Basic Fundamental Rights Research Articles

Практика розгляду судами справ про притягнення осіб до адміністративної відповідальності за вчинення домашнього насильства

The article analyses the practice of courts considering cases of bringing persons to administrative liability for committing domestic violence. As social conditions change, so do the forms of violent acts and the preconditions for their commission, as well as the practice of courts considering such cases. Domestic violence is behaviour in which physical and psychological coercion is used to establish and maintain control over a loved one, with whom the perpetrator is usually connected by common life or family ties. It is often a cyclical pattern of behaviour that escalates, endangering the life and emotional well-being of victims. The rights violated by domestic violence include basic fundamental rights protected by international law, such as the right to life and bodily integrity and freedom from torture and other cruel, inhuman or degrading treatment. The article identifies the penalties most often applied to persons brought to justice, including a fine, which is considered to be insufficiently effective because it may have an impact on the victim and because of the small amount of the fine. The problem identified is that the courts do not pay enough attention to clarifying all the circumstances of the case, and the justification for applying the type of penalty for domestic violence is insufficient. The problem of recording cases of domestic violence is equally problematic, as protocols are often drawn up in violation of the requirements of the Code of Administrative Offences. The problem of recognising children as victims in cases of violence committed in their presence remains. It is noted that the establishment of administrative liability for domestic violence is not a sufficiently effective means of combating domestic violence and preventing its recurrence.

A Study on the Legal Aid Services-Provisions and the Defence Legal Aid Scheme

India is regarded amongst the top countries in the Asian continent in terms of the recent technological, economic developments. The country with the most population is still striving to get rid of illiteracy which is now a major problem faced by the rural population in the country. Legal Aid Defense Counsel Scheme 2022 FOR PROVIDING LEGAL AID, ASSISTANCE & REPRESENTATION IN CRIMINAL MATTERS IN LINE WITH "PUBLIC DEFENDER SYSTEM" aims to provide legal aid to poor and needy in criminal justice system. The scheme aims at providing legal aid, assistance & representation in criminal matters in LINE with a public defender system. At present, Assigned Counsel System of dispensation of Legal Aid is being followed in India. This will create institutional capacity to effectively provide Legal Aid to poor, needy, and poor in the criminal justice systems. To have a successful legal aid movement in India, the government needs to take appropriate steps by spreading awareness and educating the people about their basic fundamental rights.

Critical Study on the Legal Policies Relating to Education: With Special Reference to Trafficked Children Living in Childcare Institutions

The edifice of the Indian Constitutional order, which is rooted in the ideals of social justice, liberty, equality, and dignity of individual, secures the basic fundamental rights of its citizen without any discrimination. In spite of constitutional guarantees to its citizenry, vulnerable sections of Indian societies are subjected to various forms of exploitation. Amongst those, children are the most susceptible, due to societal indifference, and lack of compassion and empathy, which resulted in large-scale child trafficking in India. Phenomena of child trafficking and its volume pose a serious question about efficacy of existing policies and programmes against it. In India, there are ‘Child Care Institutions’ (CCIs) to look after the well-being and rehabilitation of such children. Unfortunately, not much attention has been paid to strengthening such homes. Under the existing framework, responsibility has been cast on CCIs to oversee the overall growth and development of such institutionalised children. Appropriate education is their only crutch on which they can overcome their physical and psychological trauma and suffering. From the present study, it is evident that educational rights of such children are imperative for the restoration of their life in the true sense. Measures for improving their life are suggested thereof.

