Fundamental Constitutional Rights Research Articles

Assessing the Perception Index on Right of Education in the Mother Tongue (Pire) for Different National Minorities in Albania

Albanian legislation defines the education of national minorities in their mother tongue as a fundamental constitutional right. The judgment for the realization of this right using PIRE and its indicators evaluated for different national minorities in Albania showed that there are significant differences between them. The Greek, Macedonian, and Armenian minorities perceive the completion of the right to education in the mother tongue qualitatively better than Roma, Serbian, Bulgarian and Egyptian Montenegrin national minorities. Bosnian national minority values the completion of this right at the "Moderate" level. Among the component indicators of the index, citizens perceive legislation, desire and opportunities as the most important. This perception is more pronounced among the Greek, Macedonian, Armenian and Bosnian minorities. Citizens perceive more sensitive effects in the fulfillment of the right to education in the mother tongue generated by the factors: (i) the level of their information about this right and the paths they must follow to fulfill it; (ii) population size of national minority and its distribution in the territory; (iii) the level of use of the mother tongue in family communication; (iv) citizen cooperation and with local government bodies; (v) encouraging private initiatives and (vi) increasing capacities in bilateral and regional cooperation.
 
 Received: 25 February 2024 / Accepted: 21 March 2024 / Published: 23 March 2024

Differentiation of the Competence of the Prosecutor's Office and the Court to Ensure the Legality of Operational Investigative Activities

The relevance of the study is determined by the role and place of the legal institution for the protection of human, civil rights, and freedoms as an attribute of the rule of law, the need for proper control and supervisionof their compliance. The Constitution of the Russian Federation proclaims that a person, his rights and freedoms are the highest value, and the state is obliged to recognize, respect and protect the rights and freedoms of man and citizen, judicial protection is guaranteed to everyone. This implies, on the one hand, that everyone is guaranteed to ensure the implementation of the active right to appeal in court decisions, actions or inactions of public authorities and their officials, and on the other hand, verification of compliance with the passive right, which is mainly implemented through control and supervisory procedures. At the same time, in the process of implementing certain functions of the state (in particular, law enforcement), authorized bodies are allowed to apply measures that significantly limit the fundamental constitutional rights and freedoms of a person. An important place among these types of state activities is occupied by operational investigative activities (OIA). In the field of OIA, citizens are often limited in their ability to independently defend their rights and legitimate interests, and therefore a special role in this area is given to the court and the prosecutor’s office. As part of the study, an attempt was made to comprehensively study the theoretical, legal and practical issues of organizing the activities of the prosecutor and the court to protect human and civil rights, the legitimate interests of legal entities in the production of operational investigations, analyze the relationship between prosecutorial and judicial activities, and develop an organic mechanism for their implementation, excluding «mutual substitution» and duplication of competencies.

Importance of criminalising the practice of stalking in the protection of the right of freedom and privacy in the digital sphere

This article deals with the importance of typifying the practice of persecution known as stalking in Brazil, through Law n. 14.132/2021 for the protection of the right to liberty and privacy. In this way, the objective was to analyze the constitutional protection of the rights of freedom and privacy and how the criminalization of stalking in Brazil impacts on this protection. To achieve this objective, the methodology used for the research was the deductive method and literary review. Because it is a new topic, os its wording in the penal code, the use of periodicals and relevant doctrine became essential. It was concluded that stalking is a crime that violates fundamental constitutional rights, having a great impact on the victim’s freedom and privacy.

탐정의 변호사법 제109조 제1호 위반문제에 관한 연구

This paper is study to improve problem of the principle of clarity, freedom of occupation, basic right to information of Attorney Act Article 109 (1) in relation to the fact-finding work of Private Detective. To this end, we reviewed the relationship between a Private detective's fact-finding work and paid legal work. And The problem of interpretation of ʻʻOther legal workʼʼ and the unconstitutionality of Attorney Act Article 109 (1) were analyzed through related theories, related laws, related precedents, related Constitutional Court decisions, and customary practices. Furthermore, in order to solve the problem of Attorney Act Article 109 (1), improvement measures such as ʻʻExpanding social discussionʼʼ and ʻʻEnactment of the Certified Private Detective Actʼʼ had presented. Bills must be enacted and amended in a way that protects the people's fundamental constitutional rights and does not violate the Constitution. If so, Attorney Act Article 109 (1) must be revised. And the Certified Private Detective Act can be said to be the subject of enactment.

