Legislative Proposals Research Articles

The Standards of Protection of Trans People Elaborated by the Court of Strasbourg and their Incorporation in the Recent Spanish Legislative Proposal

This article has two main purposes. On the one hand, it aims to systematise the progress made by the European Court of Human Rights (ECtHR) in the creation of common standards for the protection of trans people, in particular regarding rectification of one’s registered sex. On the other, it intends to verify to what extent said standards have been incorporated into the Draft Bill on LGBTI rights currently under discussion in Spain. To this end, it will analyse the Draft Bill from the standpoint of the case-law developed by the ECtHR on the matter. It will also make some critical reflections on this case-law from the standpoint of the rights it is set to protect.

Electoral appeal of climate policies: The Green New Deal and the 2020 U.S. House of Representatives elections

Climate issues widely feature in policy discussions, but it is not clear if voters reward politicians who champion climate policies. In some countries, candidates and parties with an explicit climate agenda have done well in elections (Switzerland and Germany being recent examples) while in other cases, voters have either ignored climate issues or punished candidates/parties for their climate positions (Australia, the U.K., and Canada). Focusing on the U.S. as a case study, we examine the electoral appeal of the Green New Deal (GND) legislative proposal which outlined a vision for a sustainable and equitable economy. Different versions of the GND policy idea have been adopted across the world. The GND was introduced in the US Congress in 2019 and was endorsed by 102 of the 232 House Democrats, but not by a single Republican. Our analysis finds an association between Democrats’ endorsement of the GND and a 2.01 percentage point increase in their vote share, even after controlling for the 2018 vote share. Unlike most western democracies, the U.S. is a laggard on climate issues. Yet, we find that U.S. voters reward legislators who advocate an ambitious climate policy agenda.

RETRACTED: Standards for ensuring the legality of covert activities in criminal proceedings through the prism of European Court of Human Rights

The subject of research is the implementation of covert activities in criminal proceedings through the prism of international acts, decisions of the European Court of Human Rights.The purpose of the work is to formulate common standards for ensuring the legality of implementing covert activities in criminal process through the prism of legal positions of the European Court Of Human Rights.The methodological basis or research isthe totality of general and special scientific methods of scientific cognition. The formal-legal (legal-technical) method was used to study the rules of law, to analyze the features of legal technique; and the hermeneutical method revealed the legal content of the norms, legislative proposals and defects in legal regulation. The statistical method helped to generalize judicial practice of ECHR. While building up the system of the standards for the ensuring the legality of implementing covert activities in criminal process we used the system-structural method.The main results and conclusions. The analysis of the legal positions of the ECHR made it possible to conditionally single out the following standards for ensuring the legality of the implementation of covert activity in criminal proceedings:– predictability. Its essence lies in the fact that the grounds, procedural order, conditions, timing, the circle of persons and crimes in relation to which it is allowed to carry out covert activities should be as detailed, clear and accurate as possible in the criminal procedural legislation. Moreover, any person had the opportunity to familiarize himself with the relevant regulatory prescriptions and foresee the actions that can be carried out in relation to him;– warranty against abuse. The content of this standard can be disclosed by more detailed highlighting of clarifying provisions ("substandards"). These include: control of interference in human rights and freedoms; the certainty of the circle of persons in relation to whom it is possible to carry out secret activities; limited corpus delicti, for the purpose of investigation or prevention of which covert activity is allowed; the existence in national legislation of procedures that facilitate the law of the implementation of covert activity in criminal proceedings; the temporary nature of the implementation of secret activities in the criminal process;– verifiability. The essence of this standard can be disclosed through the establishment of judicial control over the decision of the issue regarding the possible destruction of information obtained in the course of conducting covert activities, which is not relevant to criminal proceedings, as well as the requirement for the mandatory opening of decisions that were the basis for conducting covert investigative actions;– exclusivity. The main content of this standard is that covert activity in criminal proceedings can be carried out only in cases where the disclosure or prevention of a crime in another way is impossible or is too complicated;– proportionality of the intervention and its expediency. The essence of this standard is that the implementation of certain covert coercive actions that are associated with the restriction of human rights and freedoms must be proportionate to the goals for which such actions are directed. Moreover, these goals and the applied coercion must be necessary in a democratic society;– inadmissibility of tacit interference in the communication of some subjects. First of all, this requirement concerns the need to legislatively guarantee non-interference in communication between a lawyer and his client, a priest and an accused, etc., which means a ban on targeted control over the communication of certain subjects, as well as the obligation to destroy information obtained in the course of an accidental, situational interfering with their communication.