INTERNATIONAL HUMAN RIGHTS AND ITS JUDICIAL ENFORCEMENT IN PAKISTAN

The fundamental content of human rights, including freedom of thought, conscience, and religion, also implies that all people are born free and have the same rights. As family members, people form unique businesses within society and are referred to as contributors. When we discuss 539 BC, we gain a better understanding of the victory over Babylon. All of the slaves of war were released by Cyrus, and they were free to go wherever they pleased, which became a brand new element for people. A great deal of emphasis was placed on human liberty and other rights, which was a remarkable act at the time because there was no concept in people's minds. When we consider human rights, we get the impression that it is difficult to locate all primary rights under the shadow of both Islamic and secular legal guidelines. Every Pakistani citizen has the right to free expression, the right to think, and the right to believe. These are the basic fundamental rights guaranteed to the public by the Constitutions of 1956, 1962, and 1973. The primary goal of those constitutions became to provide guarantee to the rights of others. Pakistan has an independent human rights commission. Primary purpose of this study is to evaluate judicial enforcement of international human rights in Pakistan. Key Words: International Human Rights, Judicial Enforcement, Fundamental Rights in Pakistan.

Direct and indirect factors associated with child marriage: Evidence from India using NFHS-4 data

Background: Child marriage is a breach of the basic fundamental rights of a child and is a major concern for policy makers in many countries.Objective: The present study intended to identify the direct and indirect socio-demographic factors associated with child marriage among 15–17 years old girls in India.Participants and setting: The study used National Family Health Survey-4 data. The sample comprised of 1459 married girls and an equal number of unmarried girls aged 15–17 years at the time of the survey.Methods: Multivariable logistic regression was performed to identify the factors associated with child marriage. A hypothetical path model was constructed and tested. The path models were refitted after removing the insignificant path coefficients, and finally, the significance of direct as well as indirect effects were obtained.Results: Path analysis revealed that mother's education was the only factor that had both significant direct and indirect effects on child marriage (p < 0.001). Religion had only significant indirect effect (p = 0.047) through girls' education. Besides mother's education, the factors that showed significant direct effects on child marriage were wealth index (p = 0.012), caste (p = 0.009) and education of the girl (p = 0.009).Conclusions: Education of both mothers and the girls, wealth index and caste had significant direct effects on child marriage whereas significant indirect effect was exerted by mothers' education and religion. Therefore, these factors should be given primary focus while formulating strategies to curb child marriage in countries like India.

Hak Atas Privasi dan Politik Hukum Undang-Undang Nomor 27 Tahun 2022 Tentang Pelindungan Data Pribadi

This study aims to analyze the legal policy behind Law Number 27 of 2022 on Personal Data Protection and the right to privacy as a basic fundamental rights through Article 28G paragraph (1) of the 1945 Constitution of the Republic of Indonesia. The presence of personal data protection arrangements is a necessity and besides, the increasing penetration of internet users and the development of information and communication technology has a very significant impact on human life. Thus causing access to the world to be borderless, which means that everyone is able search for information and do anything on the internet. With unlimited open access, it can bring up the potential for illegal acts through the internet. This research is a normative legal research that examines the rules of law with a statutory approach. This study concludes that the legal politics of Law Number 27 of 2022 is democratic and responsive legal politics and is in line with the values contained in the national philosophy of Indonesia.

Crying Wolf Too Many Times: The Impact of the Emergency Narrative on Transparency in FRONTEX Joint Operations

Crisis-driven EU policy in recent years fits within a securitisation narrative, in which the claim of public security threat outweighs fundamental rights and their accountability safeguards. Under this policy development, Frontex, the EU Border and Coast Guard Agency, has experienced an impressive expansion in its powers and competences, without the equivalent enhancement of accountability safeguards. This article focuses in particular on the issue of transparency as a fundamental right and an element of social and political accountability. Specifically, it examines how lack of transparency in complex multi-actor structures, such as Frontex joint operations, can result in gaps in accountability and impact the enforcement of basic fundamental rights of EU citizens and migrants. Using a conceptual perspective of accountability and securitisation, and highlighting specific gaps in transparency in the context of Frontex joint operations, this article aims to show how the lack of transparency has been determined by the situation of emergency and has continued to remain unaddressed due to a constant state of institutional emergency, feeding back into the perpetuation of the securitisation narrative.

