Exercise Of Fundamental Rights Research Articles

Water as a European shared public good: The legal status of a vital resource, and its sui generis community property regime

Water is generally indicated as a public good that is essential for life. Within the Union water law, this emphatic qualification appears as a generic political declaration linked to the uncertain recognition of the right to water. By analysing the common private and public interests, this study argues that the restricted territorial sovereignty's theory, widely accepted for transboundary water resources, should be applied to all water resources. Water would be a shared European public good, subject to a sui generis community of property regime limiting the sovereignty of Member States over their water resources. By investigating the coherence of this community of property regime with the principle of neutrality enshrined in Article 345 TFEU, the essay suggests that the regulation of the water services would be drawn into the scope of the Treaties because of their instrumental nature in guaranteeing the exercise of fundamental rights, the social cohesion of the Union and the protection of a common public good. The idea is put forward that water services would be an emblematic case of European public services, understood as a specific development of the concept of service of general economic interest, instrumental to the implementation of the European model of society.

La cita previa y el derecho al plazo

Once the critical phases of COVID-19 pandemic have been overcome, most of the containment measures adopted have declined, except for those that involve improvements in work organization. This is the case of the obligation to make an appointment prior to go personally to any administrative office, in order to avoid risks of overcrowding. However, although this procedure affects the relations of citizens with public institutions as well as essential aspects in the exercise of fundamental rights, it lacks a specific regulation to solve its inclusion within the course of administrative procedures. This paper shows the problems raised by this regulatory vacuum and the evolution of court decisions on this matter.

Big Tech Platforms, Democracy and the Law: Global Problems, Legal Perspectives and the Mexican Experience

How do Big Tech platforms affect the exercise of fundamental rights? What can the States do, in the context of their sovereignty, to moderate these actors’ powers? What has been explored in the context of Mexico? This article discusses how Big Tech platforms, such as Facebook and Google, may impact our collective lives and democracy. It highlights the legal implications of access to information and freedom of expression. This research provides an overall legal framework on this issue, to later place in context the Mexican draft bill introduced in 2021 to regulate platforms’ content moderation practices, analyzing its flaws and areas of improvement, and suggesting specific elements for further legal discussion to prevent abuse of power from these companies within the Latin American and Mexican context. A comparative legal methodology is used, resorting to elements of American and European Law, to later discuss the Mexican legal framework.

Mandatory vaccination requirements and the green Covid-19 certificate: a fundamental rights perspective in Italy

Since the Covid-19 pandemic outbreak in March 2020, governments worldwide have resorted to various measures to manage and contain the spread of the virus. In Italy, for example, severe restrictions on freedom of movement were enforced from the very beginning, and they lasted until the vaccination campaign picked up in Spring 2021. At that point, the executive started to lift the most severe measures progressively, and, at the same time, it began to use other legal instruments. For instance, besides progressively enforcing a compulsory vaccination requirement for some categories of people only, the executive introduced a novelty in the Italian legal system: the Green Covid-19 Certificate (or ‘Green Pass’), which not only became a condition to access venues and make use of services, but it also became a condition for the enjoyment or exercise of fundamental rights, including the rights to education and work. The aim of this paper is to assess the Italian Government’s decisions through the lenses of liberal democratic constitutionalism, reflecting upon the balance that was struck between public health and individual fundamental rights. This kind of assessment is especially important in times of emergency, as they are typically defined by fast-tracked and temporary decisions which may, nevertheless, “inadvertently” become embedded in the constitutional legal order.

Non-Discrimination and Equal Treatment Regarding the Exercise of Fundamental Rights and Freedoms by Military Personnel

Abstract The principles of equality and non-discrimination are the foundation of the system of protection of human rights, enshrined in every domestic and international instrument. As a visible symbol of national unity for the achievement of defence and security prerogatives, the armed forces can act as a positive force. By successfully implementing inclusive models and integrating recommendations on the fundamental rights and freedoms of military personnel, the armed forces must ensure societal linguistic, cultural, ethnic and gender-specific respect. In this way, the armed forces achieve group cohesion and achieve the common goal of achieving national defence.