Reforming the Reception and Inclusion of Refugees in the European Union: Utopian or Dystopian Changes?

The provision of high‐quality reception conditions and the effective inclusion of refugees are permanent challenges in the implementation of the European asylum agenda. The EU legal framework for the reception of refugees has evolved over time through various legislative reforms, notably including those launched in 2016 and the New Pact on Migration and Asylum proposed in 2020. The European Union has also tried to reinforce its non‐binding integration policy with the adoption of the Action Plan on Integration and Inclusion 2021–2027. While this plan is intended to promote an alternative “social resilient” integration model for refugees that emulates community sponsorship in Europe, it also generates great bottom‐up expectations to provide better integration. These legislative reform proposals and their programmatic framework are theoretically intended to consolidate the European reception and integration system, but in practice have increased the dichotomous tension between utopia and dystopia. Drawing on a political interpretation of both concepts, this article critically analyses the real nature of the changes proposed in the legislative CEAS reforms and in the action plans. Both visions are useful to evaluate the desirability, viability, and achievability of these transformative changes in the future asylum system.

Relationship between Law Making Procedures and Bureaucracy in Modern India

Abstract : The study sheds light on bureaucracy and law-making procedure of India which is a developing country. The concept of bureaucracy refers to the administrative policy making group and non-elected government officials who contributed in creating laws and legislations in a country. Law making procedure is an important part of parliament which includes some specific steps for creating a particular law against some aspect. Several legislative proposals are brought to the parliament as bills based on which laws and legislations are created. It is important to receive approval for all the legislative proposals from the houses of parliament and the president of India for passing a law. Investigating the relationship between law making procedure and bureaucracy of India is the main focus of this following article. Secondary sources such as articles, journals, government reports and official government insights have played a crucial role in conduction of this research article. These sources help to collect more and more relevant information about the law-making process and bureaucracy in India. A few themes are created under which all the findings are evaluated with proper citation maintaining all the ethics. As a result, it is identified that bureaucrats play different crucial roles in law making procedures such as enforcing rules, implementing laws, setting disputes and others. Keyword : Bureaucracy, Bureaucrats, Indian Laws, Law Making Procedure, Legislations.

The Borders of the Law: Legal Fictions, Elusive Borders, Migrants’ Rights

Bordering processes take place through different means and are carried out by different actors. Laws and regulatory activities have a prominent place among border-drawing instruments: Their capacity to mobilise actors, allocate funds, and determine procedures and remedies make them a formidable and multifaceted bordering tool. It is therefore not surprising to notice that EU institutions have heavily relied on regulatory tools when the need to resort to new bordering processes emerged in the aftermath of the so-called migration crisis. This article delves into a particular (re-)bordering process emerging from the legislative proposals attached to the Commission’s 2020 New Pact on Migration and Asylum: the attempt to uncouple the duty to fully respect and protect fundamental rights from the reality of migrants’ presence on national territory. This objective is pursued by the proposed legislative package through non-entry fictions, capable of untangling the legal notion of “border” from its physical reality for the purpose of immigration law (only). The analysis of the relevant provisions provides the reader with a number of insights into the transformation of EU borders. First, borders (as defined by the law) are subject to a peculiar legal regime. Secondly, the legal notion of borders is increasingly independent of its physical/geographical correspondence. Thirdly, legal border lines are not linked to any place on the ground, but rather follow irregular migrants as they move, confining them to areas of less law, no matter their location.