Recruitment and Use of Child Soldiers in Afghanistan: Cultural Traits as Pivotal Factor

This paper explores the cultural values that prevailed in Afghanistan to understand the recruitment and use of underage soldiers in the long-lasting armed conflict while comparing the existing domestic and international law. The study analyzed the effect of the traditions of Afghans on child soldiering. The method was doctrinal, and therefore, the collected and analyzed data was qualitative. The analysis was thematical, where each related idea was subjected to review and evaluation. The research found that since time immemorial, the Afghan culture traditions were conducive to underage soldiering for various reasons, including peace and justice where male and female child warriors are treated as heroes, perhaps more than any other member of the Afghan society. Due to the stated reasonings, the study established that more underage soldiers were used and recruited during the period of the British Empire, Soviet invasion of Afghanistan, and the civil war that caused the Taliban and Northern Alliance to resume control and in the post 9/11 phase of armed conflict in Afghanistan irrespective of domestic and international law that prohibited the recruitment and use of underage soldiers as it violated their basic fundamental rights of childhood.

O estado de coisas inconstitucional: um estudo de caso sobre a ADPF 347

O presente trabalho busca uma teorização a respeito do Estado de Coisas Inconstitucional, sendo esse um instrumento utilizado como forma de combater a omissão estatal a fim de garantir direitos fundamentais básicos. O citado instrumento é comumente utilizado pela corte colombiana, porém no Brasil foi citado em uma decisão judicial pela primeira vez na ADPF 347 em agosto de 2015, quando o STF reconheceu violação de direitos no que se refere ao sistema prisional, ainda não é possível ter uma visão sobre seus efeitos, devido os comandos da corte serem de médio e longo prazo, no entanto a citada teoria vem causando muitos debates no meio jurídico, principalmente no que se refere ao ativismo judicial.

COVID-19 and torture

&#x0D; &#x0D; &#x0D; &#x0D; Over the past few weeks, and with the Editorial already at completion, the COVID-19 pandemic has invaded our lives. Its systemic impact has affected, and continues to affect in equal measure the provision of rehabilitation to victims of torture.&#x0D; Amongst the many areas in which COVID-19 has impacted the field of prevention and rehabilitation of torture survivors, at least 8 areas of concern can be highlighted.&#x0D; 1. Attacks on basic fundamental rights and unnecessary increase in social control measures (Human Rights Watch, 2020a)&#x0D; 2. Increases in cases of ill-treatment or torture linked to the pandemic itself. For instance, various media sources have reported cases related to the dissemination of information in countries where this was considered to be against the interest of the State (Wang, 2020; Human Rights Watch, 2020b; Amnesty International, 2020a)&#x0D; 3. Respect for the rights of detainees and COVID preventive measures in detention settings that are compliant with human rights (Council of Europe, 2020; OHCHR, 2020; Council of Europe, 2010) and especially amnesty processes for political prisoners or the use non-custodial measures (Comninos, 2020; Amnesty International, 2020b).&#x0D; 4. Increases in cases of gender-based violence (Ford, 2020; UNFPA, 2020; UN Women, 2020) and assaults on homeless populations (Phasuk, 2020; Hartley, 2019), both related to fear and isolation.&#x0D; 5. Relapse of symptoms, especially night mares, flashbacks and somatic symptoms, in survivors that were ill-treated or tortured while in custody, due to COVID- related self-confinement or measures of medical isolation.&#x0D; &#x0D; &#x0D; 6. The reshaping of society: Will there be a change in values towards more egalitarian, empathetic and supportive societies? Or an evolution towards a more fearful society with an increasing lack of solidarity as fear instils?&#x0D; 7. The use of warlike metaphors (the “war” on the Coronavirus) as a prelude to restrictions in freedoms, censorship or authoritarianism in the name of the collective good (Human Rights Watch, 2020a).&#x0D; 8. Cutting budget allocations for the most disadvantaged, vulnerable groups in general and survivors of torture specifically, in favour of security policies or market-based post-COVID decisions (UNDP, 2020; European Council, 2020).&#x0D; &#x0D; &#x0D; &#x0D; &#x0D; These are some of the many areas of reflection on COVID-19 as a global crisis in the field of human rights and the prevention of torture and rehabilitation of torture victims.&#x0D; Torture Journal invites our readers to share your experiences, reflections, research and data in the form of a Letter to the Editor, News or Research Report for inclusion in future issues of the Journal. This is a global crisis which may, in turn, foster a shared learning opportunity for all.&#x0D; &#x0D; &#x0D; &#x0D; &#x0D; &#x0D; &#x0D; &#x0D;

