Application Of Fundamental Rights Research Articles

European Certificate of Parenthood: aspects on the proposal for recognition of parenthood of same-sex couples in the European Union

This article addresses the difficulties of same-sex families in terms of regulations and rules of private international law, especially regarding the conditions for recognition of parenthood in relation to their children and, consequently, the implications on the nationality and free movement of these children and adolescents. For the elaboration of the research, the bibliographical exploratory methodology was adopted, with the objective of analyzing what and if there are currently rules that have the power to regulate such issues, so that a European Certificate of Parenting could supply the lack of them and guarantee the application of fundamental rights to rainbow families. For this, a case study was presented through jurisprudential analysis, in addition to other paradigm decisions regarding the theme, directives and treaties. Finally, the results obtained indicate that the existence of a European Certificate of Parenthood is fundamental to guarantee decent conditions for same-sex families.

WEIGHTING PRINCIPLES IN CIVIL PROCEDURE AND THE GUARANTEE OF PROTECTION TO FUNDAMENTAL RIGHTS RELATED TO THE EXISTENTIAL MINIMUM

Objectives: This article aims to examine and study the normative provisions concerning the weighting of principles in Civil Procedural Law aiming at the guarantee and protection of Fundamental Rights concerning the existential minimum. With the innovations brought by the Civil Procedure Code of 2015, in which the legislator sought to write it in the light of the precepts of the normative Federal Constitution of 1988, there was a clear constitutional influence on civil procedural provisions, making the Courts of Justice and their magistrates, in the exercise of their attributions, to perform obligations and responsibilities different from those performed until then.
 Methodology: For that, it uses bibliographic-documentary analysis, from the deductive method, to infer the conclusions. It examines, therefore, the attributions of the Judiciary, which from applying the laws, passes in its attributions and decisions to observe the legal system as a whole, through a normative and principled analysis, recognizing new rights and effectively putting into practice fundamental rights with direct foundation in the constitutional text.
 Results: It is concluded that in the normative absence or in the conflict of norms, especially in the figure of the principles, when providing the effective application of Fundamental Rights, under the goal of ensuring and promoting minimum material conditions for human survival, this will take place under the prism of balancing constitutional principles, such as the Existential Minimum, influencing this weighting not in the dimension of the validity of the principles, but in their weight in concrete cases, which tend to lean towards the protection of the dignity of the human person as a vector of fundamental rights and foundation of the Republic.

Rechtliche Implikationen der Völkerrechtsfreundlichkeit: Sonderfall EMRK und EGMR – Österreich

The European Convention on Human Rights (ECHR) enjoys constitutional status in Austria. This is a special case, both in comparison with the integration of the ECHR in the legal systems of other contracting states and in comparison with the rank of other human rights treaties in Austria. However, the constitutional rank alone does not mean that the Austrian legal system is particularly friendly to international law, namely the ECHR. It does, however, lead to a self-evident reference to the guarantees of the Convention and the case law of the European Court of Human Rights (ECtHR) in the everyday application of fundamental rights, which is more an expression of the function of the ECHR as a supplement to national constitutional law than of a special friendliness towards international law. Additional aspects, however, suggest that the Austrian legal system is friendly to international law with respect to the ECHR.

Application of Fundamental Rights in Cyberspace: A Dissection of the Digital Security Act

Application of Fundamental Rights in Cyberspace: A Dissection of the Digital Security Act

Two Roads to Guantanamo: The Canadian and United States Supreme Courts’ Approaches to the Extraterritorial Application of Fundamental Rights

Following Catherine Kellogg’s engagement with Hannah Arendt’s question of whether there are modes of non-nationalist belonging, I begin with the recognition that the moment when the “nation-state ... will nullify itself as such” still lies far in the future, if it ever occurs at all. Real (as opposed to ideal) history happens through incremental, fragile evolutionary change, not through sudden leaps from one fundamental paradigm to another. If the ideal of the self-nullifying nation-state is an intellectual fantasy, however, it is also an ideal in the Kantian sense, one that can motivate and orient political action. Indeed, it is precisely the contingency of actual history that makes space for real-world political movements of groups and individuals that change paradigms from within.

