Constitutional Principle Of Equality Research Articles

Uniform Civil Code: A Balancing Act Between Equality and Diversity

This research paper examines the challenges of applying uniform legal frameworks, specifically the Uniform Civil Code (UCC), in culturally and religiously diverse contexts like India. The paper highlights how historical, geographical, and environmental factors have influenced the evolution of religious practices, particularly in personal laws. India’s colonial history, religious diversity, and political influences have shaped distinct legal systems across communities. While International human rights norms emphasize equality and non-discrimination, the implementation of a UCC must account for India's vast cultural landscape. The study underscores the importance of balancing religious freedom with individual rights, especially women’s rights, while exploring the potential conflicts between personal laws and constitutional principles of equality. Case studies such as the Shayara Bano and Shah Bano judgments further illustrate the judiciary’s role in advocating for a UCC. Drawing on international examples like Turkey, the paper explores how a secular legal framework could promote equality while being inclusive of diverse cultural practices.

Evaluation of the Regional Head Age Limit Policy in Indonesia After the Supreme Court Decision Number 23 P / HUM / 2024

This study evaluates the regional head age limit policy in Indonesia following the Supreme Court Decision Number 23 P/HUM/2024 through a normative juridical analysis. The age limit policy, governed by Law No. 10 of 2016, aims to ensure capable leadership by imposing a minimum age requirement for candidates. However, the Supreme Court's decision raises questions about the policy's alignment with constitutional principles of equality, non-discrimination, and democratic participation. The analysis examines statutory regulations, legal principles, and comparative insights from other democratic countries to understand the policy's rationale and implications. Findings highlight the need for a balanced approach that ensures legal consistency and promotes inclusive, effective regional governance. Recommendations include lowering the minimum age requirement, implementing a flexible age range, and incorporating empirical evidence to refine the policy, ensuring it serves the principles of justice, democratic participation, and effective governance.

Legal nature of the principle of legal certainty as a component element of the rule of law

One of the main elements of the rule of law is the principle of legal certainty, which provides, inter alia, that in any dispute, a court decision that has entered into force cannot be called into question. The subject of the most discussed today constitutional principle of legal certainty is today seen as a structural element of the rule of law, necessary for the stabilization of legal relations and systems in which the judiciary and courts play an important role. The principle is the main commandment of the system, its true basis; disposition, which radiates different norms, composing their spirit and serving as a criterion for their precise understanding and reason, precisely because it determines the logic and rationality of the normative system, in that it gives it a tonic and gives it a harmonious meaning. The principle is a constitutional category, and there are several that relate to the process. The purpose of this article is to highlight the need to adhere to the principle of legal certainty in various aspects of foundation and understanding that cover a modern topic, starting with the undeniable theoretical and conceptual evolution of its basis and evaluative nature, which, in a more complex and complex form, years has meant a kind of set of content and conditions that are interrelated for the regulation of life between individuals and state institutions, which is a guarantee of the stability of law. The case is relevant because of the complexity of the relations prevailing in the postmodern world, with undeniable insecurity and unpredictability today, especially in the political, social, economic and legal spheres, the reflexes of which in law are even more obvious. From the constitutional principles of equality and justice follows the requirement of certainty, clarity and unambiguity of the legal norm, as otherwise can not ensure its uniform application, does not preclude unlimited interpretation in law enforcement practice and inevitably leads to arbitrariness. Legal certainty is becoming an increasingly important and significant factor in law-making and law enforcement processes. Numerous decisions of the European Court of Human Rights against Ukraine, which have a direct indication of non-compliance by the state with this principle, allow us to qualify the commented legal idea as a fundamental and independent phenomenon. Legal certainty, as it follows from the texts and interpretations of judges, means clarity, certainty and accessibility of the legal standard.

