Protection Of Fundamental Rights Research Articles

Balancing Governance and Rights: The Interplay Between Constitutional and Administrative Law

This paper explores the intricate relationship between Constitutional and Administrative Law and their combined impact on the governance and administrative capacity of a state. It delves into the foundational principles of Constitutional Law, such as the separation of powers, the rule of law, and the protection of fundamental rights, which provide the framework for democratic governance and the safeguarding of individual liberties. Concurrently, it examines the Administrative Law framework, focusing on the regulatory powers and procedural mechanisms that govern the activities of administrative agencies. A significant portion of the analysis is dedicated to the dynamic interplay between these two branches of law, emphasizing how constitutional mandates guide administrative actions and ensure adherence to principles of justice, equity, and transparency. The discussion extends to the mechanisms of legislative oversight, executive control, and judicial constraints, highlighting their roles in maintaining a balance between efficient governance and the protection of individual rights. Through this comprehensive examination, the paper sheds light on the essential balance that must be struck to ensure that governance mechanisms are both effective and respectful of the constitutional values that underpin democratic societies.

Public Perception of the Impact of Technological Challenges on Human Rights in Indonesia

This qualitative research investigates public perceptions of the impact of technological challenges on human rights in Indonesia. Through in-depth interviews with 15 participants from various backgrounds, this research explores the perceived benefits and challenges of technology, attitudes towards government regulation, and trust in technology companies. The findings reveal a nuanced understanding of the intersection of technology and human rights, highlighting concerns about privacy, freedom of expression, and corporate accountability. While technology offers opportunities for empowerment and connectivity, it also carries risks such as data breaches, online censorship and the digital divide. This study underscores the importance of balancing innovation with the protection of fundamental rights and calls for transparent, accountable and ethically responsible practices in the digital realm.

Compatibilty of Albanian Legislation with European Union – Eu Legislation

EU membership would be an event with a great impact on Albanian society, on the functioning of institutions, on the economic economy and on the well-being of the people, which being a great driving force would give a variety of positive results. The desire to have the rule of law, the rule of law, the protection of fundamental rights and freedoms, the economy, the state and well-being, which are seen as distinct elements for the member states of the European Union, are a strong driving force, as a way out this EU membership for the realization of the essential factors. They should aim for membership in the European Union, we should align their domestic legislation with the legislation of the European Union and implement it effectively. The obligation of the Republic of Albania for the approximation of its legislation with the EU acquis derives from the Stabilization and Association Agreement EU - Albania, which was signed on 12 June 2006 and entered into force on 1 April 2009. Article 70 of the SAA - For Albania, it would like to ensure that its existing laws and future legislation gradually go hand in hand with the EU acquis. This approximation started on the date of signing the SAA and will be gradually extended to all elements of the EU acquis required by this Agreement within a transitional period of up to 10 years, divided into two phases. During the first phase of the transitional period (which has manifested itself with the entry into force of the SAA) the approximation focused on the essential elements of the Internal Market acquis, during the second phases of Albania, to become a remaining part of the acquis.   Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024

Current Trends in the use of International Instruments in Ethiopian Court Decisions: Potential Lessons for Comparative Constitutional Law

Comparative law in general and comparative constitutional law in particular is a thriving field of legal scholarship in many states. The basic idea of investigating and studying the norms and institutions of other societies has been used to draw good practices and lessons that can assist in resolving contemporary political, social and legal problems in a particular society.  While it is true that the use of comparative law in domestic jurisdictions should be socially and culturally grounded, it has been instrumental for developing optimal normative standards in many states. This includes an increasing academic interest to understand the normative and institutional challenges of different polities in order to entrench constitutional democracy and enhance the protection of fundamental rights. Nevertheless, there is also a significant misconception and overstated criticism on the use of comparative law by many scholars. This is all the more evident when it comes to the legal practice in Ethiopia. In this article, I analyze the different arguments presented for and against the use of the comparative method, and argue that there is a continued relevance of comparative constitutional law in Ethiopian legal practice. The fledgling jurisprudence and growing reliance of Ethiopian courts on international human rights law in some of their cases is testament to the continued relevance of international and comparative law in Ethiopia.

Intersections in the digital society: cancel culture, fake news, and contemporary public discourse.

