Effective Legal Protection Research Articles

Effectiveness of Legal Protection for Whistleblowers in Corruption Cases in Indonesia

Combating corruption is a crucial priority for Indonesia, which strives to improve the quality of governance and institutional integrity. Whistleblowers play a vital role in uncovering corrupt practices, often serving as the initial source of information that reveals systemic and organized corruption. However, whistleblowers face significant risks, including intimidation and retaliatory actions. Effective legal protection is essential to shield them from these risks and encourage the public to report corruption. This study aims to review the effectiveness of legal protections for whistleblowers under Indonesian legislation and explore measures that can be enhanced to ensure their safety and well-being. Utilizing a literature review method, this research finds that although regulations exist to protect whistleblowers, their implementation remains inadequate. Obstacles such as lack of legal awareness, insufficient resources in law enforcement agencies, and a culture of fear of retaliation hinder optimal protection. Specific legal reforms, increased capacity of law enforcement agencies, and education and cultural changes that support whistleblowers are needed to improve the effectiveness of protection. Strengthening legal protections will better motivate whistleblowers to report corruption, supporting creating a more transparent and accountable government.

Abuse of Authority by Village Head in Cases of Sexual Violence against Women

The government's efforts to combat sexual violence in society are embodied in the Law on the Elimination of Sexual Violence, reflecting the State's responsibility to protect and improve the psychological well-being of victims, whether they have experienced physical or psychological harm. Protection of women in the workplace is crucial, and ensuring their rights is a legal imperative. The prevalence of sexual violence against women in work environments, often driven by power imbalances, highlights the urgent need for effective legal protection. This research aims to examine the influence of power relations on sexual violence crimes committed by regional officials and to identify optimal legal protections for women who are victims of sexual violence. Employing a normative juridical approach, the research finds that while existing laws are generally adequate for addressing sexual violence, their implementation falls short of expectations. Recommendations include enhancing legal protection to be more victim-centered, as current regulations primarily focus on penalizing perpetrators. There is a need for policies that provide comprehensive protection and justice for female victims of sexual violence.

Genomic Data Privacy and the Right to Science: Issues of Balance

The paper examines the confidentiality of genomic data. According to the author, genomic data is a special concept in the field of personal data and requires increased regulatory guarantees of legal protection and safeguards. In addition, the author considers the issue of the grounds for disclosure and use of this type of information. According to the researcher, this is possible only if there is a public interest in conducting scientific research that contributes to the implementation of the health function by the state. The right to science, enshrined in the Universal Declaration of Human Rights of 1948, can serve as a regulatory basis for this. The author notes that this right has not yet been established at the level of national legislation, which significantly complicates its understanding and definition of restrictions in its implementation. The paper also emphasizes the uniqueness of genomic information, which is characterized by features of identifiability and relative danger. These features are specified by the author in terms of the purpose and scope of the use of genetic data, their informational content, as well as the degree of their influence on the rights of the relevant person. In conclusion, the author puts forward am idea of one best way to balance the right to science and genomic data privacy, through which it will be possible to ensure both effective legal protection and a stable course of scientific evolution and progress.

Legal and Psychological Impact of Child Sexual Harassment

Background: Sexual harassment against children in Pekalongan City has escalated, with factors such as diminished parental supervision and shifting moral values contributing to its prevalence. Knowledge Gap: Existing literature primarily explores legal repercussions and short-term psychological impacts, leaving a gap in comprehensive studies on long-term emotional effects and effective legal protection measures. Aims: This study aims to fill these gaps by identifying causative factors, evaluating psychological and emotional impacts over time, and assessing current legal protections. Results: The research highlights that children experiencing sexual abuse face severe psychological conditions like anxiety and depression, along with lasting emotional disturbances such as trauma and emotional dysregulation. Legal efforts are currently centered on reactive measures rather than preventative strategies. Novelty: This study is novel in its longitudinal analysis of emotional impacts and its critique of legal frameworks in place, suggesting improvements for future protective measures. Implications: The findings advocate for enhanced legal frameworks that focus not only on punitive measures but also on preventive and rehabilitative strategies to better protect children and foster resilience against the psychological and emotional scars of abuse. Highlights: Causative Factors: Key contributors include decreased parental supervision and shifting societal values. Long-term Impacts: Highlights severe psychological effects like depression and trauma. Legal Frameworks: Stresses the need for improved preventive and rehabilitative legal measures. Keywords: Children, Sexual Abuse, Legal Protection