The Protection of Displaced Persons from Ukraine in Portugal

Abstract The war in Ukraine has caused a massive influx of people seeking protection in the European Union and has led to the activation, for the first time, of the Temporary Protection Directive. Although this influx mainly affects neighbouring countries, such as Poland and Romania, Portugal triggered, as early as 1 March 2022, the national temporary protection regime, thus granting immediate protection to people who were arriving because of the war. This article analyses this temporary protection regime, as well as the measures adopted to allow the rapid integration of those displaced persons, such as simplifying the recognition of professional qualifications, essential for their access to the labour market. Being special measures that only benefit citizens affected by the war in Ukraine, their compatibility with the constitutional principle of equality is questioned, as other foreigners equally affected by war and violation of human rights are excluded.

Konstytucyjna zasada równości w kontekście przepisów abolicyjnych w ustawie Polski Ład

The article was devoted to the institution of transitional lump-sum income tax introduced by the act on the so-called Polish Deal (Polski Ład). As demonstrated, it actually meets the criteria of tax amnesty and at the same time raises serious doubts as to its compliance with the constitutional principles of equality (Article 32 of the Constitution of the Republic of Poland) and universality of taxation (Article 84 of the Constitution of the Republic of Poland). The publication presents the tax amnesty institution itself, its essence and historical outline as well as the normative construction of transitional lump-sum income tax. The compliance of the provisions normalising the institution of the transitional lump-sum income tax was also analysed along with the indicated provisions of the fundamental law.

PRINCIPLE OF (NON) CUMULATION, THAT IS, ABOUT THE CONFLUENCE OF THE RIGHT TO A RETIREMENT PENSION FROM THE GENERAL AND MILITARY SYSTEMS

Professional soldiers have their own social security system, separate from the general social insurance system, which provides social protection in the event of long service, total incapacity to serve and the death of the breadwinner (pension benefits). At the same time, a professional soldier can accumulate and receive two pensions from different systems, ie universal and reserve. However, the principle of accumulation of benefits based on the applicable provision is dedicated to a narrow group of entitled persons. The principle of non-cumulation is considered to be the basic and dominant one. It is an expression of the principle of risk solidarity in force in social insurance law and is not inconsistent with the constitutional principle of equality expressed in Art. 32 of the Polish Constitution. In the event of the overlapping of the right to several benefits specified in the Act, the pension authority is obliged to pay only one (higher) benefit, even if this right results from various acts, and the possibility of combining benefits must be clearly indicated in the provisions of law. Separation of the insurance and supply system allows each of these systems to fulfill separate obligations towards professional soldiers, not related to the general system. Maintaining the principle that for the same period of retirement pension insurance, two retirement benefits cannot be awarded simultaneously (Article 5 (2a) (2a) of the Pension Act). The exception to the principle of non-accumulation (ie the principle of collecting one benefit) in the case of a professional soldier remaining in service before January 2, 1999 is not determined by the date of admission to service, but the lack of the possibility to calculate the military pension taking into account the “civil” retirement age. The convergence of the right to benefits (from the general and military pension) with the parallel occurrence of these events is contrary to the constitutional principle of social justice. It is not socially just to deprive an insured person who has met the statutory requirements of the right to benefits solely on the basis of social solidarity. In such situations, a significant part of the retiree’s professional life is not reflected in the amount of received retirement benefits.

Issues of implementation of equality of arms principle in case of declaring the applied law unconstitutional

The Article considers the issue of ensuring the constitutional principle of equality of litigants before the law and the court during review of the judgement in view of the exceptional circumstances after consideration of the case by the Constitutional Court. Based on the study of legal nature of such consequences of nullity of the law as pro futuro, ex nunc, ex tunc, the risks of violation of the constitutional right of a person to judicial protection shall be established. The aim of the Article is to detect the objective demonstration of the constitutional principle of equality of litigants before the law and the court. The methods of the study: system, dialectical, integrative, interdisciplinary and scientific methods applied to detect the interrelation between the constitutional principle of equality of arms and its practical demonstration in litigation process. The main results of the study. Two components affecting the efficiency of protection of such right have been established: future effect of the judgement of the Constitutional Court of Ukraine and impossibility to consider the application in view of exceptional circumstances if before appeal to the Constitutional Court of Ukraine a person’s claim was dismissed in full under the applicable laws and was further declared unconstitutional by the Constitutional Court. The erroneous legal position of the supreme court in the system of the judiciary of Ukraine was proved in terms of the impossibility of initiating proceeding in exceptional circumstances after delivery of the judgement of the Constitutional Court of Ukraine due to the fact that the person’s claim had previously been dismissed and such a judgement does not provide for its enforcement. This conclusion deprives a person of the right to a final trial at the national level in accordance with the procedure of applying to the court (Articles 8, 24, 55, paragraph 1 Part 2 of Article 129 of the Constitution of Ukraine). It is proposed to develop a special law establishing the grounds and procedure for compensation by the state of moral and financial damages caused by the law recognized as the unconstitutional one.

