Implementation Of Fundamental Rights Research Articles

Realization of the right to civil service at war: the search for a normative model (based on the experience of Ukraine)

Under the conditions of introduction in the country of legal regime of martial law in connection with an external armed aggression against Ukraine, conditions for the implementation of fundamental rights of citizens, including the right to public service, the basis of the implementation of which is regulated by numerous normative legal acts, have changed significantly. The ,,basic” normative model, which regulates bases of realization of the person’s right to public service, formed in Ukraine, including taking into account positive normative experience of foreign countries, orientation on provision of practical implementation of innovative functions of the state in the context of ,,global” European integration vector of its development, is relevant to peaceful conditions and in the context of appearance of ,,external negative factor” for existence of the state has not appeared in full measure capable of providing a possibility for a person to perform the right to public service. Under the conditions of the introduction of the legal regime of martial law, quite appropriate to ensure the relevant foundations of the functioning of public service as a whole, the implementation of a person’s right to public service is normative activity of the state, focused on fixing, in parallel with the existing ,,basic” model for peacetime conditions, ,,alternative” normative model as forced, temporary, justified. The peculiarity of this model lies in the fact that it fixes the possibility of simultaneous implementation of both ,,basic” (for peacetime) and temporary legal prescriptions, the possibility of ,,pause” in the application of ,,basic” legal prescriptions and temporary operation of innovative rules, focused specifically on the period of legal regime of martial law.

Legal Protection of Children as Victims in Restorative Justice Based on Justice Value

The research purpose of this study is to determine the causes of children becoming victims of criminal acts and the legal protection of children as victims of justice-based crimes. approach method using normative juridical, research results which state that the protection of human rights for children who are victims of crimes is regulated in law as a legal protection for the State's obligations to the Indonesian people in ensuring the implementation of fundamental rights. The process of protecting and upholding human rights is carried out based on the state ideology, namely Pancasila which prioritizes human values, respecting the human rights of every citizen, both adults and children

The constitutional test of necessity: problem statement

The subject-matter of the research is the constitutional test of necessity. This element of proportionality could be found in doctrine and case-law in the form of metaphors. The necessity as a prong of proportionality consists in testing the available alternatives in comparison with the measures that the legislator has chosen to achieve public aims. The notion of a least restrictive means can be used as a synonym for this element of proportionality. Although this term is cumbersome, it more precisely defines the nature of constitutional litigation, where the admissibility of interference with fundamental rights is assessed.The purpose of the research is to argue that this element of proportionality implies the assessment of the least restrictive alternatives for the rights-holder in order to achieve the goal chosen by the legislator.The methodology of research includes the method of analogy. Accordingly, the analogical reasoning is used in constitutional adjudication when testing necessity of legislative measures, but not the methods of logical subsumtion or judicial balancing. The sources of such analogy can be the rules of international law, ordinary legislation and comparative legal materials.The main results of the research and the scope of their application. The expression necessity is widely used in international law and ordinary legislation. Such approaches are relevant to constitutional adjudication. Thus, the ultima ratio principle, which initially appears in criminal and administrative law, acquires universal application in constitutional justice. This criterion, which requires the use of the most severe legal measures only as a last resort, with the ineffectiveness of softer alternatives, can be extended to the constitutionalization of other branches of legislation.The test of necessity, which is often expressed in metaphors, in the case-law of constitutional justice is based on the method of analogy. In the decisions of the constitutional justice bodies, the least restrictive means are often mentioned in comparison with those which were originally chosen by the legislator. At the same time, the discovered alternatives should be equally or at least minimally suitable in comparison with the existing legislative solutions. Comparative law, international law, or ordinary legislation are often an auxiliary source for constitutional judges to identify and formulate least restrictive alternatives.Conclusions. The value of the analogical reasoning, including the appeal of constitutional justice to comparative law materials, lies in the possibility of identifying some experimental legal regimes. Moreover, the perception of specific alternatives, their clarification or modification remains within the discretionary powers of the legislature. Thus, avoiding the well-known counter-majoritarian difficulty, constitutional justice conducts a dialogue with the parliament, and in the end, contributes to the optimal implementation of fundamental rights.