Theoretical and applied problems of in vitro fertilization under the legislation of the Russian Federation and the Republic of Belarus

The article deals with the issues of realization of one of the reproductive rights – the use of in vitro fertilization. The right to have children is one of the fundamental constitutional rights. It is emphasized that the use of IVF is a forced measure for spouses (married couples), since it is not possible to conceive children naturally due to medical indications. The point of view that IVF as a result of biomedical advances is becoming more and more predominant; although to a lesser extent, there are voices that have children is a kind of duty to society. It is generally accepted that IVF should not be used to choose the sex of a child, or any of its physical characteristics. This emphasizes the value of the common good, rather than the priority of an individual subject’s choice. The deliberate choice of the sex of an unborn child is a pathway to pernicious gender imbalance. In the context of the moral status of the human embryo, it is recognized that raising an embryo for more than 14 days and then destroying it is ethically unacceptable. Attention is drawn to the disputes arising in practice concerning the possible use of IVF, including after the dissolution of a marriage. Proposals are made to improve civil and other legislation and law enforcement practice. In particular, to provide that heirs under the will and the law may include citizens conceived in accordance with an agreement between a woman and a man to use his biomaterial for in vitro fertilization within six months after his death and born alive after the opening of the inheritance. Free storage of gametes must be provided to law enforcement officers, professional servicemen and servicemen performing duty in «hot spots», employees of the Ministry of Emergency Situations, etc., provided that they do not yet have children. In other cases, they can be kept for a fee.

Rights-Based Climate Litigation in South Africa and the Netherlands

Abstract Academic research into international climate change litigation has shown that the courts yield significant power in bringing about an awareness of climate impacts as well as firmly entrenching rights and responsibilities for claimants and defendants. In April 2022, the IPCC’s Sixth Assessment Report noted in some detail how climate litigation is shaping climate governance. This article considers these statements within the framework of how courts have drawn on fundamental constitutional rights even without an exclusive reliance on the right to a healthy environment within the jurisdiction of South African climate litigation. The objective of this study is to investigate this claim by analysing the available legal mechanisms in South Africa and what legal strategies have been used in climate litigation to determine how South African climate litigation has shaped climate governance in comparison to climate litigation from the Netherlands. The core analysis examines firstly what the litigation is seeking to achieve, secondly which legal mechanisms and avenues were relied upon and thirdly, how this resonates between different jurisdictions. The key results will contribute to an understanding of the contribution that South African and Dutch climate litigation lends to global climate governance, the extent to which litigation relies on entrenched fundamental rights; it further tracks how, if at all, transnational climate governance litigation has developed in this respect.

The Right to a Life-Sustaining Climate System: Selected Case Law

Abstract This article analyses the legal discourse concerning the right to a life-sustaining climate system. The subject of analysis is the discourse around selected landmark cases in which arguments were raised about the need to protect a stable climate for the sake of protecting fundamental constitutional rights threatened by the climate crisis (Juliana v United States, Urgenda v Netherlands, Neubauer v Germany, and Hawai’i Electric Light Co.). The analysis is conducted from the point of view of the legal sources (applicable legal norms, clearly recognised constitutional rights) from which this unenumerated fundamental right is derived. This analysis allows us to assume that the right to a life-sustaining climate system is understood in legal discourse as: (i) a constitutional right derived from the right to life, liberty and property as necessary for their realisation, or (ii) a constitutional right encompassed by the right to a clean and healthy environment, or even as (iii) a constitutional right that is a predicate of all constitutional rights. In the author’s view, this right can also be understood as an unexpressed item (aspect) of the right to life.

