Fundamental Procedural Rights Research Articles

Transparency Unveiled: Access to Information in Digital Markets Act Proceedings at Member State Level – The German and Austrian Experience

Access to information is essential in order to guarantee fundamental procedural rights under EU law – in particular in order to make full use of the right of defence. At the same time, access to information ensures the greatest possible transparency for all parties and stakeholders. As another key point, access to information is also crucial in order to strengthen private enforcement, which is the second essential pillar of the effective enforcement of EU law in competition law. This article outlines the options provided for accessing information in the context of the new DMA in selected Member States, namely Austria and Germany. This article is part 2 on the issue of ‘Transparency Unveiled: Access to Information in Digital Markets Act Proceedings’.

Transparency Unveiled: Access to Information in Digital Markets Act Proceedings on EU Level

Access to information is essential in order to guarantee fundamental procedural rights under EU law – in particular in order to make full use of the right of defence. At the same time, access to information ensures the greatest possible transparency for all parties and stakeholders. Furthermore, access to information is also crucial in order to strengthen private enforcement, which is the second essential pillar of the effective enforcement of EU law in competition law. This article outlines the options provided for accessing information in the context of the new DMA on EU level. This article is part 1 on the issue of ‘Transparency Unveiled: Access to Information in Digital Markets Act Proceedings’.

Transparency Unveiled: Access to Information in Digital Markets Act Proceedings at Member State Level – The German and Austrian Experience

Access to information is essential in order to guarantee fundamental procedural rights under EU law – in particular in order to make full use of the right of defence. At the same time, access to information ensures the greatest possible transparency for all parties and stakeholders. As another key point, access to information is also crucial in order to strengthen private enforcement, which is the second essential pillar of the effective enforcement of EU law in competition law. This article outlines the options provided for accessing information in the context of the new DMA in selected Member States, namely Austria and Germany. This article is part 2 on the issue of ‘Transparency Unveiled: Access to Information in Digital Markets Act Proceedings’.

Transparency Unveiled: Access to Information in Digital Markets Act Proceedings on EU Level

Access to information is essential in order to guarantee fundamental procedural rights under EU law – in particular in order to make full use of the right of defence. At the same time, access to information ensures the greatest possible transparency for all parties and stakeholders. Furthermore, access to information is also crucial in order to strengthen private enforcement, which is the second essential pillar of the effective enforcement of EU law in competition law. This article outlines the options provided for accessing information in the context of the new DMA on EU level. This article is part 1 on the issue of ‘Transparency Unveiled: Access to Information in Digital Markets Act Proceedings’.

Quantitative legal prediction as a dispute resolution mechanism

AI developments and their potential impact on society have dominated the public debate in recent years. This has not been different in the legal field, where many hope that AI could bring about disruptive change in an area of society that has until today proven to be largely insulated against technological developments. The legal system produces a massive amount of data (legal decisions, lawyers’ briefs, etc.), which, through the use of AI techniques such as natural language processing and machine learning, could be harnessed and instrumentalized for several different purposes. The image that has captured the imagination is that of the robot judge, dispending swift and impartial justice without human intervention. Legal conflicts, however, decide the lives and livelihoods of people, and these high stakes explain why the administration of justice is surrounded by fundamental procedural rights. The robot judge is today far from reality, but AI is increasingly finding its way into the legal system and its use as a (crude) dispute resolution mechanism is no longer unimaginable. This contribution discusses the use of AI systems within the legal field as a means for dispute resolution. It briefly touches upon existing applications and the possible advantages, but focuses mainly on the many challenges that the interplay between AI and dispute resolution poses in light of fundamental procedural rights. It concludes with a discussion of the European regulatory response to this new phenomenon.

The Tension Between Combating Terrorism and Protecting the Right to a Fair Trial in Indonesia

