Protection Of Constitutional Rights Research Articles

The influence of socio-economic factors on the formation of administrative-tort and criminal policy of the government

Poor forecasting of the results of improving administrative and criminal legislation in terms of criminalization / decriminalization of criminal acts, imperfection of the administrative-tort and criminal policy of the state leads to the assumption of unjustified criminalization of similar socially dangerous acts, the establishment of excessive administrative and criminal law prohibitions on the implementation of certain activities, as well as to incorrect decriminalization of previously established criminal law prohibitions. The study of the influence of socio-economic factors on the formation of the administrative-tort and criminal policy of the government, acting as interrelated parts of a single punitive-legal policy, is due to the need to identify the directions of its implementation, the result of which is a change in administrative and criminal legislation. The analysis of the current administrative and criminal legislation, the systematization of the theoretical provisions of the problems of criminalization / decriminalization of acts, comparison of the factors that act as their causes, made it possible to identify the grounds for the legislative changes, which include: the emergence of new types of socially dangerous human activities; unfavorable dynamics of certain types of human behavior dangerous to society, which were regulated in administrative legislation or were not considered at all as offenses; the need to strengthen the protection of constitutional rights and individual freedoms; mistakes of the earlier decriminalization of criminal acts.

In Search of Lost Latin-American Colours: an Analysis of the Constitutional Protection of LGBTI Rights in Latin America

This study investigates the constitutional protection of LGBTI rights in South America and Mexico. Under the theoretical framework of Nancy Fraser’s postwestphalian democratic justice, it questions whether the constitutional protection of these rights in such countries is satisfactory in order to move forward towards the accomplishment of justice to LGBTI persons. The research conducts an empirical study and undertakes a qualitative analysis using the techniques of literature review, documental analysis, and survey. Among the results, it was determined that only two of the analysed constitutions expressly prohibits both sexual orientation – and gender identity-based discrimination. Only one of them uses gender-neutral language in the provision regarding civil union and, therefore, enables the union between two people of the same gender. Under another perspective, the answers of the majority of the Latin-American organizations in the survey indicated that the constitutional protection of LGBTI rights is unsatisfactory in their countries. Therefore, after the analysis of all the data obtained in the research, it was possible to conclude that the constitutional protection is precarious and does not guarantee the most basic rights to LGBTI population.

Directions of improvement of normative regulation of judicial status of investigating judge

The article deals with legal regulation of the procedural status of an investigating judge. The author examines the standards that are formulated in the relevant international legal acts, in the practice of the ECHR, in the positions expressed by European experts, and relates to the activities of an investigating judge. They are classified into three groups: (a) Standards defining as a whole the requirements for the place and role of the court in the implementation of criminal justice, and therefore extend to all judicial functions, including judicial control function; b) standards defining the requirements for the organization and implementation of the judicial control function at the stage of pre-trial investigation; c) standards that determine the requirements for observance of human rights and freedoms, and thus serve as guiding points for subjects exercising judicial control powers. Standards defining in general the requirement for the place and role of the court in the implementation of criminal justice (such as the availability of justice, binding judgments, fair trial, due process hearing, equality before the law and the court, parties’ competition, transparency of the judicial system etc.), as well as standards that define requirements for the observance of human rights and freedoms (such as the right to liberty and security of person, the right to respect for private life, the right to protection, etc.) have already been sufficiently studied at the level of special investigations. The subject of this study is international standards, which determine the requirements for the organization and implementation of judicial control at the stage of pre-trial investigation. The author examines the standards of protection of constitutional rights by the court, a standard for clearly demarcating the role of investigator, prosecutor and investigating judge in order to ensure real competition at the stage of pre-trial investigation; the standard of the materiality of the right of restriction; standard of urgency of judicial control; the standard of the prohibition of the participation of an investigating judge in the examination of the merits. Key words: standards of activity of an investigating judge, judicial control powers, judicial control, the investigating judge.