IMPACTS OF FREE EDUCATION IMPLEMENTATION ON CLASSROOM TEACHING STRATEGIES; A STUDY OF MOROGORO MUNICIPALITY

The purpose of the study was to explore impacts of free education implementation on classroom teaching strategies in Morogoro municipal council. The study was guided by three objectives which are to identify the teaching strategies which affected by the implementation of free secondary education in Morogoro municipality. To determine the challenges faced by teachers when using the identified teaching strategies during the time of implementing free secondary education in Morogoro municipality and To suggest the remedial measures to the challenges faced by teachers when employing classroom teaching strategies during the time of implementing free education in Morogoro municipality. The study employed mixed approach by integrating both quantitative and qualitative research approaches. Method of data collection such as questionnaire and interview was used to collect data. The study findings revealed that, all teaching strategies affected by the implementation of free secondary education exclude one class, two instructors teaching strategies. These results indicate that, the introduction of free secondary education resulted into deteriorated school infrastructure since some of the key stakeholders of education such as parents/communities thought it is the responsibility of the Government. This tends to affect classroom teaching strategies since school infrastructures like laboratory, library, toilet facilities, canteen, classrooms, and computers can help students to enhance their motivation on learning. Due to this, deteriorated school infrastructure might a barrier that lead to the realization of education as a fundamental constitutional right. Shortage of classrooms affects classroom teaching strategies since teaching in an overcrowded classroom can cause many problems such as stress and frustration for teachers. In case of student’s shortage of classrooms, these results into problems like truancy, noise making, medical/health problems, fighting among others. The study recommended there is need for informed infrastructure if the large classes have to be managed and taught effectively by the classroom teaching strategies. The ministry of education to consider those teaching resources so as to enable teachers to be effectively employs teaching strategies. Policy makers are called upon to mage teachers in training and or in-service training that would make effectives. The educational managers are required to increase the number of teaching staffs so as to release the current teachers from heavy workload and overclouded class so that the teaching strategies to classroom.

Constitutional guarantees of the inviolability of property rights on the example of Ukraine, Poland and Germany

In the course of the modern state building processes, European integration of Ukraine, as well as negative events unfolding as a result of Russia's armed aggression, the property right as one of the fundamental constitutional rights is experiencing restrictions and transformations. The purpose of the scientific research is to highlight the content of the guarantee (principle) of the inviolability of property rights, and how they are embedded in the Fundamental Laws of Ukraine, Poland and Germany. The following general and specifically legal methods of scientific knowledge form the methodological basis of the study: the system-structural method, the method of comparison and logical-legal method. The analysis of constitutional guarantees regarding the inviolability of property rights on the example of Ukraine, Poland and Germany was conducted in the article. According to the results of the conducted research, it is proposed the following separation of the guarantees regarding the inviolability of property rights stipulated by the constitutions guarantees of legislative consolidation of rights and procedures; immediate principles and guarantees of effectuation of the property rights; guarantees of administrative support; guarantees of protection and defense of the property rights. Significance of results and the prospects for further research. The proposed classification makes it possible to more widely define the constitutional guarantees of the property rights, which also makes it possible to provide the legal protection to a wider range of public relations regarding the property.

Constitutional theory and the limits to the punitive power: the Italian case of prisoners’ right to judicial protection

The growing attention of the Italian Constitutional Court and the European Court of human rights for the judicial protection of prisoners’ rights has placed the prison problem at the centre of the theoretical debate on penalty, after it has always been relegated to an administrative problem. The article, starting from the analysis of the complex hermeneutical operation carried out by the Courts, proposes a theory of the relationship between punitive power and the individual based on a new balance between the opposite paradigms of social defence and the protection of individual rights. Initially this balance was identified by the Courts in the theory of re-education, interpreted reductively as a doctrine of humanization of the punitive power. In more recent years, in response to the re-emergence of neoliberal retributive doctrines, this approach has been integrated with an articulated constitutional theory which invokes the constitutional fundamental rights of the individual as a limit to the punitive power. What emerges is a constitutional theory of punitive power that attempts, partially succeeding, to resolve some theoretical limits of liberal utilitarianism.