The Silver Plastics Case: Where Should the Boundaries Between Effective Competition Law Enforcement and Safeguarding a Parties’ Fundamental Rights Lie? (C-702/19 P Silver Plastics)

Case C-702/19 P Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co. KG v European Commission, Judgment of the Court (Ninth Chamber) of 22 October 2020 In this judgment, the Court of Justice of the European Union examined the fairness of competition law proceedings, especially as regards the hearing of witnesses. As to the outcome, the Court confirmed that the parties have no absolute right to hear witnesses before the EU Courts. Nevertheless, this case is also worth analysing as an interesting input to the current debate on the scope of the practical application of fundamental rights’ protection measures in antitrust investigations.

Mapping the Line of Distinction between Conventional and Modern Constitutionalism: Understanding the development of Rule of Horizontal Application of Fundamental Rights with a key focus on Article 21 through ‘Positive Duty’.

Mapping the Line of Distinction between Conventional and Modern Constitutionalism: Understanding the development of Rule of Horizontal Application of Fundamental Rights with a key focus on Article 21 through ‘Positive Duty’.

The Interpretation and Application of Fundamental Rights in Civil Cases in the Czech Republic

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Extraterritorial Bulk Surveillance after the German BND Act Judgment

Foreign surveillance as a means of circumventing existing legal safeguards – Different perspectives on the problem of the extraterritorial application of fundamental rights in US and EU legal models – The limited usefulness of effective control tests for establishing the responsibility of states for action taken in cyberspace – Judgment of Bundesverfassungsgericht in the BND Act case as an interpretative guideline for the regulation of foreign surveillance in EU member states – Electronic surveillance as a threat to European integration process.

Private Censorship on Social Media: A Comparative Analysis of the Horizontal Application of Fundamental Rights

Private Censorship on Social Media: A Comparative Analysis of the Horizontal Application of Fundamental Rights

A EFETIVIDADE DOS DIREITOS FUNDAMENTAIS SOCIAIS E A PROTEÇÃO DO CONTEÚDO MÍNIMO PARA GARANTIA DA DIGNIDADE DA PESSOA HUMANA

A presente pesquisa teve como objetivo tratar da efetividade dos Direitos Fundamentais Sociais, protegendo o conteúdo mínimo existencial a fim de garantir o Princípio da Dignidade da Pessoa Humana. Para tanto, abordou-se sobre o conceito geral dos direitos fundamentais, identificando as suas principais características e a diferença com Direitos Patrimoniais, enfocando, brevemente, os princípios constitucionais da proporcionalidade e razoabilidade na aplicação dos direitos fundamentais e a fiscalização de normas perante a violação deste. Após, partiu-se para uma aplicabilidade específica, explicando o que são os direitos fundamentais sociais para, então, tratar sobre o conteúdo mínimo existencial e a justiciabilidade de tais direitos, relacionando-se com a Teoria da Reserva do Possível e o seu uso perante o Poder Judiciário como alegação do Estado para afastar o conteúdo mínimo existencial do dever deste em aplicar os direitos fundamentais sociais. Tratou-se também sobre a eficácia social de tais direitos, já que demandam a distribuição de recursos do Estado e a prática de políticas públicas para torná-los efetivos socialmente. O Princípio da Dignidade da Pessoa Humana foi tratado para explicar a sua relação com os direitos fundamentais sociais. Por isso, faz-se necessária uma análise da efetividade dos direitos fundamentais sociais, pois, não sendo efetiva a aplicabilidade deles, não há o que se falar em Dignidade da Pessoa Humana, já que aqueles são precursores desta. Quanto à metodologia, foram utilizadas as técnicas do referente, da pesquisa bibliográfica, da categoria e do conceito operacional.

Judicial Governance in European Private Law: Three Judicial Cultures of Fundamental Rights Horizontality

This article sketches and compares, in the light of the author’s approach to judicial governance, different models of application of fundamental rights by civil courts. It proposes a taxonomy of three cultures of fundamental rights horizontality: (1) the post-authoritarian culture, (2) the old continental culture, and (3) the Nordicinsular culture.