Judicial administrative procedural law v. administrative judicial law

The subject. The paper deals with the search for the place of judicial procedural law in the system of Russian law. The purpose of the paper is to identify is the judicial procedural law an independent branch of Russian law. Methodology. The author uses the methods of analysis and synthesis, as well as dialectic approach. The formal-legal interpretation of the Code of Administrative Proceedings, the Code of Administrative Offences, the Commercial Procedure Code, the Civil Procedure Code of the Russian Federation and is also used. The main results and scope of their application. The adoption of the Code of Administrative Proceedings in Russia in 2015 revealed many problems in science and legislation. A legislative decision to adopt the Code of Administrative Proceedings is considered as a political decision taken without a proper scientific basis and contrary to established scientific doctrine. Definitions of such basic concepts as administrative process, administrative dispute, administrative justice, and others have not been developed in the period up to 2015 and to date, There is a mention of administrative legal as one of the types, along with civil, criminal and constitutional types of legal proceedings, in the Constitution of the Russian Federation. But procedural legislation is referred to the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation, in contrast to other procedural laws, in the Constitution of the Russian Federation. Representatives of the science of civil procedural law, with reference to legal theorists, called judicial procedural law (which is referred to the Code of Administrative Proceedings) the secondary formation, a sub - branch of the fundamental (profiling) branch of civil procedural law. The purpose of judicial procedural law – enforcement of substantive law and conflict resolution in the field of and other public relations. It is noted that the public-legal dispute is not limited to the interaction of the citizen with the executive power. Civil procedural regulation of judicial review of cases arising from public relations is a procedural mechanism of judicial protection of constitutional rights, freedoms and legitimate interests. The Code of Administrative Proceedings lowers the status of cases arising from public legal relations to the status of cases arising from legal relations. Representatives of the science of law and procedure, on the contrary, believe that the adoption of the Code of Administrative Proceedings becomes the final act in the formation of a new branch of law – judicial law, although it is a political decision and it’s rules are practically copied from the Civil Procedure Code. At the same time, it is recognized that the Code of Administrative Proceedings needs scientific support, which still needs to be created. An alarming factor is the fact that some scientists propose to include cases concerning imposition of sanctions in the this forming branch of law, although it mixes in fact disputes between individuals and a public entity and imposition of sanctions to the offender by the court. Conclusions. It is premature to say that judicial procedural law has emerged as an independent branch of Russian law. Prospects for further development of proceedings are very uncertain due to the high proportion of subjective, political factors in the legislative process.

A Review on Protection of Constitutional Rights to Education of Foreigners: Status and Challenge

A Review on Protection of Constitutional Rights to Education of Foreigners: Status and Challenge

The Devil in the Detail: Mitigating the Constitutional & Rule of Law Risks Associated with the use of Artificial Intelligence in the Legal Domain

Over the last decade increased emphasis has been placed on the role that artificial intelligence (AI) will play in disrupting the practice of law. Although considerable attention has been given to the practical task of designing a computer to ‘think like a lawyer’, a number of related issues merit further inquiry. Of these, the risks that AI presents to the constitutionally protected procedural and substantive dimensions of justice deserve particular attention. In this paper, we consider the public and private application of AI in the administration of justice and the provision of legal services. We observe that the imposition of AI in certain legal contexts and settings has the potential to silence discourse between actors and agents, subvert the rule of law, and directly and indirectly threaten constitutional rights. In substantiating these observations, in Part I we begin by contextualizing recent developments in legal technology. Tracing the evolution of rule-based AI approaches through to modern data-driven techniques, in Part II we explore how AI systems have sought to represent law, drawing on the domains of: (a) judicial interpretation and reasoning; (b) bargaining and transacting, and; (c) enforcement and compliance, and we illustrate how these representations have been constrained by the AI approach used. In Part III we assess the use of AI in legal services, focusing specifically on implications that are posed in respect of the protection of constitutional rights and adherence to the rule of law. Finally, in Part IV we examine the pragmatic challenges that arise in balancing the risks and rewards of AI technologies in the legal domain, and we consider the issues that should shape and that are likely to shape use. We conclude by proposing the development of a ‘rule of legal AI’ designed to solidify the shared values that ought to govern future development in the field.

