Dignity. In the next step, religious, political and philosophical elements of the idea of ​​dignity are discussed. Then, the dignity in the Brazilian legal system is discussed, and the same occurs with Fundamental Rights. At the end of the article, there is a confrontation between Human Dignity and Fundamental Rights showing their intertwining. It was concluded that Human Dignity imposes limits on the actions of any organism and form of political or social organization. It is the foundation that determines the role of the Fundamental Rights. It is the condition of the existence of the human being. It is up to Human Dignity to bring the essence of what characterizes the human being in the juridical-social order. On the one hand, Fundamental Rights guarantee the realization of Human Dignity; on the other hand, dignity is concretized when Fundamental Rights are realized. The inductive method was used and the research was bibliographic and documentary. Predefined paragraph styles

While one may understand that respect for EU fundamental rights is a condition of the legality of EU acts, the (legal) situation is not as straightforward regarding acts adopted by national authorities. Most EU lawyers would agree with the contention that it is not always clear when and whether national authorities are acting within the scope of application of EU law and many, probably, still wonder about the sense of this ambiguous concept elaborated by the Court of Justice of the European Union (CJEU). The aim of this essay is to clarify the situations where EU fundamental rights bind national authorities following the entry into force of the Treaty of Lisbon and the legally binding status acquired by the Charter. The potential federal effect of the Charter will be assessed as it is sometimes alleged that the new legally binding status of the Charter may eventually convince the CJEU to enforce common standards applicable right across the EU regardless of whether national measures fall within or outside the scope of application of EU law. Another important issue is the potential effect of the Charter on the application of EU fundamental rights in the context of legal proceedings between private parties. Accordingly, this article will also explore the potentiality for an increased “horizontal effect” of the EU fundamental rights set out in the Charter, that is, whether they may be more easily relied upon by a private party against another private party. Finally, a classification or mapping of the various situations in which private parties may rely upon EU fundamental rights to challenge the legality of national measures will be offered. This framework for analysis of the CJEU case law is based on a broad reading of the ‘Wachauf’ and ‘ERT’ lines of cases. Such a novel classification appears in our view necessary in light of the latest judicial developments and the need to bring more certainty as to the scope of application of EU fundamental rights to Member States’ actions.

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution—that the autonomy of EU fundamental rights law is rooted in the unity of the market—with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

The contribution explores the implications of disagreements about rights in the ‘multi-layered’ European polity for the autonomy of EU fundamental rights law. It argues that insomuch as the EU’s weak claim to supra-national political authority is corroborated by a strong case for economic integration, the internal market operates not simply as a constraining factor in the effective realisation of fundamental rights, but provides the very foundation of their autonomous interpretation in the EU legal order. Sections II and III elaborate upon the relationship between conflicts of authority in the European legal space and the autonomous interpretation of EU fundamental rights law under conditions of political disagreement. Section IV links the argument to the often-alleged instrumentalisation of EU fundamental rights in the service of the market. Sections V and VI substantiate the guiding contention of the contribution — that the autonomy of EU fundamental rights law is rooted in the unity of the market — with an analysis of pertinent case law. The concluding section suggests that the transformation of the EU into a ‘genuine’ human rights polity must proceed through a politicisation of the market by virtue of fundamental rights law.

The issue of balancing free trade with the protection of values, national regulatory autonomy and sovereignty has recently been accentuated in the area of fundamental (human) rights. It is well established case law that fundamental rights are a part of the general principles of Community law protected by the Court, but their precise status in the EU legal order has remained unclear up to the present. Particularly questionable is the issue of the hierarchy of these rights in relation to Treaty provisions. This paper focuses on the interaction between fundamental rights and fundamental (market) freedoms, and it analyses the implications of the case law dealing, on the one hand, with their mutual enhancement and, on the other hand, with their potential conflicts. Both types of cases raise sensitive constitutional issues, because, while supporting fundamental rights protection, there is an occasional lack of concern for other interests that national regulators seek to protect.

This study presents a critical analysis of five legal precedents established by the Supreme Court of Nepal involving medical negligence, with the aim of understanding the legal principles, challenges, and implications in such cases. The primary objective of this research is to contribute to the discourse on patient rights, doctor accountability, and healthcare quality. To achieve this, a case law study approach was adopted, involving critical analysis of relevant case law. The selected precedents were thoroughly examined to identify legal principles, judicial reasoning, and the application of laws in different contexts related to medical negligence. The key findings from the analysis of the case laws emphasize the importance of ethical conduct and professionalism in medical practice, the judiciary’s commitment to upholding justice, and the balance between patient rights and doctors’ accountability through the distinction between civil and criminal liability.