Parliament

This overview highlights the Parliament’s (i) resolution proposing abolition of unanimity in Council; (ii) positive Opinion on Minimum Taxation Directive; (iii) resolution calling for Pandora Papers investigations and legislative measures; and (iv) push towards green transition legislative proposals.

Digital Globalization and Law

The regulation of social processes is part of a state’s sovereignty. States apply their law to shape and control social and economic conditions within their territory. Law as an instrument for coordinating human behaviour and for balancing colliding interests within the society is linked to human behaviour, either individually or within human organisations. The basic prerequisite for the existence of law is human interaction based on emotions, desires, and the pursuit of interests. Law and trust (interpersonal trust or system trust) are connected to each other. This leads to the assumption that law loses its relevance with a decrease of the relevance of trust. This article explores the question of which factors of current and future digitalisation could lead to a loss of the relevance of trust and of the relevance of the aspect of human behaviour as a connecting factor for legal norms. The article concludes that technological globalisation and ubiquity of the internet have already led to a loss of state territorial sovereignty. This has resulted in the diminution of system trust in law. The article further shows how digitalisation is pushing back the relevance of human behaviour and emotionality and, therefore, technicity is increasingly displacing law. The article describes the connection between deterritorialization and the development of new disruptive digital technologies and asks about the future role of ethics in the legal system of an advanced digitalised society. The development of concrete solutions and legislative proposals is subject to further studies.

The European anti-money laundering framework – At a turning point? The role of financial intelligence units

Last July, 2021, the European Commission presented a package of legislative proposals that aspires to radically change the EU anti-money laundering legal framework. This paper focuses on Financial Intelligence Units (FIUs) role and functions, and critically analyses the impact of on-going developments, taking into account international standards and the most recent studies and research. The overall conclusions show that many shortcomings remain and, in particular, how the accelerator is pushed excessively in the direction of increasing powers and too little in that of guarantees of FIUs independence and autonomy and of protection of individual rights.

Recodifying the Law: A Metalinguistic Inquiry into the Recodification of Belgian Law Between 2014–2019

Legal scholars attribute a great deal of importance to the linguistic dimension behind recodification. According to them, language contributes greatly to the improvement of both the accessibility and clarity of the law. Nevertheless, little research on the linguistic aspects of (re)codification exists within both linguistics and legal theory. Consequently, it seems worthwhile to study this linguistic dimension more in depth. To this aim, the recent legislative proposals to recodify various economic, civil and criminal codes in Belgium serve as a useful case study to improve our understanding of the linguistic challenges of recodification. In this article we will look at the linguistic comments made by the Belgian Council of State, a state organ which offers technical advice to the legislator, on the relevant proposals and consider (i) the type of linguistic comments made, and (ii), their implementation by the legislator. On the one hand, such an analysis allows us to single out the linguistic problems accompanying the Belgian recodification and, on the other, to elaborate on them with the help of the insights provided by legal theory. In doing so, we hope for our analysis to be a useful point of reference both for research on the Belgian recodification and other legal/linguistic approaches to recodification in general.

Supporting Success: ASTHO's Strategies for Reducing Maternal Mortality and Morbidity.

Supporting Success: ASTHO's Strategies for Reducing Maternal Mortality and Morbidity.

Analysis of the legislative proposals for amendments to the Penal Code Of Ukraine aimed to overcome the pandemic disease COVID-19, caused by Coronavirus Sars-Cov-2