The Position of the Municipal Public Administration in the Context of the Pandemic: An analysis from the experience of Juiz de Fora/MG

The COVID-19 pandemic demanded the adoption of swift measures by public managers to control the spread of the disease, as the virus had a high rate of transmissibility. Effective, non-pharmacological actions involving social distancing and isolation were widely applied. It was noticed that they provided opportunities for the collision between the rights to free enterprise and health, by restricting the full exercise of commercial activities. These, intrinsically, promote agglomeration of people. It is therefore necessary to assess whether the restrictive measures for the promotion of the rights to health and life were proportional to the preservation of the essential core of free enterprise. The context of the city of Juiz de Fora was chosen for analysis, between the months of February 2020 and December 2021. Data regarding the number of cases and deaths in the municipality on each day of publication of the municipal decrees that conveyed trade-restrictive measures. The research was supported by the theories of fundamental rights and legal arguments, for the rational (argumentative) and proportional investigation of the implementation of fundamental rights, in the face of conflicts in the concrete case. Still, the consequentialist theory was used to assess whether the examination of economic, social and political impacts prevailed. It started from the assumption that the rights inherent to the exercise of economic activity would prevail over the adoption of sanitary control measures. Through the empirical research methodology, combined with qualitative and inference strategies, it was found that the municipal administration of Juiz de Fora, proportionally, privileged the right to health, over free enterprise.

The Idea of Human Rights: From the Ancient World to the Digital Age

The purpose of the article is to identify the features of the development of the idea of human rights, starting from the Ancient World, and on this basis to show its significance in the digital age. To achieve this goal, the conceptual foundations of the idea of human rights and their reflection in political and legal thought at different stages of the evolution of society and science are analysed. The subject of the study was the concept of human rights. The study was conducted on the basis of post-non-classical scientific methodology, including constructivism. The formal-legal and comparative-historical methods are also used. According to the results of the study, it is concluded that in the conditions of modern technological development, digitalisation is becoming a challenge to the idea of human rights, a threat to individual freedom, and therefore it is necessary to develop and implement new legal mechanisms that would guarantee the full implementation of fundamental rights and freedoms, provide the necessary balance between individual freedom and public security. In this context, the legal consolidation and practical implementation of the principle of formal equality become important.

PANDEMIA E DIREITO DO TRABALHO: PROJETO APLICAÇÃO DOS DIREITOS E GARANTIAS FUNDAMENTAIS E PERSPECTIVAS DA EXTENSÃO NO FORMATO EAD

This article aims to analyze the outreach project “Implementation of Fundamental Rights and Guarantees”, which was developed to explain the transitional labor rules issued during the Covid19 pandemic crisis period to a group of outsourced workers at the Center for Legal and Social Sciences, at Federal University of Campina Grande. The research conducted from the deployment of the project seeks to present the theoretical basis for the need to develop the project, as well as reporting its perspectives and difficulties. To achieve this, it was carried out through the deductive approach method and, as technical procedure, it was conducted a bibliographic and documentary survey. Thus, it was possible to verify that the provision of university outreach project must continue even in the midst of the crisis, because, despite the difficulties experienced by the virtual environment, public education must adapt to the adversities of the new reality to fulfill its social function.

Democracy and Political Prisoners in Bhutan

The uprising of 1990 in Bhutan was a wakeup call for Bhutanese monarchy to reform. The response remains the blackest period in the country’s history. Women were raped; political leaders, students, human right activists and other common people were tortured and jailed. Many succumbed to torture; no one has the definite data of how many. Ethnic cleansing took place resulting in the eviction of more than one-sixth of the country’s population. Largest per capita refugees were produced. Movement for dignified repatriation has failed miserably but the resettlement of those Bhutanese refugees in developed countries was declared a great success. The King announced in 2005 that the country will have a ‘democratic’ government. He handed over his authority to his son to govern. The king and the country received massive appreciation for initiating democracy. By nature, the democracy should primarily benefit those who demanded it. Instead, Bhutan is the only democracy in the world where pro-democracy activists are still serving jail sentences. International community remain mute spectator to the sugar-coated Bhutanese democracy. Royal Government of Bhutan fooled them by taking advantage of their interest on geopolitics. This paper entails the story of dissidents behind the bars, their families and response from the international community – including governments, human rights groups and the United Nations. Additionally, this paper highlights the implementation of fundamental rights guaranteed by the constitution of Bhutan and to see if such fundamental rights as enshrined in the constitution are real or not.