The Essentials of the Protection of Constitutional Rights of Indigenous Legal Community in the Management of Customary Forests in South Sulawesi Province, Indonesia

The Essentials of the Protection of Constitutional Rights of Indigenous Legal Community in the Management of Customary Forests in South Sulawesi Province, Indonesia

Non-Judicial Constitutional Interpretation: The Netherlands

The Netherlands merits attention as one of the shrinking number of countries that continue to resist assigning principal responsibility to the courts for ensuring constitutional supremacy. Responsibility for evaluating the constitutionality of legislation is instead entrusted to both houses of parliament, ministerial bureaucracies, the Council of State, quasi-autonomous entities, and civil society as well as the courts. A case study of the Netherlands yields several important insights into the practice of constitutional interpretation. First, judicial review of legislation is not essential to the success of liberal democracy or the protection of constitutional rights. The absence of judicial review has not led to anything resembling constitutional failure or underenforcement in the Netherlands compared to other liberal democracies. Second, while an institution like the Council of State may not exist or operate in identical form elsewhere, one encounters functional equivalents that can provide ex ante advice on the constitutional implications of potential legislation. The reality across all constitutional democracies is that responsibility for constitutional interpretation is shared across multiple institutions, including the executive writ large and non-partisan bodies. Third, and following from the previous point, this sharing of interpretive responsibility across multiple institutions means that some form of what we might call inter-institutional dialogue is unavoidable. To be sure, the legislature and the executive may not always play the starring role in constitutional interpretation, as they do in the Netherlands. But even in countries with strong courts that assertively perform constitutional review, they are always a part of the picture.

Building an Effective System of Protection of Citizens’ Rights as the Main Task of Judicial Reform in Russia

The most productive interstate security measure of the violated rights of citizens is their judicial protection realized in the Russian Federation by means of the constitutional, civil, administrative and criminal legal proceedings. In this regard some issues concerning creation of effective system of protection of citizens’ rights are considered as one of the directions of the judicial reform undertaken in the Russian Federation. On the basis of the analysis of judicial statistics it is noted that constitutional justice as the highest form of constitutional control is an effective possibility of protection of constitutional rights and freedoms by citizens themselves. The importance and value of the Constitutional Court of the Russian Federation and the constitutional (authorized) courts of subjects of the Russian Federation in the mechanism of control activity are emphasized. To increase efficiency of protection of human rights, improve the judicial system, strengthen the quality of operation of offices of courts, the authors make suggestions for improvement of the current legislation.

Awareness on Constitutional Rights of Citizens and Form of Protection of Constitutional Rights of Citizens in Indonesia

In the Constitution of the Republic of Indonesia of 1945 Article 1 (3) explicitly states that Indonesia is a State of Law. One element that is owned by the state law is the fulfillment of basic human rights as expressed by Friedrich Julius Stahl. Efforts to achieve a constitution that can follow the progress and will meet the basic human rights, the constitution must have a dynamic aspect and were able to capture the phenomenon of historical change, so as to make it as a constitution that is always alive. Only problem is the performance of the Government as the executor of the constitution (executive, legislative and judicial) still do not provide justice and satisfaction for those seeking justice, therefore the necessary awareness of constitutional rights of citizens in Indonesia. Efforts to protect the constitutional rights of Indonesian citizens can be done through the court and non-court lines, and can also via maximize the role of the Constitutional Court to extend its authority. The expansion of the authority of the Constitutional Court may be to accommodate Constitutional Complaint and Constitutional Question.Keywords: Awareness; Constitutional Rights; Form of Protection.

Universal coverage and effective access to health care: What has happened in Colombia ten years after Sentence T-760?