A consistent criticism of the Indonesian criminal justice system indicates its dysfunctional judicial system plagued by systemic corruption and government interference. Given the high profiles of terrorism offences and their strict punishment, it is essential to maintain consistency in sentencing decisions for these crimes. However, there is a significant lack of evidence-based studies of sentencing in Indonesian courts, and none specifically related to terrorism offences. The aim of this study is to analyse the application of the right to a fair trial in sentencing terrorism offences in Indonesia through the interpretive lens of Southern criminology. This study takes a multi-dimensional approach of historical, legal, and empirical analyses to provide an in-depth understanding of factors that affect sentencing decisions in terrorism cases. First, the historical analysis explains that prosecutions for terrorism today include radical Islamists, minority extremists and separatist groups willing to resort to violence against the state and society to achieve their goals. Second, the legal analysis highlights how the existing sentencing regimes provide limited guidance for judges when determining the appropriate punishment for terrorist offenders, frequently leading to prison sentences exceeding 10 years. Third, qualitative analysis further explains that judges use their discretion to avoid the minimum mandatory sentence in specific circumstances, such as in the case of juvenile offenders. A Southern criminology approach helps explain terrorism sentencing in the broader historical, legal, and socio-political contexts. Ultimately, the way laws are written and how judges determine the sentences of terrorism offences result from the persistent impact of colonialism, authoritarianism, and the 'war on terror' discourse. The case study reveals violations of international human rights rules and standards. Terrorism sentencing practices also exemplify a troubling trend where national security trumps the fundamental procedural rights of terrorist offenders.

On the Protection of the basic procedural rights of the parties in China's Civil Litigation

To make every citizen feel fairness and justice in judicial trials is the basic principle and goal of China's current judicial procedures. The parties should not only realize the protection of their substantive legitimate rights and interests in civil proceedings, but also respect their procedural basic rights. This is not only the embodiment of the litigant's status as the subject of civil litigation, but also the means and ways to seek relief after the litigant's legitimate civil rights and interests are violated. The fundamental procedural rights of the parties are of great significance to the protection of the rights and interests of the parties, the smooth proceeding of judicial activities and the sound rule of law. This paper mainly discusses through three aspects, the first one is the outline of the parties' procedural basic rights; The second is to analyze the problems in the process of protecting the fundamental rights of the parties; The third aspect is the exploration of the path to guarantee the procedural rights of the parties in China.

Violation of Public Policy as a Ground for Non-Recognition of Foreign Judgments – The Case of Judgments Preceded by a Mareva-Type Freezing Order

Abstract This note examines a ruling by the Corte di Cassazione concerning procedural public policy as a ground for non-recognition of foreign judgments. The Corte di Cassazione held that a foreign judgment may not be denied recognition in Italy on the sole ground that the court of origin previously granted an in personam interim measure restraining the respondent from dealing with its assets, whereas, under Italian law, asset preservation measures necessarily operate in rem. According to the Court, the public policy defence can only succeed if the proceedings before the court of origin, considered as a whole, were tainted by a serious violation of fundamental procedural rights. Having found no evidence of such a violation in the circumstances, the Court concluded that the foreign judgment concerned was eligible for recognition. The ruling of the Corte di Cassazione confirms of the restrictive approach to public policy which the Court itself developed throughout its previous case law, and will plausibly serve as a model for future decisions regarding procedural public policy.

Issues of fundamental procedural rights and procedural constitutionality in the Fundamental Law

The Fundamental Law of Hungary entered into force on 1 January 2012, introducing several new constitutional rights, one of it is the right to fair administrative procedure. This paper aims to present a comprehensive analysis of that new constitutional right. The first part of the study is devoted to explain the legal background and the constitutional tradition behind the right to fair procedure (by authorities). We should note that Constitutional Court’s decisions had already specifically affected legal regulations of a procedural nature before the declaration of the fundamental right to fair procedure. These decisions – examined in the paper – have been pivotal for Hungary’s legal system and procedural law. Secondly, the current practice of the realization of the right to fair administrative procedure is presented. Through the Constitutional Court’s practice, we also describe the partial rights/authorizations of this fundamental right. Finally, the right to legal remedy and to fair judicial procedure are analysed in detail.

The Protection of the Fundamental Procedural Rights of Business Entitiesby Applying Sanctions and the Results of the Legal Systematization of These Rights

The present article analyses the extent of influence the adopted Article of the Law on Public Administration of the Republic of Lithuania (Art. 368, currently Art. 37), which systematises the basic procedural rights of business entities, has on the protection of business entities’ procedural rights, which are assured by the Supreme Administrative Court of Lithuania in its case law. The precise provisions invoked as basis for procedural rights protection in the case law of the Supreme Administrative Court of Lithuania regarding sanctions imposed on business entities are showcased. Furthermore, the results and plausible reasons for the application or non-application of procedural rights systematized in the Law on Public Administration are appraised.