This article critically examines the intricate relationship between cancel culture and fake news, shedding light on their collective impact on current societies. The changing social landscape, marked by the transition from the "network society" to the "platform society," has given rise to unprecedented phenomena such as cancel culture. Rooted in social media complaints, cancel culture intersects with the dissemination of intentionally created false information, forming a complex web of dynamics. The study explores the multifaceted nature of cancel culture, its unintended consequences and the nuanced definitions surrounding it. The synthesis of erasure culture and fake news prompts critical reflections on the democratization of information, the protection of fundamental rights, and the potential risks to democracies of an unbridled online narrative. As digital networks continue to play a central role in everyday life, understanding and addressing these challenges is essential to maintaining a balanced discourse that upholds democratic values.

Metodología para la interpretación constitucional desde el modelo de la justicia electoral mexicana

The article aims to analyze in perspective how constitutional interpretation influences electoral justice and the protection of fundamental rights of a political-electoral nature. A methodology is proposed for the correct and efficient use of constitutional and conventional interpretation by jurisdictional operators, with special emphasis on the analysis of the obstacles or technical barriers they face when carrying out constitutional-conventional regularity examinations. The conclusion was obtained that in electoral judicial practice there are many problems when maximizing or optimizing rights, so constitutional interpretation must be based on a consistent and credible examination of judicial argumentation and hermeneutics to enhance political-electoral rights and democratic principles in the framework of the democratic rule of law.

The place of the constitutional complaint in the human rights protection mechanism in Ukraine

This paper constitutes a fundamental study aimed at analyzing the institution of the constitutional complaint as a significant element in the system for the protection of citizens' social rights. It highlights the legal establishment and procedural aspects of the constitutional complaint, reviews current judicial practice, and the challenges faced by the Constitutional Court of Ukraine in its consideration. The author's research also focuses on the importance of the constitutional complaint for applicants, revealing its impact on the possibility of a retrial based on the conditions established by the Constitutional Court. The analysis includes an examination of the historical development and legal establishment of the constitutional complaint in Ukraine, paying attention to its role in strengthening legal guarantees and the protection of fundamental rights and freedoms. The influence of the Venice Commission and international legal standards on the formation of the constitutional complaint institution in Ukraine is separately considered. The paper includes arguments for the necessity of further development of the constitutional complaint institution, taking into account national peculiarities and the experience of foreign countries, to ensure effective protection of human rights. The authors highlight the key role of the constitutional complaint in the system of legal guarantees, emphasizing its significance for the democratization of society and the strengthening of the rule of law. The research results make a significant contribution to understanding the conceptual foundations, principles of operation, and legal regulation of the constitutional complaint institution, proposing ways for its optimization and integration into the Ukrainian legal system. The paper's conclusions stress the necessity of ensuring fundamental rights and freedoms of individuals as a key condition for the functioning of the rule of law and the development of a democratic society, defining the constitutional complaint as a significant tool in this process. A detailed analysis of legal aspects, judicial practice, and challenges faced by the Constitutional Court of Ukraine in considering constitutional complaints indicates the need to strengthen mechanisms for the legal protection of citizens' rights and freedoms. Highlighting the motivation of applicants and the role of the constitutional complaint in their legal protection demonstrates its significance both for individuals and for strengthening a democratic rule of law. Analyzing the contribution of domestic and international scholars to the development of the theoretical base of the constitutional complaint institution, the authors underline its importance in forming a legal system aimed at protecting the fundamental rights and freedoms of citizens.

Proportionality during Times of Crisis: Precautionary Application of Proportionality Analysis in the Judicial Review of Emergency Measures

The need for a standard of review even during times of crisis – proportionality analysis as the ideal and universally applicable standard of review – the problem of excessive stringency of proportionality analysis during an emergency – the principle of in dubio pro libertate as the cause of the problem – adjusting each component of proportionality analysis to the precautionary principle as the solution – the precautionary application of proportionality analysis strikes a more appropriate balance between excessive stringency and insufficient protection of fundamental rights

The Brussels Side-Effect: How the AI Act Can Reduce the Global Reach of EU Policy