Study on the minor guardianship system for children living in institution

본 연구는 아동시설에서 생활하는 아동들을 대상으로 미성년 후견인제도의 운영실태 조사를 통해 현행 시설아동 후견인 제도의 현황 및 문제점을 파악하고자 하였다. 이를 위해 전국의 아동양육시설과 공동생활가정(그룹홈) 235개소를 대상으로 설문조사를 실시하였다. 생활시설아동의 후견제도 실태조사 영역은 1)시설 및 보호 중인 아동의 특성, 2)아동의 후견인 현황, 3)아동의 후견인 지정절차 경험, 4)아동의 후견인으로서의 권한행사 등으로 구분하여 조사되었다. 조사결과 후견인의 책임에 대한 기준의 모호성, 후견인 ㅅ니청 및 지정과정에서 행정절차상의 복잡성, 아동의 일상생활 특성이 반영되지 않은 후견활동의 비효율적 운영, 아동후견에 대한 시설운영자 및 담당공무원들의 인식 부족, 교정시설 등 치료시설의 특성이 반영되지 않은 후견제도 운영 등이 문제로 제시되었다. 본 조사결과를 바탕으로 향후 생활시설을 포함한 보호아동들을 위한 후견인 제도의 개선방안을 제안하였다.Children have basic fundamental rights to development and protection, which parents have responsibility to ensure. If children are not subject to the parental responsibility, minor guardianship is supposed to be open. This study explores the guardianship of children who are living in institutions including group-home. For this study, 235 institutions and group-homes for children were investigated nationwide. Structured questionnaire was used as a research instrument. FGI with service providers working in institutions for children were implemented to make sure the study results. The characteristics of children, the way ro work guardianship of children, the process of guardianship, the scope of guardianship, and alternatives to guardianship were investigated. The study findings suggest strategies and implications for guardianship of children living in institutions.

Reconfiguration of Arab and Middle Eastern Regions beyond Political and Economic Threats

Arab world and Middle Eastern region have suffered from wars and conflicts, which have resulted in creating a negative impact on the economy. In the past years, few studies have focused on discussing the impact of democratization in the Middle East and Arab region. The citizens of the Middle East region have suffered from authoritative style of governance. The democratic system is ideal for the Middle East region. It ensures that the basic fundamental rights of the citizens are protected. There are various factors, which provide hindrance in the adaptation of democratic system in both regions. This study explores major problems faced in the implantation of democratization system in the Middle East. Furthermore, the merits and demerits associated with the democratization system have also been highlighted. It has been evaluated that democratization system is beneficial for the Middle Eastern region. The implementation of democratization would be helpful in delivering benefits to the citizens. In a democratic system, the opinion of the public is considered in formulating policies. However, authoritative style of leadership and governess could cause hindrance in delivering benefits to the citizens. Thus, it can be concluded that democratization system is well-suited for Middle East region specifically. Moreover, present political setup or regime has failed to provide facilities to the public. So, public awareness should be created towards a limited democratization system as it has the capability of delivering benefits across all the sectors.

Is the Supreme and Constitutional Courts’ Rebellion Against EU Law a Threat for the Lack of Direct Effect of the New Generation EU Free Trade Agreements?

This article presents the current perspective on the roles of Constitutional Courts of the EU Member States in the future implementation of the new generation Free Trade Agreements (FTAs)_, particularly concerning the application of the ‘counter-limits doctrine’. According to such doctrine, whenever national law amounts to a breach of EU law, the judge shall apply European Union law. However, if and when provisions of EU law would infringe on basic fundamental rights protected by the Constitution, then the Constitutional Court would declare the primacy of domestic law to protect the citizen’s fundamental rights. The present article discusses the current trend in the judicial rebellion pending in the EU against the Court of Justice of the European Union (CJEU) and argues that it should be tackled by the European Commission in a firm and strong manner, as the above situation adversely impacts also the everyday application of the new generation of FTAs by the EU.