Practical Issues of Medical Experts in Assessing Persons With Mental Illness Asking for Assisted Dying in Switzerland.

With about 65,000 deaths per year in Switzerland, about 1,000 assisted suicides of Swiss citizens are carried out with the help of assisted dying organizations per year. Assisted suicide, which is carried out without selfish motives on the side of the helping person, only remains unpunished if there is a free will decision by the person willing to die who has the capacity of judgement and to act independently. While this is usually accepted as an option for somatically terminally ill patients in society at large, this procedure is controversial for psychiatrically ill patients. In Switzerland the topic of assisted dying is highly debated between medical professionals. In 2018, the Swiss Academy of Medical Sciences (SAMS) put revised guidelines into force, which are in discrepancy to the current rules of the Swiss Medical Association (FMH). This article gives an overview of the past and current development of the Code of Professional Conduct and medical-ethical guidelines as well as current Swiss criminal and medical law on this topic. Practical implications for the assessment of assessing persons with mental illness in this circumstances are discussed. It is to be concluded, that persons with a mental illness seem to face extra obstacles in relation with somatically ill persons as the assessment of the prerequisites comprises additional requirements. Among other issues there is an urgent need for the elaboration of contents to be assessed and standards of procedures. The procedures and guidelines to be elaborated should be scientifically accompanied in order to gain a more reliable basis for decision-making. Multidisciplinary assessments would help to avoid biases and blind spots of a mono-disciplinary assessments. In addition, even in the case of mentally ill people, their right to self-determined suicide should not be restricted by excessive hurdles in the assessment process. Lastly, reliable funding should be secured, as it is otherwise to be expected that the complex assessment of prerequisites through multi-professional-teams or just one assessor cannot be sustained. The exercise of fundamental rights must be possible for all persons to the same extent, regardless of their financial resources.

The Use of Fundamental Rights as Active And Responsible Citizens: Tendencies of Social Studies Teacher Candidates

This study aimed to determine the tendencies of social studies teacher candidates, whose primary purpose is to raise active and responsible citizens, towards the use of fundamental rights. The study adopted a survey methodology and reached a total of 356 students studying in the Social Studies Teacher Education undergraduate program at 7 universities in different regions of Turkey. The data collected from these students with a Likert-type survey of ten dimensions, consisting of 48 items and five options, were analyzed using the SPSS 22.0 package program. Data was analyzed using descriptive statistics, t-test and ANOVA. The analysis of the collected data showed that the scores obtained from the sub-factors of the survey, access to court and exercising consumer rights, differed significantly in favor of women, and conscious citizenship and taking responsibility differed significantly in favor of men. While none of the scores obtained from all sub-dimensions of the survey differed significantly according to the place of residence of the students, the right to petition, the right to lockout, the right to access court and conscious citizenship and taking responsibility differed according to the undergraduate class level. The overall assessment of the results is that the tendencies towards the exercise of fundamental rights do not differ significantly by students’ gender, class level and place of residence, and the overall tendencies in exercising these rights are above average, but not very high.

Under the Law: Gary B., Espinoza, and the fight for school funding

A pair of recent federal court decisions could have profound consequences for school funding across the country. In the first, Gary B. v. Whitmer, the Sixth U.S. Circuit Court of Appeals ruled in favor of seven Detroit, Michigan, public school students who argued that their schools were so woefully underfunded as to deny them the opportunity to become fully literate, which is essential to the exercise of fundamental rights under the U.S. Constitution. In the second, Espinoza v. Montana Department of Revenue, the U.S. Supreme Court ruled that Montana could not block parents from using the state’s education tax-credit program to pay for tuition at private religious schools.