A STUDY ON EDUCATIONAL STATUS OF BUDAGA JANGAM COMMUNITY IN ANDHRA PRADESH AND TELANGANA

The present paper discusses the educational status of the Budagajangam Community in Andhra Pradesh and Telangana. Budagajangam Community, considered a scheduled caste in Telangana, were no more stakeholders of the fundamental constitutional rights. The education status of the Budagajangam community in the two states is on the lower side compared to the indices of the other scheduled castes. The researcher obtained primary and secondary data from various sources, including the Census, annual reports of the Ministry of Education under the Government of India, and state-level reports. The Beda (Budga) Jangam community experienced 48.5 percent of illiterates in the two districts of Andhra and Telangana. The Beda (Budga) Jangam community exhibited a low literacy level, with a similarly below-average literacy rate observed among the Scheduled Castes. This paper presents a fundamental notion of how a particular community has been marginalized from the dominant societal structure.

PRINCIPLES OF PROCEEDINGS IN A CONSTITUTIONAL COMPLAINT

The constitutional complaint was introduced into the Polish legal order with the entry into force of the Constitution of the Republic of Poland of April 2, 1997. In accordance with the will of the legislator, the Polish model of a constitutional complaint has been shaped as narrow, both in the sphere of the objective scope, which by definition includes normative acts, and the scope of complaint protection granted to the complainant, which is of a limited nature. The doctrine rightly emphasizes that the Constitution of the Republic of Poland has relatively broadly defined the system of individual freedoms and rights, thus giving them the rank of constitutional fundamental rights. The effective implementation of these rights depends on the provision of effective means of their protection. Among the latter, the constitutional complaint comes to the fore as a special, extra-instance and extra-judicial means of legal protection, opening an individuals access to the Constitutional Tribunal. The principles determining the proceedings before the Constitutional Tribunal include the principle of the right of citizens to court, the principle of material truth, the principle of equality, the principle of availability, the principle of constitutional legality, the principle of adversarial procedure, the principle of openness of proceedings, the principle of collegiality, the principle of directness, the principle of orality, the principle of concentration evidence, and finally the principle of procedural formalism.

헌법상 기본권으로서의 안전권 보장에 관한 연구

Disasters caused by large-scale disasters and infectious diseases have fatal consequences for human social life and health, leading to enormous social and economic losses and the creation of an unstable social environment. Despite human's constant desire for safety and the establishment of a legal and institutional safety management system, the frequency of large-scale disasters and disasters is increasing and turning human society into a dangerous society that will be processed. Without explicit grounds for security rights as a fundamental right under the Constitution, the legal system and legal contents of the state's safety protection and security are formed with safety-related sub-laws, adding to legal confusion in practice related to safety protection and security. In the process of developing into advanced countries, social safety insensitivity is still prevalent, and the industrial environment based on performanceism remains the same, and safety-related social expenses account for a significant portion of the national finance. As for safety issues, post-disaster safety management is also important, but it is essential to reduce disaster and disaster- related social costs through proactive safety management. Pre- and post-safety management related to disasters and disasters should be accompanied by introducing it as a constitutional fundamental right as an independent regulation of the right to safety and the realization of the right to safety through individual laws. It is necessary to be faithful to the pursuit of happiness and security guarantees of the people by introducing constitutional safety right, creating a safety environment through the realization of safety rightsthrough individual laws, and establishing a systematic safety management system. The protection and guarantee of constitutional safety right guarantees the people's enjoyment of fundamental constitutional right, while also practicing the obligation to guarantee safety as a fundamental right of the state. This paper presents an alternative to systematizing constitutional theory to protect and guarantee the right to safety as a fundamental right to facilitate the performance of the state's security guarantee obligations under the Constitution through research and analysis on the basis of the right to safety in our Constitution. In addition, when the constitution is revised in the future, we would like to propose a plan to embody it as a constitutional regulation when introducing the right to safety.

On the question of the functional purpose of the prosecutor’s office in the mechanism of protection of constitutional rights and freedoms of man and citizen