(RE)CONSTITUINDO A RELAÇÃO PROCESSUAL CIVIL: CONTRIBUIÇÕES EPISTÊMICAS DESDE A COSMOVISÃO INDÍGENA: (RE)COMPOSING THE CIVIL PROCESSUAL RELATIONSHIP: EPISTEMIC CONTRIBUTIONS SINCE THE INDIGENOUS COSMOVISION

It aimed to adopt Equality as an epistemological fundament, to verify in what extent this impacts the construction of the civil processual relationship. The hypothesis is that the traditional relation reproduces the colonization project. The data was collected by the bibliographical research, adopting decolonial thought as theoretical framework. The research is structured in three chapters, besides the introduction and conclusion. The specific objectives are: a) to identify the epistemic effects produced by territorial colonization in the field of the law; b) analyze the epistemic construction of the Brazilian civil procedural relationship and verify if there is a reproduction of the colonization project; c) by the limits of the construction of the procedural relationship and the Principle of Processual Isonomy, to re-signify the concept of equality from the margins, through the hermeneutic opening existing in the Constitutional Principle of Equality; d) adopt this peripheral equality as an epistemic basis and verify to what extent this modifies the construction of the relationship between judge and parties in the Civil Process. As a result, it was built a new epistemic construction, where there is a meeting point between de the judge and the parties, where equality means coexistence and not exclusion or assimilation of difference, moving away from the isolationist idea in the construction of legal knowledge. Instead of the subalternization of the different ways of understanding the Law, this place seeks its praise, starting from the idea that other visions, beyond State’s Law, contribute and enrich the decision that will be proclaimed.

Islamic Theological Studies at the University of Vienna

This paper deals with the legal basis for establishing Islamic theological studies at the University of Vienna and the corresponding conflict of norms between academic freedom and the right to (religious) self-determination. The author’s central claim is that the relevant legal provision is in accordance with neither the constitutional principle of equality nor the constitutional guarantees on the status of legally recognised churches and religious societies. The study begins with a comparison between the legal situations in Germany and Austria on Islamic theological studies. This is followed by a discussion of § 24 of the Islam Act of 2015, the main legal basis for Islamic theological studies, and a comparison with the legal status of Evangelical theological studies. Finally, the paper examines the role of the Islamic Community in Austria in the appointment of teaching personnel and its self-definition, based on its teachings, tradition and constitution.

Bankruptcy immunity and the constitutional principle of equality of rights and freedoms

Bankruptcy immunity and the constitutional principle of equality of rights and freedoms

Ocena skutków prawnych regulacji poselskiego projektu ustawy o zmianie ustawy – Kodeks pracy

The suggested amendment to the Labour Code aims to introduce a provision obliging employers to include periods of non-agricultural activity in the periods on which employee benefits or rights depend. The provision is to be placed in the chapter declaring fundamental principles of labour law. The author states that there is no systemic justification for including this type of norm among the basic principles of labour law, without taking into account the currently used differentiation of the position of employees in specific situations. In her opinion, the proposed regulation raises doubts from the perspective of the constitutional principle of equality, especially in the context of adequacy and proportionality to the assumed goal.