Public health policy in Colombia has been guided by the purpose of achieving universal coverage. Law 100 of 1993 set the goal of guaranteeing access to health services for the entire population, at all levels of care, with a plan of equal benefits for all. Despite this promise, universal coverage was not achieved in the year 2000 as established, and there have been barriers to effective access. In consequence, citizens have resorted to tutela (writ for the protection of fundamental rights) as a mechanism by which judges protect the right to health. In 2008, amidst an overwhelming growth in the number of actions for immediate protection of constitutional rights, the Constitutional Court issued Sentence T-760, by which health was recognized as a fundamental right and ordered several State agencies to guarantee its effective enjoyment and enforce universal coverage and effective access. After ten years, compliance with these orders is medium, with important advances in terms of coverage and equalization of the benefits plan, but there are still barriers to access and concerns regarding sustainability and the flow of resources.

PROTECTION OF CONSTITUTIONAL CULTURAL RIGHTS AND FREEDOMS OF CITIZENS BY THE CONSTITUTIONAL COURT OF UKRAINE

The aim of the article is to explore the place and role of the Constitutional Court of Ukraine in the mechanism of constitutional cultural rights and freedoms protection within the context of Ukrainian constitutional justice reforming. The subject of research is the protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine. Methodology. Scientific research is based on the use of philosophical, general, and special scientific methods and techniques of scientific cognition. The dialectic method allows examining the phenomenon of protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine within the dynamics of its evolution and interaction with other legal concepts. The systemic method made it possible to present the mechanism of protection of constitutional cultural rights and freedoms of citizens as a combination of interrelated elements. The formal-legal method was used to analyse the regulatory framework of protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine along with relevant decisions of this judicial body. Results obtained upon completion of the research give an opportunity to claim that the protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine may be performed on the basis of both direct and indirect access of persons to the constitutional jurisdiction body through the regulatory compliance assessment (constitutional recourse and initiation of legal action by certain state power bodies and its officials through constitutional claim filing). Practical outcomes. Research provides: examination of doctrinal and applicable aspects of the Constitutional Court of Ukraine activity on the protection of constitutional rights and freedoms of citizens; characteristics of general theoretical essence of constitutional cultural rights and freedoms of citizens with distinguished types; analysis of peculiarities of protection of constitutional cultural rights and freedoms of citizens by the Constitutional Court of Ukraine in the course of its powers exercising. Value/originality. On the basis of a comprehensive study of constitutional doctrine, Ukrainian legislation and implementation practices certain proposals are elaborated regarding the improvement of the effectiveness of the Constitutional Court of Ukraine activity in the area of protection of constitutional cultural rights and freedoms of citizens.

EXPLORING THE FULL LEGAL PROTECTION OF REFUGEES AND ITS LIMITATIONS WITH REFERENCE TO NATURAL AND POSITIVE LAW

This article seeks to explore the limitation of the theory of full legal protection by illustrating with facts that the theory does not lack legal force, but rather that various concepts such as citizenship, national security, sovereignty, affirmative action, legal positivism, and democratic governance severely limit the application of theory. In particular, the limitation of full legal protection is analysed through the lens of legal positivism and the natural law doctrines whereby it is argued that the laws of South Africa are framed in the context of legal positivism which does not take cognisance of the moral values on which the natural law doctrine is based. As a result, the full legal protection of constitutional rights of refugees remains in theory. In order to convert this theory into an effective protection, it is argued that although the state has the power inherent in its sovereignty to design and frame laws as it deems best, South Africa should, with the natural law in mind, develop social transformative or remedial measures in such a way that extends constitutional socio-economic rights to refugees in a more favourable way. The article concludes by suggesting the manner in which the severe limitations imposed on the concept of full legal protection can conceptually and rationally be addressed.