The scientific article examines certain issues of the functional purpose of the prosecutor’s office in the mechanism of protection of constitutional rights and freedoms of a person and a citizen.
 It was determined that in the mechanism of human rights protection, the prosecutor’s office performs the human rights function of the state, which is manifested primarily in the protection of fundamental constitutional rights and freedoms of man and citizen and respect for them. The prosecutor’s office, within the limits of its powers, contributes to ensuring national law and order.
 It was established that along with the function of maintaining the state prosecution, the prosecutor also performs the function of representation in court. The peculiarity of the latter is that the prosecutor can represent both the interests of the state and the citizen.
 The essence of the prosecutor’s representation in this aspect is, in accordance with Clause 1 of Article 23 of the Law of Ukraine «On the Prosecutor’s Office», in the implementation of procedural and other actions aimed at protecting the interests of the citizen or the state, in the cases and procedure established by law. Along with the interests of the citizen, the prosecutor represents a citizen of Ukraine, a foreigner or a stateless person.
 It is emphasized that the wording «improperly» regarding the exercise of powers by state authorities contradicts the principle of legal certainty, may be subject to ambiguous understanding and creates obstacles to identifying the actual grounds for the prosecutor’s representation of the state’s interests in court.
 It is emphasized that the prosecutor does not have the right to represent the interests of the state in court in cases related to the election or referendum process, the activities of the parliament, the head of state, political parties, public associations, organizations that carry out professional self-government, as well as religious organizations . Along with this, the prosecutor of the Office of the Prosecutor General or the regional prosecutor’s office, upon a written instruction or order of the Prosecutor General (his first deputy or deputy, according to their competence), may represent the interests of the state in court in the form of the National Bank of Ukraine and the Cabinet of Ministers.
 It is determined that it is the prosecutor who must justify the grounds for representation in court. When representing the interests of a citizen or the state in court in criminal proceedings, only the prosecutor who directly performs such representation has the right to file a civil lawsuit.

The origin of the guardianship action against financial and/or banking entities

The guardianship action is a mechanism for the protection and guarantee of fundamental constitutional rights. Its origin is delimited by what is established in article 86 of the national constitution, and developed by Decree 2591 of 1991 and by the repeated pronouncements of the Constitutional Court that have been issued on the matter. Specifically, the constitutional court has developed a jurisprudential line related to the origin of the protection action against individuals who provide a public service, framing within this issue what is related to the origin of the protection action against banking and/or financial entities, who, by showing a degree of superiority in the contractual relationship with users, may commit abuses or make decisions that affect fundamental constitutional rights. Although there have been some pronouncements from the highest constitutional body, there is no easily understandable academic work among ordinary society that makes it possible to accurately identify when the protection action is appropriate against this type of individuals who provide a banking and financial service, for which reason It is necessary to address the subject of study, for which we will initially delimit the guardianship action conceptually, later its origin against individuals will be explained and then, based on inductive reasoning, its origin will be identified against banking and financial entities, managing to demonstrate what are the problematic situations that can generate the violation of fundamental rights and what are the most violated or thre

Constancy of the property rights and the seizure of assets and corporate rights of russian companies: legal regulation in Ukraine and the experience of EU countries

In the process of modern state-building processes, the European integration of Ukraine, as well as negative phenomena unfolding as a result of Russia’s armed aggression, the right to property, as one of the fundamental constitutional rights, is subject to restrictions and transformation. Constitutional scholars agree on the priority of improving the system of guaranteeing the inviolability of property rights, taking into account the balance of national interests. The article analyses the legal novelty of the seizure of assets and corporate rights of Russian companies and natural persons in Ukraine through the prism of the institute of the property rights in national law and the system of international human rights law. The general shortcomings of the existing legal construction are examined, as well as the existing practice of its application as a practical measure.
 The purpose of the research is to clarify the content of the guarantee (principle) of the inviolability of property rights, as they are enshrined in the Basic Laws of Ukraine, Poland and Germany. The methodological basis of the research consists of general and special legal methods of scientific knowledge, namely: system-structural method, comparison method and logical-legal method. The results. The article analyzes the constitutional guarantees of the inviolability of property rights on the example of Ukraine and EU countries. It was established that the provisions of the Basic Laws, which establish standards in the field of property rights, have a heterogeneous and unsystematized presentation. The structure of “seizure” of corporate rights is compared with the criminal seizure of property and the civil construction of alienation of property rights. Based on the practice of the European countries and USA in the potential seizure of assets of Russian oligarchs, it is proposed to replace the existing mechanism, with the criminalization of the violation of the sanction regime imposed on Russian assets within Ukraine, with simultaneous introduction of the institution of urgent use of property for socially significant purposes, which will allow it to be used today, in order to ensure the use of the property for public purposes, and will confirm the determination of the Ukrainian people in the course of building a European, legal state, which comply with fundamental human rights, is determined to the principle of rule of law, legality, and will ensure its contribution in increasing the country’s image and investment attractiveness.