Fruição de direitos sociais por estrangeiros à luz do princípio da igualdade: estudo do caso dos venezuelanos

Este artigo trata do gozo dos direitos fundamentais sociais pelos estrangeiros, mais especificamente pelos venezuelanos à luz do princípio constitucional na igualdade. A partir daí, considerando o aumento do fluxo de fronteiriços da Venezuela nos últimos cinco anos na condição de imigrante ou refugiado de forma definitiva, tornou-se necessário abordar essa temática, pois essas pessoas passaram a utilizar os serviços públicos sociais brasileiros, tem-se por objetivo analisar se a Constituição e as leis brasileiras tratam os estrangeiros de maneira igualitária para que eles usufruam dos mesmos direitos sociais que os nacionais brasileiros. A abordagem da teoria das “Capabilities” de Amartya Sen foi exposta e estabeleceu-se sua relação com a imigração venezuelana. Desse modo, por meio do método dedutivo, qualitativo e bibliográfico, concluiu-se que os venezuelanos, de acordo com o princípio da igualdade, têm pleno direito de usufruir dos mesmos direitos sociais que os nacionais brasileiros.

Powerful Private Players in the Digital Economy: Between Private Law Freedoms and the Constitutional Principle of Equality

The digital economy has been driven by countless start-up companies but also by extremely powerful players such as Facebook, Twitter, Google, Amazon, or Paypal. They have not only accumulated a significant if not dominant position in their relevant markets but they have also gained enormous relevance for the economic and social relationships of individual citizens or consumers, and even traders and politicians. At the same time, citizens are at risk of being denied access to their services, or of having to pay individualized prices, due to their personal circumstances or their shopping or credit history. This article shows that traditional concepts of contract law and also data protection law offer little help to these citizens. It therefore explores the application of the fundamental right to equality to powerful digital players and the legal consequences of such application, including the right not to be subjected to arbitrariness and the right to be given reasons for decisions.

Coisa julgada "erga omnes" em ação civil pública frente ao principio da igualdade e suas consequências no Direito Previdenciário

O presente artigo analisa ??o princípio constitucional da igualdade e a interpretação trazida pela Ação Civil Pública (ACP) nº 2009.71.00.004103-4-RS. Também visa identificar se existe privilégio em relação à região Sul sobre as demais regiões do Brasil. Para tanto, procedeu-se à pesquisa bibliográfica e coleta de dados na Constituição da República Federativa do Brasil de 1988, Instruções Normativas, Leis, Jurisprudências, Doutrinas e na ACP em questão. Ao final, inferiu-se que a restrição dos efeitos “Erga Omnes” da decisão judicial limitada a competência territorial do Tribunal prolator da decisão, embora investida de legalidade, geram efeitos colaterais no direito difuso e coletivo, e no presente caso feriu dispositivo Constitucional sensível, o que permite concluir que a restrição dos efeitos “Erga Omnes” da referida ACP em matéria previdenciária fere diretamente o Princípio da Igualdade, tanto no aspecto formal quanto material.

The Concept of “Workplace” under the Polish Civil Procedure Code as a Place of Service of Civil Case Pleadings/Court Papers on a Natural Person. Remarks on the Law as It Stands and as It should Stand

The correctness and effectiveness of service of documents in civil procedure depends on a number of requirements, which also include a correctly defined place of delivery. Pursuant to Art. 135, para. 1 of the Polish Code of Civil Procedure (CCP), the service of procedural documents in civil cases on the addressee who is a natural person shall be effected at the place of addressee’s residence, work or where the addressee is found in person. The deliberations on this institution presented herein lead to the conclusion that this term is both autonomous and vague, because after the once the wording of Art. 126, para. 2 CCP was changed by the amendment of 2 July 2004, it has lost the value of addressee’s identification. The introduction of an appropriate statutory provision to define this place as the place of service of a pleading/court paper could raise doubts as to the compliance of such a regulation with the constitutional principle of equality, of the parties to civil proceedings before the law (Art. 32 of the Constitution of the Republic of Poland). As part of a proposal for the law as it should stand, it is worth considering to preserve the requirement of specification of the workplace as the place for the service of the pleading/court paper, since the adjudication authority does not know ex officio the occupation and workplace of the party concerned, and the party itself is not obliged to specify such address in the pleading. The admissibility of imposing on the adjudicating authority an obligation to determine the place of residence of the addressee of a pleading should also be excluded. On the other hand, it would be a more appropriate solution to introduce an obligation for a procedural party to precisely specify the address for service in the contents of the first pleading filed, otherwise subsequent pleadings will remain in the case file with the effect as if actually served. It should also be considered to introduce a specific notion grid for the purposes of document service, which would ensure the effectiveness of such delivery by means of widely defined designations of the proper place of service. The carelessness and inconsistency of the legislature in the use of vague concepts with different scopes of application does not contribute to the precise determination of the place of service.