Excepción de inconvencionalidad en las actuaciones públicas del Estado colombiano

Within the framework of the boundaries to the exercise of “ius puniendi” as legitimate measures to keep at bay disproportionate use of police powers, as enshrined in the rule of law, a normative supranational boundary has emerged to safeguard citizens’ fundamental rights. Such boundaries are subject to international (positive & negative) obligations that States parties must abide by once ratified. In order to categorize systematically the exception of unconventionality for more sustainable legal proceedings, a hermeneutical historical-analysis was done of case-by-case examinations to determine its reach in internal normative systems. This is a sample of supralegal guarantee that allows us to set some modulating criteria in the application of rules in compliance by deploying the same conditions of the constitutionality block. Specifically, when a high-court has adopted a line of jurisprudence with the effect of absolute constitutional res judicata, it becomes impossible for both judges and procedural actors to resort to exception of unconstitutionality in Colombian public proceedings. However, we find the exception of unconventionality as the last guarantee of effective legal protection, even when the constitutionality of human rights violations has been declared, according to the dissenting multilateral precedent of the competent body in regional human rights protection systems.

Locus standi in administrative proceedings concerning environment protection, in the case law of the CJEU and the ECtHR

Effective legal protection against the unlawfulness of administrative acts is essentially achieved if the aggrieved party has some form of legal remedy to enforce his/her rights. This remedy may be at the stage of the administrative procedure, however, in some cases it may achieve its real purpose only through judicial means. The right to a fair hearing is closely linked to the right to remedy, which means the possibility of simultaneously appealing to another body or to a higher forum within the same organization regarding decisions on the merits. An essential element of all remedies is the possibility of remedy, i.e. the remedy conceptually and substantively includes the possibility of reviewing of the violation of law. The aim of the person affected is nothing other than to remedy his or her disadvantage. But who can be affected?

ISSUES OF ECOCIDE DEFINITION IN THE REPUBLIC OF KAZAKHSTAN: COMPARATIVE ANALYSIS WITH THE LEGISLATION OF CENTRAL ASIAN COUNTRIES

Effective legal protection of the environment is one of the main priorities not only for the Republic of Kazakhstan, but also for the whole of Central Asia. The author of the article analyzes the main approaches to the definition of ecocide as one of the most serious offenses committed against the environment and being a threat to national security. At the moment, the issue of environmental security is more relevant than ever and is on the agenda of all countries in the region. It is also closely intertwined with the realization of the right to live in a favorable environment. Corresponding or similar norms exist in the legislation of all Central Asian countries, which makes it possible to conduct a comparative legal analysis to identify differences in the approach to the very definition of ecocide and its place in the criminal law of the countries of the region. The author reviewed the definitions and provisions of ecocide in the criminal codes of the Republic of Kazakhstan, the Kyrgyz Republic, the Republic of Tajikistan, the Republic of Turkmenistan, and the Republic of Uzbekistan. The results of the analysis indicate that the norm of ecocide in the Criminal Code of the Republic of Kazakhstan has a relatively similar structure to the corresponding criminal codes of the countries of the region, but differs in the different approaches to defining the elements of the crime. It is also worth noting similar norms in the legislation of the Republic of Uzbekistan. In conclusion, the author proposes an approach to the harmonization of relevant norms in the legislation of Central Asian countries to achieve a common understanding and formulate common approaches to the crime, which is a direct threat to the biosphere.