Juridical Aspects Regarding the Exceptional Measures Imposed during the State of Emergency

Abstract According to art. 20 of the Emergency Ordinance no. 1/1999 of the Romanian Government, the state of emergency imposes “non-military measures of public order and it is instituted in case of special threats to the national security or to the functioning of the constitutional democracy, as well as in the case of different disasters”. The requirement to implement economic, social or political measures in the case of the state of emergency is directly dependent on the progressive nature of the danger. During the state of emergency, the exercise of fundamental rights and freedoms may be restricted and important responsibilities of the public administration authorities are subordinated to the competence of the public order authorities, specified in the decree establishing the state of emergency. The spread of the SARS-CoV2 coronavirus, in the international context of the declaration of the pandemic by the World Health Organization, led to the adoption by the Decree of the President of Romania no. 195 of March 16, 2020 on the establishment of the state of emergency on the territory of Romania, which had important consequences in terms of restriction on the exercise of fundamental rights and freedoms.

Between the Suspension of the Exercise of Fundamental Rights and Freedoms and Restriction of Them: Judicial Review of Approved State of Emergency Decrees Having the Force of Law

1982 Anayasasının 148. maddesinin birinci fıkrası, Olağanüstü Hallerde (OHAL) çıkarılan Kanun Hükmünde Kararnamelerinin (KHK) şekil ve esas bakımından Anayasaya aykırılığı iddiasıyla Anayasa Mahkemesinde dava açılamayacağını düzenlemektedir. Bu hükme rağmen Anayasa Mahkemesi, 1991 yılından itibaren OHAL KHK’larının Anayasaya uygunluğunun yargısal denetimini yapmıştır. 15 Temmuz 2016 sonrası ilan edilen OHAL süresince çıkarılan OHAL KHK’larının iptali istemiyle açılan davalarda ise Mahkeme, içtihadını değiştirerek, açılan iptal davalarını yetkisizlik nedeniyle esasa girmeksizin reddetmiştir. Anayasallık denetimi yapılamayan OHAL KHK’larının tamamı Türkiye Büyük Millet Meclisince (TBMM) kanunlaşmak suretiyle onaylanmış ve bunların iptali talebiyle tekrar dava açılmıştır. Bu makalede Anayasa Mahkemesi içtihadında henüz örneği olmayan bu denetimin nasıl yapılabileceği araştırılmaktadır.

Restrângerea exercițiului drepturilor și libertăților fundamentale prin decretele instituind sau prelungind starea de urgență sau de asediu și prin ordonanțele militare

The Romanian Constitution authorizes the restriction of the exercise of fundamental rights and freedoms only by law. The decrees of the President of Romania establishing or prolonging the state of emergency or the state of siege and the military ordinances issued during these states represent administrative acts, in addition, their legal force is inferior to that of the law. In implementing the law on the legal regime of the state of siege and the state of emergency, which contains the general legal framework for restricting the exercise of fundamental rights and freedoms, decrees and military ordinances may decide which rights and freedoms and to what extent they may be subject to restriction.

Garantia dos direitos fundamentais através das funções estatais na execução do orçamento público: uma revisão integrativa da produção científica dos últimos dez anos

O artigo se propõe evidenciar os caminhos percorridos, as práticas utilizadas e abordadas pelos pesquisadores quando discorrem/debatem sobre “Orçamento Público e as Funções do Estado na garantia dos Direitos Fundamentais”, buscando responder a seguinte indagação: o modelo orçamentário atual permite o exercício dos Direitos Fundamentais? A partir desse questionamento, realizou-se uma pesquisa qualitativa baseada na revisão bibliográfica da temática nos últimos 10 anos. Os resultados obtidos evidenciam que por muitas vezes os “Direitos Fundamentais” e as “Funções do Estado” são negligenciados, no que se refere à execução orçamentária, devido a diversos fatores, como: discricionariedade, orçamento autorizativo, falta de planejamento e controle nas ações administrativas, necessidade de qualificação no corte de gastos públicos em busca de equilíbrio fiscal, terceirização de funções do Estado e enfraquecimento dos processos participativos de elaboração do orçamento.