Domestic violence, 498 a and judiciary: Shifting dimensions

To protect the rights of every citizen is the fundamental accountability of efficacious democracy like India. To make available safeguard and secure from breach or violation of individual rights, Indian Constitution provides basic fundamental rights to every citizen of India. In addition to basic fundamental rights, other legal protection to citizens against crime are also provided in various categories of laws like civil laws, criminal laws, family laws, property laws etc. Indian Penal Code, 1860, is the primary source for the classification of crime against human body and its punishment in India.

Liberdade Religiosa e Conflitos Religiosos no Ambiente de Trabalho

O presente artigo se propôs a analisar o direito de acomodação da liberdade religiosa no ambiente de trabalho. Ainda nesse cenário, foram analisados os conflitos religiosos que podem ser suscitados nas relações de trabalho. Assim, qualquer afronta ao direito de liberdade religiosa sem motivo plausível, estar-se-á diante de uma afronta dos mais elementares direitos fundamentais. Diante disso, o artigo utilizar-se-á como emprego metodológico a pesquisa bibliográfica e o método de estudo o dedutivo, tendo em vista que o presente artigo parte da compreensão da regra geral para os casos específicos.

O Direito Fundamental dos Servidores Públicos à Negociação Coletiva em Face da Convenção 151 da OIT

Este artigo tem por objetivo analisar a ratificação da Convenção 151 da OIT pelo Brasil, partindo de uma análise acerca da possibilidade de se considerar os direitos previstos em tal tratado como direitos fundamentais, após a sua incorporação pelo ordenamento jurídico brasileiro. Além disso, pretende-se analisar, de modo mais específico, o direito à negociação coletiva dos trabalhadores da Administração Pública, que é previsto nessa Convenção, a partir do modo como tal instituto vem sendo tratado pelo Estado brasileiro, e também quais seriam os efeitos do reconhecimento da negociação coletiva como um direito fundamental. Para tanto, buscou-se o estudo hipotético-dedutivo das questões existentes nas lacunas do direito brasileiro, via análise dedutiva de bibliografia especializada e as hipóteses de resposta apresentadas. Também foram analisados julgados que guardam pertinência temática com o artigo, para que se chegasse a conclusões em defesa da fundamentalidade do direito em exame e maneiras de dar-lhe efetividade.

FCR: A Foolish Crimes Regulations Act

Frontier Crime Regulation (Act) is an untouched topic ever in the main stream media, curriculum and intellectual discourse of Pakistan. In this paper an effort has been made to bring this issue to the limelight. This paper examines the need, origin, history and the role played by FCR in the history of Tribal Areas. Furthermore, an extensive criticism has been made on the obnoxious provisions of FCR. The concept of no Appeal, Wakeel and Daleel has been critically investigated in the light of independent judicial system. In addition, this paper assesses the violation of Constitution of Pakistan with reference to FCR. It outlines how the basic fundamental rights have been denied to citizens of FATA and how provisions of Constitution redressing the fundamental rights have been violated. Moreover, legality of FCR has been critically evaluated in the view of judicial rulings and case laws. At the end recommendation has been made to abolish this law and merge FATA into KPK. FCR is an important issue, it violates the basic fundamental rights of its subjects. Today, an intellectual discourse is compulsory to redress this issue.