Proof in Dutch Administrative Law

The law of proof and evidence in Dutch administrative law is founded on a theory of free evidence. Over the years, evidential standards have been derived from general principles of sound administration, such as the duty of due care and the duty to give reasons. A flexible system of proof is the result, aptly tailored to the circumstances of the case. This article focuses on the dynamics of the law of proof and evidence in the Netherlands and aims to offer a perspective on future challenges and expected developments. It is argued that evidential norms have become more explicit and precise on the one hand, while at the same time being deformalised. Dutch administrative law courts are increasingly focusing on standards that offer citizens safeguards in fact finding. Evidential norms should increase the quality of fact finding, protect citizens from an over-intrusive administrative state and compensate for an inequality of arms. Over the past few years, courts have worked on effective options for litigants to adduce evidence in appeal. Most recently, the government has published a bill strengthening this evidentiary position by introducing a specific procedural instrument known as the ‘citizen loop’. These developments are bolstered by European case law, which asks for enhanced human rights protection and effective legal protection.

Employer as an AI System Operator and Tortious Liability for Damage Caused by AI Systems: European and US Perspectives

Abstract The article examines if the standard of protecting parties injured by artificial intelligence (AI) systems used by professional operators is high in the European Union (EU) as compared to the USA—that is, whether the liability model of an operator, as applicable in the EU, ensures that injured parties have effective protection. For the purposes of this article, the term ‘effective protection’ should be understood as referring to a liability model guaranteeing to injured parties a real possibility of obtaining due compensation without the burden of proof that a claimant cannot fulfil. The EU legislature has proposed amendments in the area of non-contractual civil liability of AI system users, which also includes professional operators of such systems. An employer using an AI system for professional or commercial purposes and deriving profits from such use qualifies, in a legal sense, as a professional operator of such a system. Therefore, it is worth considering the question whether the EU, compared to the USA, is really in the vanguard when it comes to drafting legislation tailored to the challenges of AI technology and if the currently proposed legislative amendments ensure effective legal protection to persons injured by AI systems used by a professional operator.

Commission v. Poland (Régime disciplinaire des juges);Comment on the judgment of the CJEU of 15/07/2021 (Grand Chamber), case C-791/19

The author presents the situation of legal relations that took place in the period 2015-2023 between Poland and the European Union (EU). The reform of the justice system organized by the ruling party was appealed by the European Commission to the Court of Justice of the EU. The CJEU analyzed and assessed the following fundamental legal issues: failure to fulfill obligations by a Member State, the rule of law, the system of disciplinary liability of judges, judicial independence, effective legal protection in areas covered by EU law, recognition of the content of judicial decisions as disciplinary offenses, compliance with reasonable deadlines, respect for the rights of judges to defense in disciplinary proceedings, the right and obligation of national courts to refer requests to the CJEU for a preliminary ruling. It ruled that the Republic of Poland (RP) had failed to fulfill its obligations towards the European Union (EU). This study concerns case law. The situation created during this period resulted in a significant weakening of the protection of the value of the rule of law within the meaning of the extensive case law of the CJEU presented in this article. According to this body, the Republic of Poland has failed to fulfill the obligations set out in the EU treaties.

Analysis of Public Policy and Criminal Law in The Perspective of Consumer Protection for Online Loan Users in Indonesia

The development of online loan services or pinjol in Indonesia raises new problems in consumer protection. Many cases of fraud and misuse of customer personal data are very concerning. The government has not had specific regulations regarding online loans. The existing regulations are merely appeals and suggestions for fintech pinjol to conduct business responsibly. In fact, stricter regulatory and enforcement steps are needed to address the increasing violations that harm consumers. This study aims to analyze public policies and criminal law in the perspective of protecting pinjol consumers in Indonesia. This research uses a normative legal approach with statute and conceptual approaches. The results are expected to provide recommendations for more effective legal protection for online lending consumers in Indonesia, as well as enriching academic literature on fintech and digital consumer protection. The conclusion is that firmer public policy and criminal law provisions are needed to protect consumer rights in using online loan services which currently have weak legal protection.