Mental Illness, Mental Disability, and the Exercise of Human Rights: Key Differences and Similarities According to Mental Health Administrators and Managers Within Brazil

This qualitative study identified the perception of administrators and managers of the interrelation between mental disability and mental illness. It investigated experiences in which these differences facilitated or impaired the exercise of fundamental rights by persons with mental illness in a city in the state of Sao Paulo, Brazil. From this perspective, it is important to discuss the exercise of human rights in mental health. It is a key issue for social work practitioners and service managers, who are often the frontline responders to individuals with mental illness. Data were collected through semi-structured interviews analyzed through Bardin’s content analysis technique. The following categories resulted from the analysis: clear perception of mental illness and mental disability definition and legislation; situations of fundamental rights fulfillment; and situations of disrespect of fundamental rights. Mental health managers noted the difficulties experienced when those with mental illness attempted to exercise their fundamental rights. Such attempts were often frustrating and fruitless. This situation is caused by the absence or limitation of a special legislation regarding fundamental rights of persons with mental illness in the country. In this context, the legislative power is primarily responsible for developing special acts and including them in general laws, especially considering the contributions of mental health legislation to a life with dignity for persons with mental illness.

The Transformation of Political Crimes and its Impact on the Hungarian Criminal Regulation with Special Regard to the Interwar Period

In the 20th century, the perception and quality of political crimes underwent significant changes, which led to the creation of constitutional law. Act III of 1921 was the first piece of legislation that substantially tightened the scope of crime against the state, but because of precisely defined offences and related judicial practice, it could be avoided that deeds, which essentially fall within the scope of the exercise of fundamental rights, could fall under the Act. The following significant criminal law, which strengthened existing provisions to an extent that provided a good basis for the establishment of a later Communist dictatorship, was brought about by the persistence of Soviet presence following the World War II.

Justice in a time of crisis: the role of European courts as guardians of democracy

Examining some recent examples from the Court of Justice of the European Union case law, this article intends to unravel the direction to which the European courts turn towards in times of crisis. The fiscal restraint and socioeconomic restructuring dictated by considerations of public debt reduction affect the daily lives of European citizens. However, the crisis and the austerity measures framed by Union law follow the new visibility that fundamental rights assumed in the integration process with the entry into force of the Charter of Fundamental Rights of the European Union. Therefore, in accordance to the moto proclaimed by Cunha Rodrigues, the crisis highlights the role of jurists and, in particular, the judges while guardians of democracy – understood as the safe exercise of fundamental rights. This paper therefore considers the transformative potential of the current crisis and its implications on the deepening of citizenship rights in the European Union.

Exercising fundamental rights in punitive conditions: education in Spanish prisons

ABSTRACTStates use confinement in prisons to punish people who break the regulations and laws established in every society. Although prison limits the right to freedom by constraining the convict’s options for self-realisation and social participation, the right to education, like the other rights, remains in force, prevailing at least in, or over and above, the context of prison. This study analyses education from the perspective of human rights and the exercise of fundamental rights in Spanish prisons by studying the legal and regulatory framework and the basic characteristics of educational paths prior to prison. It focuses on a context in which provision of both formal and informal education for women prisoners still shows deficiencies in education and training. The study also evaluates the importance of protecting the right to education in places of punishment, and the influence of education on social reintegration processes. Its goal is to analyse the diverse living conditions of women prisoners, an especially vulnerable group in society from both the socio-educational and the gender perspective. Finally, we recommend that states not only implement a full, high-quality education system in prisons but also ensure professional and contextualised work suitable to the characteristics of those confined to prison.

Rule of Law with Asian Characteristics: cultural insights from the Occupy Central Movement in Hong Kong

This article uses the Occupy Central social movement in Hong Kong as a natural experiment to consider whether Asian culture influences the understanding and exercise of fundamental rights. In an earlier article, the author explored the relationship between Chinese culture and the rule of law as measured by the World Justice Project Rule of Law Index. This article relies on the earlier work but expands the analysis to consider Asian culture while at the same time focusing specifically on the fundamental rights aspect of the rule of law index. This article shows a strong correlation between lower scores for Asian countries on Individualism, as measured by the Hofstede Dimensions of Culture, and scores on fundamental rights, protection for freedom expression, and protection for freedom of association, as measured by the World Justice Project Index. This correlation is reflected by the Occupy Central movement. Although the movement was an exercise in fundamental rights, its purpose was to promote the rights of the community and the protests were carried out in a manner to reduce the impact on community rights When the movement ended, the negative consequences for the community were a significant reason, and the leaders of the movement were ultimately prosecuted for inciting a public nuisance.