Cooperation and reporting obligations in sports investigations

The importance of internal sports investigations is often overlooked. Sports federations and anti-doping organisations have an increasing interest in investigating asserted sports rule violations in order to impose sanctions upon athletes (unless otherwise stated, the term ‘athlete’ also refers to other sportspersons, such as officials or referees) in breach of sports regulations. However, the gathering of intelligence may cause difficulties, because athletes involved may leave no trace of any wrongdoing. This problem arises not only in cases of manipulation of sports competitions or unethical behaviour (for example bribery, misappropriation of funds, sexual harassment or discrimination.), but also in regard with alleged anti-doping rule violations without positive doping tests (so-called non-analytical positive). To overcome these obstacles during the course of sports investigations, sports associations have incorporated measures into their frameworks for the purpose of gathering evidence, i.e. cooperation and reporting obligations. Athletes are subject to these obligations, which may include the duty to provide personal information upon request of the investigating sports authority. Any failure to comply with such a demand can lead to harsh sanctions of up to a lifetime ban. Cooperation and reporting obligations also have an impact on fundamental procedural rights of athletes, especially if criminal proceedings have been commenced against the athlete at the same time due to the criminalisation of sports-related misconduct. The aim of this article is to examine the legality of cooperation and reporting obligations in sports proceedings, taking into consideration the fundamental procedural rights of athletes as well as the interconnection between sports investigations and criminal procedures. In particular, it discusses whether the infringement of athletes’ basic procedural rights in the course of internal sports investigation proceedings is justified in order to achieve the pursued objective of investigating and prosecuting asserted sports rule violations. It concludes that compulsory provided evidence is disproportionate and, thus, incompatible with the fundamental rights of the alleged athlete guaranteed under Article 6 of the ECHR.

La influencia de las nuevas tecnologías en la documentación del proceso penal español

El presente artículo tiene como objetivo analizar la incidencia que las nuevas tecnologías han tenido en la documentación procesal, especialmente, en el acta del juicio oral. Así mismo, se examinará la incidencia de estas tecnologías en el derecho al recurso de las partes y su conexión con los derechos fundamentales de carácter procesal. Con carácter ilustrativo se plantea el problema del acta defectuosa, como causa de la nulidad del proceso judicial y posible supuesto de responsabilidad patrimonial de la Administración.

Fundamental Procedural Rights and Effective Enforcement of Articles 101 and 102 TFEU in the European Competition Network

This article deals with the fundamental procedural rights of companies that are targeted in the enforcement of Articles 101 and 102 Treaty on the Functioning of the European Union (TFEU) by the European Commission or the competition authorities of the EU Member States. The paper first provides a (non-exhaustive) list of such rights as applicable to the enforcement of Articles 101 and 102 TFEU by the European Commission, and explains the source of these fundamental rights in the EU legal order. The paper then examines the relationship between fundamental procedural rights and effective enforcement of Articles 101 and 102 TFEU. It argues that procedural rights often contribute to effective enforcement, but not always. The interplay between fundamental rights of legal persons and competition enforcement remains a balancing exercise, and this balancing exercise is not the same as in traditional criminal law. Finally, the paper examines the question whether or to what extent EU Member States can, for the enforcement of Articles 101 and 102 TFEU by their national competition authorities (NCAs), provide for a lower or a higher level of procedural rights than the level of fundamental procedural rights applicable to the enforcement of Articles 101 and 102 TFEU by the European Commission.

The Dutch Administrative Loop Under Scrutiny: How the Dutch (Do Not) Deal with Fundamental Procedural Rights

When controlling the administration, administrative courts check the administrative decision and, in case of unlawfulness, they can annul the decision. This process takes time, and is often inefficient and unsatisfactory. Seeking solutions to the problems this mechanism brings about, the legislator introduced the administrative loop: instead of annulling an irregular decision, the administration gets time to repair the decision. For this reparation, the court provides the administration with instructions. This administrative loop is one of the (new) instruments in the toolbox of the administrative court to achieve final (and faster) dispute settlement, which entered administrative procedural law as of 2008. The Belgian Constitutional Court’s ruling may not have a direct impact on Dutch administrative law, but they gave thought for food and resulted in asking some major questions as regards fundamental procedural rights. For instance, a guarantee lacks for parties to have their oral say on the application of the loop. And third parties, not yet involved in the procedure, are under certain circumstances possibly deprived from access to court, especially if the reparation after the loop has been applied, did not take the form of an administrative decision. Furthermore, courts have to stay aware of the separation of powers and hence their impartiality. In case an administrative court gives the administration too far-reaching instructions on how to repair an administrative decision, the risk arises the citizens fear (justified) partiality on the part of the court.