PROBLEMS OF ENSURING THE RIGHT TO AN EFFECTIVE REMEDY IN CRIMINAL PROCEEDINGS IN THE COURT OF FIRST INSTANCE

The article is devoted to the study of practical problems of exercising the right to an effective remedy in criminal proceedings in a court of first instance. An analysis of the case law of the European Court of Human Rights has made it possible to state that the right to an effective remedy is enshrined in the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, which in turn obliges the State parties to introduce mechanisms for effective legal protection of human rights and freedoms at the national level. An analysis of the domestic regulatory framework suggests that the ineffectiveness of the right to an effective remedy is due to the failure of the criminal procedure legislation of Ukraine to fulfil one of its main tasks - ensuring due process of law. The absence of proper regulation of the procedure for appealing against decisions, actions or omissions during the preparatory proceedings by the participants of the court proceedings is the main cornerstone that falls apart the entire mechanism for exercising the right to an effective remedy at this stage of the proceedings, as provided for in part 2 of Article 303 of the CPC. Based on the theoretical works of scholars and analysing the doctrinal provisions on the interpretation of the concept of "effective remedy", the author offers her own solution to the identified gaps and shortcomings in the practical implementation of the right to an effective remedy at the stage of preparatory court proceedings and court proceedings on the merits of criminal proceedings. The first way is to regulate at least a certain list of issues which may be subject to appeal at the stage of preparatory court proceedings at the level of law, based on the analysis of case law, scientific developments, the essence of the issues which may be subject to appeal, the consequences and expediency of their resolution at this stage of proceedings, and to leave all other complaints for consideration by the court. The second way is to provide for issues that cannot be appealed at this stage of the proceedings, such as, for example, the issue of appealing against procedural actions that entail inadmissibility of evidence, since this issue will be the subject of consideration in the trial on the merits, and all other complaints filed should be considered without delay. The article also draws attention to the urgent need to address the problem of appealing against the denial of a motion to close criminal proceedings, as this leads to a violation of the rights of the accused, since he or she is unable to effectively defend his or her interests. To solve this problem, it is proposed to amend the legislation, namely: to supplement Article 380 of the CPC of Ukraine with a provision that would allow a separate appeal against the refusal to satisfy the motion to close the criminal proceedings, and to clearly define the terms and procedure for appealing against such a refusal. Keywords: criminal proceedings, court proceedings, remedy, effective protection of rights, protection of rights, human rights, legal protection.

Rządy prawa jako straszak: spory o tzw. mechanizm warunkowości

The rule of law principle is one of the pillars of contemporary liberal democracies. It is also a common value shared by the individual member states and the European Union. A vital element of the rule of law is to ensure access to effective legal protection carried out by independent, impartial and independent courts.Despite nominally existing axiological unity, as well as formally adopted high standards of justice in Poland and the EU, a dispute over the understanding of the rule of law begin in late 2015. The main focus of the conflict has been the profound changes to the Polish judicial system. One of the unveils of the crisis came to light with the work on the EU budget for 2021-2027, complemented by the Next Generation EU recovery programme and conditionality mechanism. The latter allows the EU to take special measures in cases when breaches of the rule of law principles affect or seriously risk affecting the EU budget or the EU’s financial interests. The conflict between the European Union and the Republic of Poland is primarily ideological and politically driven. The discrepancies with regard to the shape, meaning and principles of the third power seem to stem from the adoption of different paradigms –liberal and populist –in approaching the role of the judiciary in a democratic state.

How to create Legal Protection for Debt Collateral in MSMEs in Indonesia

This study examines the legal protection available to debt collateral for Micro, Small, and Medium-Sized Enterprises (MSMEs) in Indonesia that are seeking financing from traditional banks. The study used a mixed methods approach, combining quantitative survey data, regression analysis, and qualitative insights to offer a thorough grasp of the issues and possible solutions. The results show a strong relationship between awareness and the belief in the efficacy of legal protection. Important obstacles included lengthy approval procedures, bureaucratic obstacles, and difficulties with collateralized financing. Policy recommendations for regulatory reform, industry cooperation, and awareness-raising are among the implications. Notwithstanding the cross-sectional design and sample representativeness constraints, this study adds to the development of effective legal protection tactics for MSMEs in Indonesia.