Abstract Over the last few years, artificial intelligence (AI) technologies have become embedded in various domains of social life, prompting legislative efforts at both national and international levels. In the European Union (EU), this drive for legislation has been reflected in various legal instruments, notably the proposed AI Act, which is expected to become a global standard through the “Brussels Effect.” This Article argues that while the AI Act will likely produce a Brussels Effect of its own, such an outcome will be accompanied by a side effect that undermines the EU’s ambition to spread legislative text and values in AI governance. Since the AI Act follows EU product safety legislation, its provisions supply limited protection to some of the values the EU policy intends to protect, such as the protection of fundamental rights. These shortcomings are compounded by the EU’s active efforts to shape alternative instruments, such as the Council of Europe’s proposed convention on AI along the lines of the AI Act. As a result, the diffusion of the AI Act as a global standard will have consequences for the EU policy agenda on AI and the conceptualization of the Brussels Effect.

Panel II – Bank Resolution and Fundamental Rights

Abstract The second Panel of the SRB’s Legal Conference, moderated by the SRB General Counsel Karl-Philipp Wojcik, focused on the possible interferences between the resolution framework and the protection of fundamental rights as embedded in the EU Charter of Fundamental rights (the Charter) the European Convention on Human Rights (ECHR) and its protocols. The panellists also picked up case law developments regarding those interferences before both the European Court of Justice (ECJ), and the European Court of Human Rights (ECtHR).

AI and politics: ensuring or threatening democracy?

Artificial Intelligence constitutes one of the most fundamental pillars for the implantation of the EU Digital Agenda. Its impact both in private and public life is omnipresent. AI has become an inherent part of the political life since politicians use it for several reasons, such as to promote their strategy as well as to achieve better and closer communication with people. All this is based on the existing set of legal rules. However, there are significant issues, both ethical and legal, which pose a wide range of concerns: from the protection of fundamental rights and freedoms to the safeguard of the principle of rule of law. The core question is the following: does AI strengthen democracy or lead to its deterioration? This paper aims at demonstrating the implementation of AI in politics. Firstly, there will be pursued, via a juridical methodology, a description of the regulatory framework governing AI, in connection with justice and democracy. Following a critical approach, there will be an analysis of principal ethical and legal concerns regarding the necessity and/or efficiency of use of AI in political life. Finally, the ultimate goal of the paper is to stimulate critical thinking and suggest fruitful proposals for the safeguard of the democracy and the establishment of a trustful and powerful digital environment.

Pojęcie i systematyka konstytucjonalizmu cyfrowego

Digital constitutionalism as a research trend refers to the adaptation of constitutional principles and institutions to new challenges and opportunities resulting from the digital revolution. Their purpose is to ensure the protection of fundamental rights, the balance of power and the protection of the current hierarchy of the system of values against their infringement caused by digital technology. Despite significant social implications, research on this phenomenon is limited and selective. The aim of the article is to systematize the theoretical framework around the concept of digital constitutionalism. The author reviews the definitions of the concept of digital constitutionalism found in the literature and organizes the subject of the research. A comparative analysis of the current directions of development of digital constitutionalism has also been presented and its individual trends have been identified. The effect of the considerations is to organize the dogmatic and legal discussion regarding the topic issue.

Possibilities and Approaches of European Court of Human Rights and Court of Justice of the European Union in Fundamental Rights Protection in the Context of Environmental Litigation

Two judicial bodies, but both without right to protect the environment established. This is also how the coexistence of the two important judicial bodies located in the European area could be briefly characterized. The European Court of Human Rights and the Court of Justice of the European Union were created for different purposes, but their jurisprudence in the area of environmental protection and the protection of people's lives and health from the negative consequences of climate change overlap more than it might seem at first sight. We find certain similarities in terms of ensuring a certain degree of protection of fundamental rights in the context of the environment. The European Court of Human Rights has a priority in terms of the protection of fundamental rights in Europe, but in the field of the environment it faces several problems. Especially when we are talking about the protection of rights for future generations, where there is no direct victim or direct violation of fundamental rights, only a very high risk of their violation. On the other hand, the Court of Justice of the European Union has a much greater assumption of effectiveness, which has the potential to change the legislation of the member states and thereby indirectly ensure the protection of people's lives and health. Recently, the activity of the European Commission has been increasing in the interest of achieving climate neutrality, and this also means greater pressure on the states in the interest of the complete and correct transposition of European regulations in the field of the environment. In case of deficiencies, the European Commission can intervene by filing a lawsuit according to Article 258 of the TFEU, and achieve the required remedy. Although, such a procedure is not primarily aimed at the protection of fundamental rights, the positive impact on their protection cannot be neglected.