Draft laws of Ukraine towards the amendments to the Penal Code of Ukraine aimed to overcome the pandemic disease COVID-19, caused by Coronavirus SARS-COV-2 are analyzed, namely: "On Amendments to the Penal Code (concerning the criminal liability for violation of the established procedure for vaccination of citizens against infectious diseases)" registration № 4647 26/01/2021 and "On Amendments to the Penal Code of Ukraine in terms of liability for forgery of documents about preventive vaccination" registration № 6084 23/09/21.
 Some disadvantages of the following drafts are identified: 1) importation into Ukraine of a vaccine not registered in the State Register of medicine products is currently considered as an illegal activity; 2) placing into turnover of an unregistered medical product is a falsification and entails criminal liability under the provisions of the current article 321-1 of the Penal Code of Ukraine. Therefore, it makes no sense to criminalize actions of this nature; 3) the level of public danger of the proposed criminal offense (Article 321-3 of the Criminal Code of Ukraine) is not sufficient for the existence of the sanction Part 1 – imprisonment and its classification as "minor crimes"; 5) establishment of separate (special) criminal liability for forgery of documents related to preventive vaccinations is an excessive criminalization; 6) introduction of the proposed criminal offense (Article 321-3 of the Penal Code of Ukraine) to Section XIII "Criminal offenses in the sphere of drugs, psychotropic substances, their analogues or precursors and other criminal offenses against public health" Special part of the PenalCode of Ukraine does not take into account principles of the existing criminal law doctrine on delimitation and definition of the object of criminal law protection.
 The inexpediency of detailing the forms of the objective side of the proposed criminal offense (Article 321-3 of the Penal Code of Ukraine) by introducing the concepts of "dissemination" and "implementation", as well as the introduction of a broader understanding of the term "use" as a «violation of a prohibition to use (sales and implementation ") is established;
 The ways to overcome the identified disadvantages and improve the norms of the analyzed bills are pointed out. It is concluded that it is impossible to adopt amendments in this form to the Penal Code of Ukraine.

Gender equality and artificial intelligence in Europe. Addressing direct and indirect impacts of algorithms on gender-based discrimination

This article assesses whether current European law sufficiently captures gender-based biases and algorithmic discrimination in the context of artificial intelligence (AI) and provides a short analysis of a draft EU legislative proposal, the Artificial Intelligence Act. To this end, current trends and uses of algorithms with potential impacts on gender will be analysed through the lens of direct and indirect impacts for gender equality law, highlighting the implications for European gender equality enforcement. This article concludes that legislative and accompanying policy measures are necessary to ensure an effective gender equality policy and to avoid algorithmic discrimination.

Effects of Railway Market Liberalisation: European Union Perspective

Network activities are an essential part of the economy. They represent services of general economic interest and include electronic communication, electricity, postal and railway services. At the end of the 1980s, the European Commission brought forward legislative proposals to open the monopolistic service markets of general economic interest. In that way, states would prepare the legislation to liberalise services, and state-owned monopolistic enterprises would adapt to the new conditions in the market. State-owned railway companies were megalomanic, exerting a triple role of managing the railway infrastructure and service facilities and providing railway transport services. In the early 1990s, the European Union (EU) adopted new legislation that would open the railway freight transport market. This initiated a new era of the railway. Separation of the functions within state own monopolistic companies into infrastructure management and railway undertakings quickly became a reality, paving the way for new railway freight operators. EU directives are implemented differently throughout the EU, which leads to various solutions. We have analysed various scientific and professional sources to understand better different correlations between the traffic parameters of the railway freight transport market. The key parameters were: (1) number of new undertakings, (2) ton-kilometres, (3) infrastructure charges and (4) quantity of transported goods. This paper researches the current state of the railway freight transport market and aims to define the shortcomings in the analyses of the impact of railway liberalisation on freight transport. Our research pointed out the need for seeing a broader picture of state interventions and infrastructure manager independence in the context of preventing market marginalisation. In addition, we have concluded that a number of the new undertakings is not a crucial parameter for understanding the railway freight transport market.