Addressing Multi-Unit Residential Management Conflicts: A Legal Study

This study delves into the legal complexities and challenges arising from the management dualism disputes within the Association of Occupants and Owners of Flat Units (P3SRS) at the Bogor Valley Apartment. The research adopts a normative juridical approach, focusing on the analysis of primary, secondary, and tertiary legal materials through comprehensive library research. Central to this investigation is the exploration of the authority of P3SRS under Article 27 of the Regulation of the Minister of PUPR Number 14 of 2021. The study reveals that the existing dual administrations within the P3SRS lack the legitimate authority to manage the interests of the apartment's owners and residents as stipulated by the regulation. This situation has led to significant legal issues, primarily triggered by the dismissal and replacement of P3SRS management. The research further examines legal protection mechanisms for residents and owners affected by this dualism, highlighting two primary approaches: 'preventive legal protection' through government-led socialization and awareness campaigns, and 'repressive legal protection' as outlined in existing housing laws and regulations. Additionally, the study discusses the role of the independent Notary Honor Council (MKN) in providing legal protection for notaries concerning their civil responsibilities and the creation of legal documents. The findings underscore the necessity for clear regulatory frameworks and effective legal protection strategies to address and mitigate the challenges posed by management dualism in residential unit associations, providing valuable insights for policymakers, legal practitioners, and residents of multi-unit dwellings.Highlights:
 
 The study identifies illegal authority in dual residential management structures, highlighting a lack of legitimate power in handling owner and resident interests.
 It emphasizes the necessity of preventive legal protection, advocating for government-led awareness initiatives to educate communities about residential management laws.
 The research underscores the importance of repressive legal measures, detailing how existing housing regulations provide protection against management conflicts.
 
 Keywords: Residential Management, Legal Dualism, Preventive Protection, Repressive Protection, Regulatory Framework

Legal Protection for Franchisees Due to Unauthorized Franchise Agreements

This study analyzes legal protection for franchisees in unauthorized franchise agreements. The research method involves analysis of legal documents, literature studies, and a normative approach to the relevant legal framework. The results show that the franchisee has the option of cancellation of the contract, compensation, termination of unlawful activities, and recovery of rights that are not respected. Challenges in providing effective legal protection include regulatory weaknesses, cost and time of legal proceedings, and the power imbalance between franchisees and franchisors. This research has implications for increasing awareness, legal protection, and policies that encourage fair and stable business practices in the franchise industry.

Towards an Effective Legal Protection for Older Persons in the 21st Century: A Comparative Study of International Human Rights Law and Arab Constitutions

Background: This study explores legal protections for older people in the 21st century, particularly in the contexts of international human rights laws and Arabic constitutions. While international human rights systems afford implicit protections for senior citizens, the international legal framework is inadequate for addressing their specific rights and challenges. While Arabic constitutions often include general provisions protecting the rights of citizens, they do not explicitly address the rights and legal protection of older people. Methods: This study aims to confront this gap by examining legal frameworks that protect the rights of senior citizens in both international human rights law and Arabic constitutions. Results and Conclusions: The lack of a universally accepted definition for the term ‘older person’ poses a challenge when studying that demographic, as they are a highly heterogeneous group. In a rapidly ageing world, it is essential to develop legal frameworks that specifically address the rights of older people to ensure their dignity and well-being.

Requirements and methods of protection of copyright and related rights: correlation of concepts

This article is dedicated to distinguishing the concepts of «requirement» and «methods of protection». The need to distinguish between these concepts is related to the provision of civil procedural legislation, which contains various procedural consequences regarding the requirements and methods of protection that the plaintiff, through the court, applies to the defendant. It is the plaintiff who must exercise his right when applying to the court to determine his demands against the defendant and choose the way to protect his violated, unrecognized or disputed rights, freedoms or interests. The court has the duty to consider and decide the case exclusively within the limits of the stated requirements. At the same time, under certaincircumstances, the court may apply the method of protection that it considers effective, taking into account the specific circumstances of the case. Effective legal protection of copyright and/or related rights depends on the forms, methods and means ofprotection chosen by the subject of law. It should be taken into account that the requirements are specified in the methods of protection, which in turn are specified in the means of protection — sanctions. At the same time, «requirements», «methods of protection» and «means of protection» are different legal concepts, although they are mutually dependent.
 The existing legal limitation of the court, led to the emergence of such concepts as «improper method of protection» and «ineffective method of protection» in the civil procedural doctrine and law enforcement practice of the court. If the plaintiff chooses an inappropriate method of defense when applying to the court, this becomes the basis for refusing to satisfy the claims, and if the plaintiff chooses an ineffective method of protecting the violated right, it leads to the refusal to satisfy the claims.
 The conducted study of the provisions of material and procedural legislation allows us to talk about the need to make changes to the material legislation in order to clearly regulate the requirements, methods of protection and sanctions for violation of copyrightand/or related rights. In turn, such changes will make it possible to implement the general legal principle of legal certainty, which is a component of the principle ofthe rule of law.