Article 16 of the Indian Constitution: Overcoming Past Discriminations

Aristotle opines: “Injustice arises when equals are treated unequally and also when unequals are treated equally”. The essence of equality percolates the Constitution of India, as the main aim was to create a democratic society wherein justice in all forms such as social, economic and political justice prevailed, along with the equality in status and opportunities. Affirmative action aims to promote societal equality through preferential treatment of socio - economically disadvantaged people. Right to Equality is one of the basic Fundamental Rights that the Constitution of India guarantees to all the citizens of the country. The Constitution accords Article 16, which deals with the Equality of Opportunity in the matters of public employment, which commands wide allegiance among the members of contemporary services. This paper examines pertinence of affirmative action, including arguments for and against; presents John Rawls’ theory of justice, and proposes a framework using Rawls’ theory for future affirmative action. This paper addresses and examines the issues in relation to equality of opportunities in public employment and also the International perspective on affirmative action. While assessing the opportunities in public employment under Indian Constitution, the following issues arise and dealt with: Are Articles 14 and 16 supplementary to each other?; Is reservation in public employment an exclusive discretion of the State or an enforceable constitutional right?; Quotas hurt efficiency?; Why so few women workers in India among many?; If there is equal opportunity in matters of public employment then why transgender are still excluded? This paper concludes that affirmative action, when targeted towards individuals who are denied equality of opportunity and have lower social mobility, will help create a more just society and also analyses the adoption of the schemes of reservation through landmark judgments.

Women's Human Rights Platform

The women in India very often have to face discrimination, injustice and dishonour. Though women in India have been given more rights as compared to men, even then the condition of women in India is miserable. The paper will throw light on the human rights of women in India and that how all the fundamental rights given to the women are being violated in India, by focusing on the various crimes done against them. An Indian woman uses the rights in some manner or limited area. All above rights has given to human beings like women or men but in reality there is a lack of equality to the women in modern time, women also in the second positions in the society. In any society of the world there should be the necessity of equality men and women. They are related with each other but, in fact this had not happen in the society. Though, Human Rights are the minimum rights which are compulsorily obtainable by every individual as he/she is a member of human society. But it has been found that each and every right of the women is being violated in one or another way. The crimes against women in India are increasing at a very fast pace. The National Crime Records Bureau (NCRB) had predicted that growth rate of crime against women would be higher than the population growth by 2010, which was found to be true. There are many traditions in Indian society and it rejects to human rights. In our country the birth of women or girl known as a curse, therefore the problem of girl abortion is arises. The common people should be aware of their basic Fundamental Rights and to be informed about various laws regarding these problems. In such times of strife and social conflicts, Human Rights professionals should emerge as bacon of hope to the helpless women victims of oppression. Educating the women in this regard must be the aim to liberate the women. More and more legislations for empowerment of women are to be implemented. So that every time we liberate a woman, we liberate a man.

Victims of Human Trafficking: A Human Rights Perspective

The major focus of the article is the status and conditions of the victims of human trafficking and their rights and needs. Human trafficking, as we all know, is one of the most serious crimes in the world. It is a crime against humanity and involves violation of human rights, human dignity and exploitation of human beings. Human Trafficking is a transnational organized crime and is a form of modern day slavery. The persons who have been victim of human trafficking have been deprived of their basic fundamental rights, that is, their human rights. The exploitation takes place mostly with women and children. This exploitation of the victims include sexual abuse, physical abuse, psychological trauma due to severe cruel acts being done towards them, use of force or coercion, forcing them to indulge into sexual activities and forced prostitution, taking away their identity documents in the country of destination, giving them inhumane treatment, depriving them of their basic human rights to live with dignity, etc.The author, in this article, describes the characteristics of the victims of human trafficking and also highlights the major risk factors of the adult as well as children which make them vulnerable to human trafficking. Further, the article, describes the basic and major needs of the victims of human trafficking distinguishing between the needs of the international and domestic victims. The article also highlights on the methods for identification of these victims of trafficking which are mainly carried out with the help of law enforcement officers, health care or medical professionals, social workers, NGOs etc. It also gives an estimation of the number of victims being trafficked and the profit earned due to trafficking by the perpetrators. Furthermore, the author, in this article discusses the Intensive Case Management approach which is taken up by many professionals to deal with the victims of trafficking effectively and support and provide them with their basic needs. The author, in this article, also highlights and emphasizes the rights of the victims of trafficking which is provided by the Trafficking in Persons protocol and concludes with the different laws, conventions and protocols enforced by the International community in effectively dealing with these victims of human trafficking which have been enforced with a victim-centred approach.