A Atuação Pedagógica Do Magistrado Na Busca De Um Processo Justo E De Uma Prestação Adequada: Protagonismo Judicial

Este trabalho analisa a possibilidade de uma atuação pedagógica por parte do magistrado na busca por um processo justo e adequado. Utilizou, assim, metodologia dedutiva, partindo dos deveres e poderes do juiz para avaliar a possibilidade de induzir condutas pautadas na boa-fé processual mediante a aplicação de litigância de má-fé e determinação de emenda à inicial. O magistrado pode ser um agente que auxilia na efetivação do processo justo e da prestação adequada, não devendo manter-se inerte frente a violações claras aos direitos fundamentais processuais. Essa atividade não deve generalizar as situações, sendo pautada na análise de casos concretos.

The Belgian Constitutional Court and the Administrative Loop: A Difficult Understanding

This article focuses on the introduction of the administrative loop before the Belgian administrative courts. It aims to assess the compliance of this new procedural tool with the principles of the rule of law and fundamental (procedural) rights, as interpreted by the Belgian Constitutional Court. It is established that the initial Flemish version of the administrative loop, which finds its origin in Dutch administrative procedural law, was given a much more limited scope than the Dutch loop. It is exactly this limited scope of the Flemish loop that resulted in fundamental objections from the perspective of the rule of law and fundamental procedural rights and brought the Constitutional Court to annul of the Flemish loop. Whilst the federal version of the administrative loop differed in some aspects from the annulled Flemish loop, it was also given a very limited scope. Hence, also the federal version of the loop was declared unconstitutional by the Constitutional Court. The latest version of the administrative loop, which was introduced by the Flemish decree of 3 July 2015 before the Flemish administrative courts, differs on several essential aspects from the previous unconstitutional legislation. It seems that the Flemish legislator in this way succeeded in its efforts to appease the objections of the Constitutional Court and to comply with the principles of the rule of law and fundamental (procedural) rights.

La Directiva de Retorno y la tutela judicial efectiva

Después de cierto tiempo de aplicación, la Directiva de Retorno 2008/115 contiene elementos que suscitan un especial interés por afectar a los derechos procesales fundamentales de los extranjeros nacionales de terceros Estados en situación de retorno. Pero, además, su proyección afecta a la configuración de una nueva política migratoria de la Unión Europea que supone sin temor a la exageración el verdadero reto para el siglo XXI. Una política que debe respetar los derechos básicos de los extranjeros y permitir la integración en un espacio de libertad, justicia y seguridad. El presente trabajo señala luces y sombras en el camino desarrollado por la Directiva de retorno, su transposición por los Derechos estatales, la aplicación de la misma y la jurisprudencia del TJUE en su interpretación precisamente en el momento en que se plantea su modificación.

LAS DIFICULTADES PROBATORIAS EN EL PROCESO CIVIL: TRATAMIENTO DOCTRINAL Y JURISPRUDENCIAL, CRÍTICAS Y UNA PROPUESTA

This paper aims to present certain assumptions that may be considered difficult to prove in the judicial context, as well as it studies the techniques that have been proposed for solving them by Chilean and influential comparative jurisprudence and doctrine. For this, we have tried to highlight the challenges that these practices and the reasoning itself present to a civil process, where the determination of the truth of factual statements is essential to the fairness of the decision. These arguments are subjected to criticism from their epistemological correctness and validity of fundamental procedural rights. This paper concludes by proposing a set of guidelines that can be used by a judge to solve these cases, minimizing the risks of error in the decision.

¿La reserva de lo posible se constituye en un límite a la intervención jurisdiccional en las políticas públicas sociales?

In light of the shortage of funding to support positive rights to social welfare, the text analyses the main precedents of the Federal Constitutional Court concerning the proviso of the possible (Vorbehalt des Moglichen), and concludes that is not applicable to the existential minimum (Existenzminimum) and that, in terms of the enforceability (potential for judicial review) of any other positive rights to social welfare guaranteed by law, the margin of discretion granted to law-makers in budgetary policymaking should be reduced to zero. In addition, the text demonstrates that the proviso of the possible, contrary to what might be imagined, has nothing to do with social public policies which, in the context of fundamental procedural rights, are justified only as a means of realisation of the social benefits that may be claimed.

Transnational Access to Environmental Information

AbstractThis paper traces back the efforts, in particular in Europe, to promote transnational legal provisions which grant a right of access to environmental information. Initiatives in the 1970s failed to establish a fundamental right to a clean environment. However, the establishment of fundamental procedural rights of access to information, participation in decision-making and access to justice in environmental matters has been more successful – culminating in the 1998 Aarhus Convention. This paper describes the – until now unsuccessful – attempts to extend the territorial scope of application of the Aarhus Convention to non-European countries and regions, and ultimately the conclusion of a global convention on access to environmental information.