Article: An Environmental and Legal Component of Criminal Offenses in Conditions of the Russian-Ukrainian International Military Conflict

The article examines the ecological and legal component of criminal offenses under martial law, since the risk of man-caused accidents and ecological disasters, which threaten security, including environmental and human ones, as well as international legal order, is increasing owing to aggressor-country army’s deliberate actions. It has been argued that the consequences of the military conflict for the environment, human life and health are already considered catastrophic. It has been proven that the ecological crisis should be recognized as an existential threat to the national security of Ukraine. Pressing issues of forming interdisciplinary (synergistic) connections between environmental and criminal law science and other areas of scientific knowledge have been covered. Considering the outlined problem is becoming of a significant relevance due to the fact that certain criminal offenses cause damage to the environment, thus, leading to its destruction. It is a matter of such criminal offence compositions as laws of the war violation (Article 438 of the Criminal Code of Ukraine (CCU) and ecocide (Article 441 of the CCU)). The expediency of improving the current criminal legislation and legal liability mechanism, which would satisfy the proportionality requirement, namely commensurate punishment of severity and consequences of the committed acts, has been substantiated. The expediency of further criminal law prohibition of ecocide in the new CCU Draft has been motivated, taking into account the degree of social danger as well as the severity of large-scale and long-term consequences for the environment and the entire humanity. It has been proven that the state’s environmental function to ensure environmental security, fundamental constitutional environmental rights of citizens, as well as to maintain ecological balance and sustainable development on Ukraine’s territory should become today’s narrative, with the environmental security component to be further included into the sectoral state restoration programs in order to form a new environmental law under martial law both for Ukraine and European countries. Based on our own conclusions and generalizations, proposals and recommendations for improving the current national legislation and greening the sectoral national policy components have been provided. It has been argued that legal mechanisms for fixing and determining the amount of environmental damage caused to natural resources and complexes as a result of armed aggression and hostilities under martial law should be established at the legislative level. environmental safety, environmental damage, environmental damage, environmental right protection, country’s natural resource potential restoration, severity of consequences, state’s environmental function, environmental and legal conflictology

Building the case for restricted use of predictive policing tools in India


 
 
 The use of predictive policing by law enforcement agencies has lately proliferated across several states in India. Predictive policing uses machine learning models to analyse substantial amounts of crime data to map and predict crimes, offenders, identities of the perpetrators and victims of crime. The aim is to enable the efficient allocation of limited resources at the disposal of law enforcement agencies for crime prevention. However, evidence suggests that predictive policing, in its current form, suffers from serious limitations. Inferior quality datasets are being used to train algorithms and citizens are unable to contest inaccurate algorithmic outcomes that could lead to their preventive detentions, often to the detriment of criminal justice norms and constitutional fundamental rights of citizens. More importantly, in the absence of oversight mechanisms restricting its use, the use of predictive policing has ended up reinforcing and amplifying police biases in law enforcement. This paper focuses, in particular, on the many ways in which predictive policing increases the risk of preventive detentions under section 151 of the Code of Criminal Procedure (CrPC), 1973 and proposes recommendations to preclude possibilities of unlawful preventive detentions using predictive policing tools. In part 1, the paper reviews the practice of preventive detention of potential offenders by the police in India—under section 151 of the CrPC. In part 2, I build the case for restricted use of predictive policing tools to only predict the location, type and time of the crime and not potential offenders or victims. In the last part, I recommend substantive measures and procedural safeguards to secure the reliable and accountable use of place-based predictive policing tools in India.
 
 

Redefining the Right to Public Education

The failure to recognize education as a fundamental constitutional right has meant that the quality of education in public schools varies greatly depending on where students live. This Note analyzes the origins of education litigation, current state constitutional standards for education quality, and previous arguments in support of a federal constitutional right to education. It then examines two recent cases, A.C. v. Raimondo and Gary B. v. Whitmer, and advocates for their novel stance on education rights: education is an implicit right that allows students to become meaningful participants in democracy.

What is democratic backsliding?

What is democratic backsliding?