Protection of constitutional rights to liberty and security of person in the Penal Code 2015 of Vietnam

By referring to the International Conventions on Human Rights, The Constitution of the Socialist Republic of Vietnam of 2013 and the Resolution of the Communist Party of Vietnam on judicial reform, the article points out that the right to liberty and the security of person are human rights and citizenship rights which are protected by Vietnamese law. This is also the basis for the article to evaluate the protection of liberty and personal security provided by the provisions of the Vietnam Penal Code of 2015, revised in 2017. As a result, the article proposes solutions to further improve the criminal policy and the Penal Code regulations towards strengthening the protection of human rights in general, the right to liberty and the security of person in particular. The approach and legal basis of this study is a human rights based approach, centered on human rights to evaluate and propose solutions to the issues. With this approach, the article adopts the general standards of personal freedom and security in international law as the basic criterion for evaluating and proposing amendments of Vietnamese criminal law regulations on protecting the liberty and personal security. In the process of this study, specific research methods were used including the synthetic method, the analytical method and the comparative method. These methods are used to: synthesize the views, awareness of the need to protect freedom and personal security by criminal law; analyze the contents of the relevant regulations in the Vietnamese criminal law; compare with international law standards and crime statistics to assess the suitability and effectiveness of these regulations in Vietnamese criminal law.

Реализация и защита конституционных прав и завоеваний демократии в эпоху новой промышленной революции

Реализация и защита конституционных прав и завоеваний демократии в эпоху новой промышленной революции

Peran Mahkamah Konstitusi Dalam Mewujudkan Negara Hukum Yang Demokratis

The Constitutional Court is the state agency that was born after the reform in 1999. Through the changes to the Constitution of 1945, the Constitutional Court is authorized to examine laws (acts) against the Constitution. In addition there are other powers to protect the fundamental rights relating to the constitutional rights of citizens. As a state agency has the authority of the Constitutional Court, among others, as the supreme interpreter of the constitution in addition to realizing the democratic government, the Constitutional Court to act as the guardian of democracy, protection of constitutional rights of citizens and the protection of human rights.Key words: the rule of law, democracy, constitutional court

THE DISPUTE RESOLUTION MODEL OF VILLAGE HEAD ELECTION THROUGH NON LITIGATION

Article Number 6 of 2014 clauses 37 verses (5) and (6) provides that the regent in the district must resolve the dispute over the election result of the village head within 30 days. At the district level, the Regional Regulations governing the settlement of village head election disputes and regulations are effective in the dispute profession.However, the laws and regulations at the local / district level have not yet clearly defined the form / format of the outcome of the dispute over the election of the village mayors. The specific purpose of this research is to formulate the model form in the effort to solve the disputes of Village mayors Election by doing syncretism of existing strategy. The Urgency of this research that is (a) need to build juridical system in handling dispute of village head election; (b) the synchronization of district regulations governing the handling of village head election disputes both vertically and horizontally (c) needs a dispute resolution strategy by developing a model of settlement that provides protection of constitutional rights and ensures that government agenda.Research activities in Jember, Bondowoso and Lumajang districts, with a total sample of 150 people. Data collection techniques use Participatory Action Research (PAR) and Focus Group Discussion (FGD) methods. The Data analysis technique using qualitative analysis.The result of this research is the policy of settlement of disputes of village head election is set forth in juridical instrument at local level, result of settlement stated in peace agreement.This Agreement is then submitted to the Court for the issuance of the Deed of Peace in order to ensure the validity of the legal force for the parties.

The Supreme Court by Ruadhán Mac Cormaic (review)