Przyszłość użytkowania wieczystego w świetle regulacji umożliwiających nabycie własności

Przedmiotem niniejszego artykułu jest analiza polskich regulacji prawnych, które umożliwiają przekształcenie prawa użytkowania wieczystego w prawo własności. W obecnym stanie prawnym istnieją trzy możliwości nabycia przez użytkowników wieczystych prawa własności nieruchomości: poprzez wykorzystanie metody cywilnoprawnej, metody administracyjnoprawnej bądź z mocy prawa (ex lege). Porównanie i analiza obecnie obowiązujących regulacji umożliwiających użytkownikom wieczystym nabycie prawa własności nieruchomości pozwala wskazać, że są to rozwiązania trudne do zastosowania w praktyce oraz nierealizujące w pełni konstytucyjnej zasady równości. Z tego względu obecne regulacje wydają się niewystarczające i wymagają zmiany. Jednym z możliwych rozwiązań jest kompleksowe przekształcenie prawa użytkowania wieczystego z mocy prawa, które uwzględniłoby wszystkich użytkowników wieczystych oraz nieruchomości oddane w użytkowanie wieczyste. Tego rodzaju przekształcenie byłoby odpowiedzią na obecny stopniowy spadek znaczenia użytkowania wieczystego.

An Interjection from an Equality Rights Perspective

Usually, constitutional principles of equality are referred to either as “general” or as “special” principles. This dual classification, however, does not precisely reflect the differences among the diversity of aforementioned principles. It is therefore advisable to replace said dual classification by a categorisation based on the characteristics “(in)dependency on a link to a suspect attribute” – Anknüpfungs(un)abhängigkeit – and “thematic narrowness (wideness)” – sachliche (Un-)Begrenztheit – of principles of equality. Furthermore, the so-called “illicit equal treatment” should not be accepted as a doctrinal category in non-discrimination law.

Procedural entitlements of the person providing the work with pay on other base than the employment

After the amendment of the Trade Unions Act, the procedural situation of persons providing paid work on a different basis than the employment relationship should be analyzed. From the point of view of the constitutional principle of equality, the procedural position of an employee and a person providing providing paid work on a basis other than the employment relationship can not be differentiated. Therefore, for these entities shall use the same procedural provisions. De lege ferenda the legislator should make a clear reference to the provisions of the Labor Code.

Gender problems in newborns: social, medical and legal aspects

Objective of the study. To analyze the modern literature on the legal regulation of the determination of the sex of newborns with disturbances of sexual development in Russia and abroad, as well as the right of these children for self-determination of their sex upon coming of age. Material and methods. The review is based on the domestic and foreign literature published overthe past 7 years, including in Pubmed. Results. There were revealed the modern problems of the legal regulation of determining the sex of newborns with developmental disorders in the territory of the Russian Federation. Conclusion. The right to the sex self-determination of the children born with impaired sexual development upon coming of age requires careful analysis by medical experts, as from a legal point of view it contributes to a more complete implementation of the constitutional principle of equality regardless of gender and ensures human rights in accordance with their perception and attitude.

Запрет дискриминации по признаку «отношение к религии» – гарантия реализации конституционного принципа равенства прав и свобод человека и гражданина независимо от отношения к религии в Российской Федерации

Запрет дискриминации по признаку «отношение к религии» – гарантия реализации конституционного принципа равенства прав и свобод человека и гражданина независимо от отношения к религии в Российской Федерации