La justicia del derecho según el constitucionalismo (inter)nacional frente a una pregunta desorientadora

A fines de 2017, Gustavo Zagrebelky, lanza un ataque radicalmente duro a los derechos fundamentales y plantea la pregunta desorientadora: “si las injusticias y los males del mundo son una violación o una consecuencia de los derechos”. A partir de aquí y de su solicitación para “una jurisprudencia que [ponga] en relación las reivindicaciones de los derechos con el problema de la justicia”, este trabajo se enfoca en las dificultades específicas que hoy condicionan la conjugación de derecho y justicia dentro de las coordenadas de los principios del constitucionalismo (inter)nacional y, en particular, de su principio fundante de la tutela y implementación de los derechos fundamentales. En particular, para aclarar y justificar la respuesta que se dará en conclusión a la “pregunta desorientadora” de Zagrebelsky (§ IV), primero se especificará en que sentido es plausible afirmar que el proyecto político y jurídico del constitucionalismo (inter)nacional identifica los términos para una conjugación inédita de justicia y derecho (§ II), y luego se dirigirá la atención a las dificultades con las cuales la jurisdicción (inter)nacional se enfrenta cuando quiere atenerse al principio fundante del constitucionalismo (inter)nacional de la tutela y implementación de los derechos fundamentales (§ III).

Desenvolvimento humano sustentável no semiárido do nordeste do Brasil: da constitucionalização à efetivação dos direitos sociais

Este artigo tem como objetivo demonstrar que a efetivação dos direitos fundamentais em sua integralidade pode ensejar as condições necessárias para a universalidade do bem-estar na sociedade brasileira. Toma-se como referência o Programa Bolsa Família como política pública direcionada para a redução da pobreza e da miséria e o semiárido do Nordeste do Brasil como campo de observação privilegiado dos reflexos de sua aplicação. Adotou-se uma abordagem histórica para identificar os problemas de ordem jurídico-política que funcionam como barreiras para as ações do Estado que visam à igualdade social. Conclui-se que o desenvolvimento sustentável depende da efetivação articulada dos direitos sociais.

La fatale attrazione tra diritto sacro e diritto secolare nel modello israeliano: la giurisdizione dei tribunali rabbinici in materia di matrimonio e divorzio

SOMMARIO: 1. La giurisdizione dei tribunali rabbinici in materia di status personale: il matrimonio e il divorzio nel diritto halachico e nei piu recenti orientamenti giurisprudenziali - 2. Diritto, stato e religione nel modello giuridico israeliano: religious law vs. secular law? - 3. L’incorporazione diretta del diritto ebraico nel modello israeliano: law as religion, religion as law - 4. Beis Din, identita religiosa e risoluzione alternativa delle controversie.The fatal attraction between religious law and secular law in the Israeli legal system: the jurisdiction of the rabbinical courts in matters of marriage and divorceABSTRACT: This article explores a unique case study of privatized family law in a liberal democratic state in the Western world: Israel. The complex relationship among law, religion and state presents characters quite peculiar in the Israeli experience. Due to historical and cultural reasons, among the systems belonging to western legal tradition, there is no other country that experiences more intensely the problem of religion’s place. In matters of marriage and right to divorce, the Israeli system nominally adheres to exclusive religious law and jurisdiction, by means of rabbinical courts, but religious and civil systems interact profoundly, shaping its family law as a hybrid creature of civil and religious legal elements. Unlike what happens in other countries, such as Canada, United Kingdom or United States, the Supreme Court of Israel has not yet undertaken a detailed policy analysis of the balance between the rights and obligations of the husband and wife in the process of enforcing divorce judgments, but sanctions against recalcitrant spouses in Rabbinical courts in Israel have been addressed in light of the principles of Jewish and constitutional law. The implementation of fundamental rights in family law matters, specifically the one of equality between spouses, is a prerogative of the jurisprudence of secular courts.

Una interpretación alternativa a la justificación de garantías penales en el derecho administrativo sancionador para Chile

This paper provides a brief description of the state of affairs on the issue of implementation of fundamental rights of the citizens in administrative penalty procedures, based on some statements of the Chilean courts of justice. Here it is propose uprightly to abandon the search for a «supposed natural or ontological identity» between administrative offense and criminal offense. Under these assumptions, we conclude that a rational understanding of the tools that the administration has, to determine their duties, can finally help as a clarification of the historical relationship between administrative penalty and punishment.

Una interpretación alternativa a la justificación de garantías penales en el derecho administrativo sancionador para Chile

This paper provides a brief description of the state of affairs on the issue of implementation of fundamental rights of the citizens in administrative penalty procedures, based on some statements of the Chilean courts of justice. Here it is propose uprightly to abandon the search for a «supposed natural or ontological identity» between administrative offense and criminal offense. Under these assumptions, we conclude that a rational understanding of the tools that the administration has, to determine their duties, can finally help as a clarification of the historical relationship between administrative penalty and punishment.