The Implications of the Recent Jurisprudence of the Court of Justice of the European Union for the Protection of the Fundamental Rights of Athletes and the Regulatory Autonomy of Sporting Federations

Fundamental rights of the EU are in principle applicable in relations of vertical nature, in which individuals are confronted with the state. However, in relations of horizontal nature, in which both parties are individuals and on equal terms, applicability of the Charter of Fundamental Rights of the EU has been long disputed among scholars. Only recently, in rulings Egenberger and Bauer, the Court of Justice of the European Union has directly addressed this issue. This paper elaborates on the consequences of the Court’s decision for the European sports model, presents reasons for justification of horizontal applicability of fundamental rights of the EU towards sports and proposes a method of applying the framework developed by the Court to conducting sports activity in the EU. Main argument of the Author is that the rules regulating sporting activity, if this activity falls within the scope of the law of the EU, may be subject to assessment of conformity with fundamental rights of the EU thanks to direct horizontal applicability of the Charter, which explicitly results from the recent Court’s rulings.

JUDICIALIZAÇÃO DA SAÚDE E DIREITOS FUNDAMENTAIS: CRITÉRIOS JUDICIAIS PARA CONCESSÃO DE MEDICAMENTOS À LUZ DOS TRIBUNAIS SUPERIORES

A questão da saúde revela-se pelo primado da dignidade da pessoa humana, fundamento constitucional a partir do qual se assentam todas as relações na ordem jurídica social. Nota-se, no Brasil, um incremento da intervenção do Poder Judiciário para assegurar a tutela dos direitos individuais nessa questão, especialmente para a concessão de medicamentos imprescindíveis a pacientes em situações concretas de extrema necessidade ou que apresentam sua vida em risco. Esse mecanismo de intervenção judicial tem apresentado desgaste, diante da falta de patamares jurídicos concretos e estáveis. A constante tensão havida a partir do desequilíbrio criado pela não uniformidade em tais decisões judiciais tem levado, ultimamente, os Tribunais a mudarem tal cenário, com o estabelecimento de novas premissas para que sejam concedidas tutelas que permitam o acesso das pessoas a medicamentos para seus tratamentos. A partir da metodologia analítica dedutiva, com amplo apoio bibliográfico, o objetivo do presente artigo é analisar criticamente a sedimentação da atuação dos tribunais na concessão de medicamentos, tendo por base os direitos e garantias fundamentais.

Addressing the Curious Blackspot that is the Separation Between the Principle of Legality and Sentencing

The principle of legality has evolved into a clear and entrenched jurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and freedoms. In recent years it has been increasingly applied by the courts to limit the scope of legislative provisions which potentially impinge on human rights and fundamental freedoms. Yet there is one domain where the principle of legality is conspicuously absent: sentencing. Ostensibly, this is paradoxical. Sentencing is the realm where the legal system operates in its most coercive manner against individuals. In this article, we argue that logically the principle of legality has an important role in the sentencing system given the incursions by criminal sanctions into a number of basic rights, including the right to liberty, the freedom of association and the deprivation of property. By way of illustration, we set out how the principle of legality should apply to the interpretation of key statutory provisions. To this end, we argue that the objectives of general deterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send off enders with dependants to terms of imprisonment. Injecting the principle of legality into sentencing law and practice would result in the reduction in severity of a large number of sanctions, thereby reducing the frequency and extent to which the fundamental rights of off enders are violated. The methodology set out in this article can be applied to alter the operation of a number of legislative sentencing objectives and rules.