Rule of Law with Asian Characteristics: Cultural Insights from the Occupy Central Movement in Hong Kong

This article, which was accepted for publication in the Indonesian Journal of International Law, uses the Occupy Central social movement in Hong Kong as a natural experiment to consider whether Asian culture influences the understanding and exercise of fundamental rights. In an earlier article, the author explored the relationship between Chinese culture and the rule of law as measured by the World Justice Project Rule of Law Index. This article relies on the earlier work, but expands the analysis to consider Asian culture while at the same time focusing specifically on the fundamental rights aspect of the rule of law index. This article shows a strong correlation between lower scores for Asian countries on Individualism, as measured by the Hofstede Dimensions of Culture, and scores on fundamental rights, protection for freedom expression, and protection for freedom of association, as measured by the World Justice Project Index. This correlation is reflected by the Occupy Central movement. Although the movement was an exercise in fundamental rights, its purpose was to promote the rights of the community and the protests were carried out in a manner to reduce the impact on community rights. When the movement ended, the negative consequences for the community were a significant reason, and the leaders of the movement were ultimately prosecuted for inciting a public nuisance.

Protección, limitación y vulneración del ejercicio de derechos fundamentales en la persecución penal

La presente investigación es de carácter hermenéutico y doctrinal, partiendo de la norma y cruzando por los principios y valores que dan sentido a los derechos fundamentales como teleología de los fines, y el ethos de la norma y la doctrina como el deber ser de la norma. Para ello, se plantea que el Estado conserva el monopolio de administrar justicia en lo penal, y el proceso penal se convierte en escenario adecuado para lograr este cometido, independientemente de la decisión mediante la cual se finiquite. El ejercicio del ius puniendi estatal gira en torno al ejercicio de los derechos fundamentales, principalmente del indiciado, imputado, acusado o condenado, desde tres alternativas. La primera, la protección del ejercicio de los derechos fundamentales como obligación del Estado, frente a la limitación o vulneración. La segunda, la limitación del ejercicio de los derechos fundamentales, siempre que se observen las condiciones y requisitos constitucionales y legales. La tercera, la vulneración del ejercicio de los derechos fundamentales cuando existe intromisión arbitraria e ilegal, que neutralice su ejercicio. Frente a la vulneración del ejercicio de los derechos fundamentales, en la actuación penal, se activan varios mecanismos, dependiendo de cada caso y tipo de vulneración, cuya consecuencia es la sanción procesal desde diferentes puntos de vista y, por consiguiente, el restablecimiento y goce del ejercicio del derecho fundamental vulnerado. Teniendo en cuenta lo anterior, el artículo muestra que en la investigación, juzgamiento y ejecución penal, y en la intervención de la Fiscalía, defensa y víctima tienen límites: el respeto del ejercicio de los derechos fundamentales.

Concentración de medios y derecho a la información en el Perú

The advancement of information and communication technologies is driven to unprecedented dimensions. We can communicate in real time almost from any point of the planet. However, the companies that make it possible are few. Are we facing a mega concentration of global-level media? The right to information, seen as a human and fundamental right, in theory equal for all, but in reality, fully accessible only to those who have free and permanent access to the mass media, or have the influence or power to do what. The social communication media, like those vehicles or channels that make it possible to exercise in a better way, our human right to have an opinion, express our thoughts, communicate  what we want to our fellowmen and receive the information that is of our interest, are holders of a public service, very necessary and linked to the full enjoyment and exercise of fundamental rights. The relationship of both in the current moments, is the subject of this article.