Normative Power FRONTEX? Assessing Agency Cooperation with Third Countries

Human rights groups frequently criticise FRONTEX and the legality of the agency’s operations has been questioned in scholarly literature. At the same time, recent studies have shown that humanitarian concerns are increasingly emphasised in FRONTEX’s rhetoric. Drawing on Manners’ concept of ‘Normative Power Europe’, and Niemann and de Wekker’s framework for empirical analysis of normative power Europe, this paper assesses FRONTEX’s cooperation with third countries with a focus on one norm: respect for fundamental rights. It examines to what extent the agency shows a genuine commitment to the implementation of fundamental rights and to what extent the agency is acting in a normative way, i.e. applying universal norms and showing willingness to listen to and learn from the experiences of third countries. The analysis suggests that that the agency has moved towards a more genuine commitment towards fundamental rights implementation and that there is a fair degree of inclusivity and reflexivity to third country cooperation. However, the possibility of internal conflicts of interest as well as discrepancies between what is stated on paper and what is happening on the ground may stand in the way of the agency’s exercising normative power.

A Legitimidade na Regulamentação do Direito à Vida: Tensões Entre o Legislativo e o Judiciário na Concretização da Constituição

O julgamento da ADPF 54 pelo Supremo Tribunal Federal teve como efeito a regulamentação do início da proteção constitucional à vida, silenciada na Constituição Federal de 1988 e na legislação ordinária. Todavia, a tramitação perante o Legislativo de Projeto de Lei prevendo a criminalização da interrupção da gravidez por diagnóstico de anencefalia fetal reacende as tensões acerca dos limites da atuação dos poderes Judiciário e Legislativo na concretização dos direitos fundamentais, as quais serão analisadas no presente trabalho à luz do direito comparado, a fim de compreender como a regulamentação do direito à vida se estabeleceu em outros Estados Democráticos.

O Multiculturalismo como Filosofia Política: Caminhos para uma Justiça Social

O trabalho se refere ao estudo da doutrina da filosofia política denominada multiculturalismo. A necessidade de compreender a sociedade contemporânea, fez com que se optasse por investigar as teorias que fundamentam as principais reivindicações formuladas pelos grupos vulneráveis ou minoritários. O problema que se pretende responder é: Como garantir a aplicação dos direitos fundamentais numa sociedade plural, reconhecendo as particularidades de grupos minoritários e promovendo ações para se alcançar a igualdade material? A hipótese é de que o multiculturalismo traz a possibilidade de refletir sobre essas questões e oferece um novo olhar para enfrentar os conflitos sociais do século XXI.

Future prospectives of sub-Saharan women living with HIV residing in France for more than seven years: prospective pilot study.

IntroductionIn 2011, a French national survey of people living with HIV (PLHIV) has shown that 40% of persons diagnosed since 2003 are originated from sub-Saharan Africa, two thirds of them being women. For them, in the short term, access to social rights is a priority. Today, over 90% of PLHIV are treated effectively and with the aging of this population, questions about their future perspectives arise. Our service provides a multidisciplinary (medical, psychological, social) approach to PLHIV. The aim of our study is to describe the future perspectives of sub-Saharan women living with HIV residing in France for more than 7 years, because it is the time required for the implementation of fundamental rights and social insertion. Do they plan to return to their country of origin after their retirement? Does the HIV infection force them to stay in France?Materials and MethodsProspective pilot mono-centric study. Between January and April 2014, every HIV-infected woman born in a sub-Saharan country, resident in France for at least 7 years, attending for their routine outpatient visit was consecutively included. Data were collected through a structured, semi-directed interview made by their usual hospital physician or social worker.ResultsConsecutively, 76 women agreed to participate to the interview, none refused. Mean age: 42 years [26–70], time since HIV diagnosis: 12 years [1–25]. HIV diagnosis was made before arriving in France for 3% of them; in 33% diagnosis was made in the year of arrival; diagnosis made several years after arrival in 63%. Even if 69% of these women had been irregularly residing in France for a period, all of them had obtained a regular situation for residence and 50% acquired the French nationality. Mean duration of residence was 15 years [7–33]. Two thirds of them are employed. In the future, although 50% plan to have a shared residence between France and Africa, only 20% of them plan to settle back definitely in Africa and no woman declared that she would look for a medical follow up in Africa for their HIV infection.ConclusionsThis study shows a good integration in France of HIV-infected sub-Saharan woman. Their links with Africa remain strong but very few plan to return in their country of origin due to lack of confidence in the African health infrastructures.