Religion v. Reform: Role of Indian Judiciary vis-à-vis ‘Essential Religious Practices’ Test

Even though India has considerably benefited from the distinction between what is essential to a religion and what is not, the “essential religious practices” test has always remained a debatable issue regarding its legality in a secular state. Very recently, the Supreme Court resorted to the said test while deliberating upon the issue of triple talaq in Shayara Bano v. Union of India, where it could have easily taken the gender based reasoning to reach its final judgment. However, not only in this case but in many others also, the Supreme Court has preferred to declare something as not essentially religious, rather than subjecting it to other secular tests like public order or morality and more so, avoiding to adopt an approach towards horizontal application of fundamental rights. The legitimacy of the test has come into limelight yet again with the case of Goolrokh Gupta v. Burjor Pardiwala. Though the Hon’ble Supreme Court has passed an interim order in favour of the Parsi woman, thereby allowing her to attend her parent’s last rites, the primary question as to what constitutes the religious identity of a Parsi has not yet been settled. It is just a matter of time before we get to see the verdict of the Hon’ble Court and also which path it ultimately resorted to. In this context, the present paper seeks to delve into the question of competency of the Courts in transforming itself into a theological authority by tracing the evolution of the test and analysing its legitimacy in a nation like India, by briefly comparing with the ECthR doctrine of margin of appreciation.

Wielopoziomowy konstytucjonalizm Unii Europejskiej a stosowanie praw podstawowych

The aim of the article is to analyse the application of fundamental rights in the complex political and legal system of the European Union, which can be described as a multilevel constitutionalism. Because the standards of individual protection are created both at the level of national constitutions as well as at the supranational, EU level, it is possible that individual fundamental rights will be understood differently in the Member States. The article tries to answer the question how to solve such an interpretation conflict. A way out is suggested in the form of the need to conduct a constitutional dialogue on the understanding of fundamental rights. The conditions necessary to conduct such a dialogue are also identified. It will lead to achieving the European constitutional consensus. The article puts forward a thesis that the development of a European consensus as to the understanding of fundamental rights leads irrevocably to the formation of a European constitutional identity.

From the Horizontal to the Diagonal Effect of Fundamental Rights within the Employment Contract: A Latin American Perspective

This work explains the development of the direct applicability of fundamental rights in labor matters in some Latin American countries, where courts and legal doctrine postulate the validity of these rights as limits to the power of the employer. This applicability, commonly known as “horizontal effect” of fundamental rights between private individuals, is especially important in the field of labor law, as opposed to other areas of private law. Firstly, because contrary to what has been postulated by the constitutional narrative, this applicability originated within labor law at the beginning of the twentieth century, and secondly, because, with regard to labor law, this applicability does not increases judicial discretion, but, on the contrary, endeavors to limit corporate discretion. Consequently, by recognizing the particularisms of labor law, we will postulate that we are dealing with a diagonal, rather than a horizontal, effect of fundamental rights.

The Influence of Fundamental Rights on the Law of Succession

One of the most debated issues that European lawyers are tackling is the enforcement of fundamental rights in private law. Nonetheless, the intersection between inheritance law and fundamental rights is still neglected, due to the misleading idea of the static nature of the former. The aim of this paper is to investigate whether in Europe a nexus exists between the evolutionary patterns of inheritance law and fundamental rights. The article ascertains if and how the rules aimed at identifying the heirs have been influenced by the jurisprudence on fundamental rights, considering that those rights have emerged as leading factors in directing many legislative reforms. The paper then concludes by examining the possibility of a horizontal application of fundamental rights and, more specifically, if the will of the testator can be limited, somehow, by direct application of those rights, such as the principle of non-discrimination or the respect of private and family life.

Fundamental Rights in Early American Case Law: 1789-1859

Abstract Fundamental Rights Law is a ubiquitous feature of modern American jurisprudence. Where did the term “Fundamental Rights” come from, and how was it applied in early American case law? This article outlines the genesis of fundamental rights law in early 17th century England and how this law developed and was applied over time. The English Bill of Rights of 1689 was the first attempt to codify these rights in English law. When the English legal system emigrated to America along with the early American colonists, it included the English conception of fundamental rights. The framers of the United States Constitution incorporated and expanded these rights. Early American Case law kept strictly within this tradition for the most past, and used the term “fundamental rights” usually for rights which had long been recognized in Anglo-American society. This article notes the concordance between the application of fundamental rights in early American case law and the long tradition of fundamental rights which ripened in the Anglo-American legal tradition.