by removing the requirement of physician authorisation. For those who are open to a serious reflection on the issues at stake in abortion, from the moral status of prenatal life to the real conditions for women’s autonomy and the actual experience of what is taking place in the British and Dutch abortion clinics, this book offers a mine of relevant sources of information. It offers an argument which does not conceal its commitments but clearly lays out its premises and conclusions. Unlike many other publications on this fraught topic, it is not polemical. It does not attempt to persuade by shock or horror stories, or by vilifying opponents on the other side of the argument. Above all, it acknowledges the complexity of the issues and the need to consider the great range of factors in coming to a judgment about induced abortion and what might be done to reduce its occurrence. Patrick Riordan SJ teaches in Heythrop Institute for Religion and Society, Heythrop College. The Supreme Court, Ruadhán Mac Cormaic (Dublin: Penguin Ireland, 2016), viii+456 pages. In Ireland, the Supreme Court has the ultimate power to declare legislation unconstitutional. Viewed positively, this helps to ensure that our political community holds itself to shared fundamental values. Viewed negatively, it allows a small unrepresentative elite to impose its values on the rest of society. Either way, the Supreme Court is a significant constitutional and political actor. Constitutional theorists grapple with the moral questions raised by this power of judicial review. Can such an apparently undemocratic practice ever be justified? How should the Constitution be interpreted? When is self-restraint on the part of judges required? But there are equally important questions about who exercises this power and how they do so. Ruadhán Mac Cormaic’s excellent book sheds light on these questions. The Supreme Court is not a constitution-drafter: it does not sit down to write constitutional law. Rather, the court makes constitutional law through deciding cases. Citizens hire lawyers to take cases challenging state actions, the state responds and the court decides. But this linear account oversimplifies : sometimes it is lawyers and lobby groups who seek citizens to take cases, rather than the other way around. Occasionally, the court sends signals Studies • volume 106 • number 422 233 Summer 2017: Book Reviews to lawyers about the sorts of law it might make in the future, prompting the search for appropriate litigants. The state does not simply react to decisions of the court but rather attempts to tailor its actions in anticipation of those decisions. The court is acutely conscious of how the state and broader community will respond to its decisions. The Supreme Court therefore exists in a complex web of mutually regarding personal relationships, all parties shaping their own actions in response not only to the actions of others but also to the anticipated actions of others. Mac Cormaic’s book brings this story of mutually regarding relationships to life. The book takes a broadly chronological approach, starting with the foundation of the state in 1922. The early chapters address the emergence of the Irish Free State, de Valera’s dismantling of the constitutional relationships with the United Kingdom and the enactment of the new Constitution in 1937. The Irish Free State Constitution proved an unsatisfactory document in many ways. For nationalists, it was tainted by the British influence on both its content and mode of enactment. A more practical problem was that any provision, other than those required by the Anglo-Irish Treaty, could be amended by legislation of the Oireachtas. This rendered the Constitution largely ineffective for the protection of constitutional rights, since the Oireachtas could circumvent any judicial interpretation simply by enacting new legislation to amend the Constitution. Mac Cormaic’s narrative highlights how, in contrast to the fragility of the 1922 Constitution, the new court system of the Irish Free State proved remarkably robust and durable. With the Supreme Court at its apex, this court system has existed in more or less the same form to the present day (p.24). The scope for judicial activism was initially limited by the constitutional fragility of the Irish Free State and a conservative judicial...

Social networks as one of the instruments of accumulation and illegal use of personal data of citizens

It is well known that in recent years, social networks have ceased to be exclusively a tool for communication. Every day, millions of users around the world provide information (including personal data), which at any moment can be used either against them or, in certain circumstances, to the detriment of national interests. Especially sharply delineated issues raised for our country in terms of its actual stay in a state of undeclared war.However, attention should be paid to the fact that a significant part of the personal data of users of social networks reported voluntarily. Most social networks involves placing personal page on name, date of birth, gender, place of birth (residence) place of study / work, office, information about family position, information on parents, brothers / sisters, children and so on. In most, the user account contains different statistical characteristics of his stay in the system, date, time and duration of the last entry and stay in the system, the address used when connecting a computer and more.We can conclude that each page of a user’s social network – is readily available and relatively unlimited archive of his personal data.The issue of preserving a secret personal given users is important and requires its further scientific development. Given the need to ensure adequate protection of constitutional rights and national interests from illegal encroachments, within the framework of the planned measures provided for by the Decree of the President of Ukraine №32 / 2017 «On the decision of the National Security and Defense of Ukraine of 29 December 2016» On the state and threats cyber security urgent measures to neutralize them», it seems necessary at the highest state authorities to take immediate steps for the development of innovative approaches to protecting the interests of individuals, society and the state in the information sphere.

Tajemnica adwokacka jako gwarancja ochrony konstytucyjnych praw jednostki

Tajemnica adwokacka jako gwarancja ochrony konstytucyjnych praw jednostki