On the path to the future: mapping the notion of transparency in the EU regulatory framework for AI

ABSTRACT Transparency is the currency of trust. It offers clarity and certainty. This is essential when dealing with intelligent systems which are increasingly making impactful decisions. Such decisions need to be sufficiently explained. With the goal of establishing ‘trustworthy AI’, the European Commission has recently published a legislative proposal for AI. However, there are important gaps in this framework which have not yet been addressed. This article identifies these gaps through a systematic overview of transparency considerations therein. Since transparency is an important means to improve procedural rights, this article argues that the AI Act should contain clear transparency obligations to avoid asymmetries and enable the explainability of automated decisions to those affected by them. The transparency framework in the proposed AI Act leaves open a risk of abuse by companies because their interests do not encompass considerations of AI systems’ ultimate impact on individuals. However, the dangers of keeping transparency as a value without a legal force justify further reflection when regulating AI systems in a way that aims to safeguard opposing interests. To this end, this article proposes inclusive co-regulation instead of self-regulation so that impacted individuals as well as innovators will be empowered to use and trust AI systems.

‘Bigger’ after all? The Effect of Structural Policy Coordination Authorities on the Multidimensionality of Policy Output

AbstractTo be ‘bigger on big things’, Jean‐Claude Juncker reformed the European Commission's organizational set‐up by adding another hierarchical layer to its political sphere. Vice‐Presidents shall foster coordination between departmental Commissioners when drafting policies so that these are more multidimensional in kind. Taking an actor‐centred organization theoretical perspective, complemented by principal–agent reasoning, we conceptualize these as structural policy coordination authorities. We hypothesize that this organizational manipulation to a core executive's typical multidivisional set‐up incentivizes silo‐focused actors to coordinate more across policy sectors. Hence, the coordination dilemma that typically confronts core executives might be counteracted, resulting in more multidimensional policy output. Constituting a ‘case in time’, we assess whether Commission policy output has changed systematically after the Juncker reform. Using newly developed indicators for policy multidimensionality, we evaluate all legislative proposals developed under the Juncker and Barroso II Commissions. We find that proposals under Juncker are indeed ‘bigger’ than before.

AI Use in Criminal Matters as Permitted Under EU Law and as Needed to Safeguard the Essence of Fundamental Rights

In this article we shall attempt to systematically chart the curent AI legislation, as well as the most important proposals for legislation at the level of the EU and to point the clashes and common ground with some of the major aspects present in criminal law that are linked with the protection of the essence of fundamental rights. The image of man as a natural prey to suggestion and influence has made some believe that artificial intelligence represents the proper solution for ensuring not only impartiality in a justice system, but also efficiency. This encouraged a relatively uncomplicated view on the AI applications that would facilitate the work of police and judicial authorities through identification, data management, facial recognition, crime prevention and risk assessment. Underpinning this reassuring hope is the concern for the protection of the essence of fundamental rights. Anchored in the practical examples arriving via the professional experience of magistrates, the use of AI can have adverse effects, undermining fundamental rights, such as the right to non-discrimination, the right to protection of personal data and to a private life, the right to freedom of expression, and the right to a fair trial given the increased risk of reproducing bias and perpetrating discrimination, not to mention the ability of criminals to make use of it for their own illegal purposes. Assumptions on the interaction of AI and the essence of fundamental rights start from the very nature of man and the structure of society and the EU legislator has tried to gather all of these essential elements under the roof of a limited number of policies and legislation instruments.