Is there scope for growth? Mapping habitat suitability for Asian elephant (Elephas maximus) across its range in China

Maintenance of sufficient habitat for large terrestrial mammals in increasingly human-dominated landscapes is challenging. Wild Asian elephants in China were historically widespread, but now comprise 293 individuals confined to three prefectures in southwestern Yunnan Province. Effective legal protection has permitted population growth of Chinese elephants, but it is not known why elephants are confined to the southwestern portion of Yunnan, nor has there been a comprehensive assessment of the extent, quality and carrying capacity of habitat within their potential range. We used multiscale multivariable species-distribution modelling to evaluate the effects of topography, land use, transport infrastructure and settlements on habitat suitability for elephants throughout Yunnan during 2012–2021, using data from literature records, field surveys and camera traps. Elephant distribution was strongly influenced by the presence of forest measured at coarse (32-km) scales, with forest fragmentation and percentage cover together accounting for 64% of total variability, whereas settlements and infrastructure had a relatively minor effect (1.7%). Almost 17,430 km2 of habitat, mostly along the border with Myanmar and Lao PDR, was predicted to be highly suitable for elephants, and a smaller amount in two prefectures that currently lack elephants. We estimate that Yunnan could support an additional 810 (range 300–1469) elephants, more than twice the current population. However, 90% of habitat predicted to be suitable was outside currently protected areas. By making conservative predictions about the potential for restoration or enhancement of habitat, we project that Yunnan could sustain a further 305 elephants, bringing the total population to 1408. Our results have relevance for planning of a proposed national park for elephants in the province.

Administrative justice of Germany: development prospects

The article is devoted to the prospects for the development of administrative justice in Germany. On the wave of reforms initiated to a large extent by European law, there were those states in which administrative- legal protection was traditionally aimed primarily at ensuring the integrity of the objective legal order and for a long time did not pay enough attention to the protection of citizens in urgent cases and in case of administrative inaction. In contrast, in Germany, where administrative procedural law is characterized by the concept of subjective legal protection and the right to effective legal protection has been guaranteed at the constitutional level since 1949, the need for change has been negligible.
 The dynamism that has characterized the development of administrative justice in many European states since the 1990s will continue in the coming years and will further change administrative and legal protection. In the Federal Republic of Germany, which is characterized by a paradigm of subjective legal protection, legal protection will be enriched by prosecutorial actions from associations and possibly citizens. This applies primarily to those areas where legal norms for the protection of certain public interests suffer from the structural weakness of law enforcement, which is partly caused by the fact that there is no possibility for individual actions in case of violation of these norms.
 There is a need to fill gaps in legal protection at the European and international levels. It is necessary to pay attention to the elimination of gaps in legal protection not only in the law of the European Union, but also in relation to possible violations of rights by the measures of international organizations. As long as effective legal remedies do not exist there, the European Union and its Member States must offer alternative legal protection, which is also based on universal guarantees of respect for human rights. Alternative conflict resolution mechanisms will continue to be tested. Out-of-court and judicial mediation will become more important. However, given the principle of administrative legality, their scope will remain limited. Serious changes in legal protection may occur due to the adjustment of the ratio between administrative and judicial means of protection. In particular, in the case of decisions on complex technical, economic, social and environmental issues, as well as decisions that must take into account a large number of interests, it may be functionally appropriate to strengthen control at the administrative level.
 Digitization will change not only the internal working processes of the courts, but also the communication between those seeking legal protection and the courts. It can provide greater transparency for all participants in the process, but it can also make access more difficult for those who have difficulties communicating with new media. Therefore, when implementing e-justice, special care should be taken to avoid a digital divide in legal protection. In addition, the digitalization of the judicial system has great potential to support judges in their work, not to replace them.