Release from Punishment under the Draft New Criminal Code of Ukraine

Reforming criminal law leads to the emergence of new or improvement of existing legal institutions, which actualizes the conduct of thorough research. The purpose of the article is seen in the definition of the author’s vision of the model of the institution of release from punishment in the draft of the new Criminal Code of Ukraine. To achieve this goal using historical and legal, comparative, dialectical, systemic, hermeneutic and other methods, we critically analyzed national and foreign legislation, doctrinal provisions, and highlighted the proposals for the draft of the new Criminal Code of Ukraine.According to the results of the study, the main novelties of reforming the legal institution of release from punishment are substantiated. The considerations guided by the working group on the development of the new criminal legislation in formulating new legislative provisions are given. The necessity of changing the terminology of the institute of release from punishment is proved. The expediency of enshrining in the legislation new sub-institutions of the institute of release from punishment is substantiated: non-sentencing; non-execution of the sentencing; deferral of execution of sentencing; suspension of execution of punishment. Arguments concerning expediency of optimization of the system of types of release from punishment are resulted. It is argued that the institution of release from criminal liability is inconsistent with the principle of presumption of innocence. In this regard, the expediency of transforming this legal institution into an institution of release from punishment has been proven. The ways of systematization of types of release from punishment provided in the legislation of the criminal block are defined. The types of release from punishment have been systematized taking into account the stage of criminal proceedings. The way of solving the problem of ensuring the system of external relations of the system of types of release from punishment within the legislation of the criminal bloc is highlighted. A new vision of amnesty and pardon regulation is proposed.The urgency of improvement in the new legislation of legal regulation of the types of release from punishment tested in practice is argued: in connection with the expiration of the statute of limitations; release from serving a probation sentence; parole.Demonstrated as positive obligations of the state in the field of human rights have influenced the design of provisions on exemption from punishment for illness, parole, amnesty. Legislative proposals have been made to settle the issue of early release of convicts sentenced to life imprisonment.

Questioning and Disputing Vaccination Policies. Scientists and Experts in the Italian Public Debate

Most literature about vaccine hesitancy has been focused on parental attitudes. Less attention has been devoted to both scientists and experts (general practitioners, pediatricians, health care professionals and science journalists) who raise criticism about immunization policies and intervene in the public debate. This consideration aims to balance the current emphasis in the literature on parents’ attitudes about vaccination, offering a complementary angle to reframe and widen the controversy. Focusing on scientists and experts (who can shape and feed parents and people's attitude), an unattended complex picture of multiple attitudes towards vaccines and vaccinations has been discovered through a qualitative content analysis (QCA) of texts (appeared in the Italian press, TV and pop-science books) related to the harsh public debate, held between March 2017 and November 2018, triggered by the legislative proposal of making ten vaccinations mandatory for children. Unlike oversemplications that misleading dichotomies (such as orthodox and heterodox positions, Western science / Western medicine versus alternative medicine) reproduce, the analysis reveals nine different positions along the continuum of immunisation attitudes, ranging from radical acceptance of vaccinations (both compulsory and recommended) to radical rejection, which constitute a fuzzy set. Consequently, a twofold reality emerges: on the surface, the conflict seems between pro-vaxxers versus hesitant, pro-choice and anti-vaxxers; beneath it is amid standardized versus a varieties of contextual and personalised approaches to health.

Reflections on the proposals of the European Commission for a digital tax

Digitalisation leads to significant changes in many areas of the economy. Chancellor Angela Merkel believes that the increasing collection and the use of consumer data associated with digitalisation is creating fundamental justice problems. The public debate focuses on the taxation of international digital companies. Facebook and other Internet giants make high profits in Europe, but they are hardly taxed there. In the opinion of many politicians, this is unacceptable - but it complies with the applicable standards of the international tax system. The current corporate tax rules are built on the principle that profits should be taxed where the value is created. The tax rules were mainly conceived in the early 20th century for traditional businesses. They define what triggers a right to tax in a country ("where to tax") and how much of corporate income is allocated to a country ("how much to tax") largely based on having a physical presence in that country and without reflecting the value created by user participation. That means that non-residents for taxation purposes become liable to tax in a country only if they have a presence that amounts to a permanent establishment there. The Commission has made two legislative proposals in 2018. The new rules would ensure that online businesses contribute to public finances at the same level as traditional 'brick-and-mortar' companies. 1. A digital platform will be deemed to have a taxable 'digital presence' or a virtual permanent establishment in a Member State if it fulfils certain criteria. 2. The European Commission intends to introduce a 3% tax on sales through the sale of user data, the provision of online advertising and the provision of online marketplaces. The tax will apply to companies with a total turnover of EUR 750 million worldwide and a digital turnover of EUR 50 million in the EU. The digital tax raises various questions about the justifications. Especially for the export nation Germany, it could turn out to be a dangerous boomerang.