Punishment of the Kanjuruhan Commotion due to Negligence from the Perspective of Causality Theory

Punishment results in Kanjuruhan in Indonesian football matches, to guarantee the protection of fundamental rights. The Kanjuruhan incident had a detrimental impact, causing fans' dissatisfaction (Aremania) at the defeat. The end of the match caused the crowd to come down the field, to express their disappointment. Tools in research use doctrinal law which is specifically of the normative type. This research uses literature study by collecting legal principles, legal rules, regulations, doctrine, theories, legal dictionaries which are based on legal literacy. The achievement results are to understand necessity, harmony and intentionality. How to work scientifically with research activities, using doctrinal laws. Specification of normative legal methods using positive law, context and literature. The research approach uses laws (positive law) and a case approach (Kanjuruhan commotions). The results and discussions revealed the verdict, in accordance with decision 13/Pid.B/2023/PN Sby deciding that the defendant was acquitted. Legal efforts were taken by the public prosecutor (JPU) in case 922/K/Pid/2023, to cancel the previous decision. The Supreme Judge assessed that a violation of Article 359 in conjunction with Article 360 of Law Number 1/1946 concerning Criminal Law Regulations had occurred, causing negligence resulting in death. The causality of this case was when security forces (police) fired tear gas into the spectator stands, due to the behavior of anarchist (Aremania) supporters who came down the field.

Harmonization of Ukrainian legislation with European law in the field of digital transformation of courts

The article is devoted to the problems of harmonization of national legislation in the era of digital transformation of courts with European law. The article reveals the essence of harmonization of Ukrainian legislation with European law in the field of digital transformation of courts. The main areas of research of scientists who at various stages were engaged in the study of problems related to the general characteristics of the harmonization of Ukrainian legislation with European law in the field of digital transformation of courts were studied. The European experience of the digital transformation of courts was analyzed and ways of harmonizing Ukrainian legislation with European law in the above-mentioned area were proposed. The theoretical problems of the digital transformation of the judiciary of Ukraine with European law are determined. A system of measures, functions and principles of harmonization of national legislation in the era of digital transformation of courts with European law is proposed. The stages of harmonization of legislation on the digital transformation of Ukrainian courts with European law are named. A comparative analysis of the legislative regulation of the judiciary in the era of digital transformation in Ukraine and in foreign countries was carried out, on the basis of which proposals were developed regarding the possibility of using foreign experience in the law-making activity of the state.The author argues that the observance of fundamental digital human rights and freedoms to some extent depends on the perfection of national legislation on judicial proceedings and legal mechanisms that will regulate the field of artificial intelligence used in courts. The article substantiates that the draft resolution of the European Parliament and the Council, proposed by the European Commission, establishing unified rules for artificial intelligence (Artificial Intelligence Act) and amending some EU legislative acts, is an important stage in the formation of the legal basis for regulating the use of artificial intelligence systems in courts, which must stand the test of time, balance the protection of fundamental rights, ensure legal certainty and stimulate innovation. Key words: digital transformation, national courts, European law, European judiciary, electronic court, digital technologies.

Private Property and the Commons: The Case Study of Water Distribution in Persian Qanats

Abstract Despite the polysemic nature a unique and dominant model of “property” has spread globally. It finds in the natural law thought its political and moral justification and in the article 544 of the Napoleonic Code its technical translation. The simple rhetoric of proprietary individualism elaborated within the economic analysis of law become the institutional reference in the governance of global economy. But private property is only one model of resources distribution and has not always been the main one for a long time. Comparative legal method shows us that the term property does not have a unique meaning, but it reveals the existence of alternative resource management models such as collective actions that are careful for the protection of fundamental rights and can preserve natural resources for the benefit of future generation.

Fuentes normativas y desarrollo jurisprudencial del derecho humano al agua en América LatinaNormative sources and jurisprudential development of the human right to water in Latin America

Abstract This paper reviews international and domestic normative and jurisprudential sources of the last twenty years on the Human Right to Water (HRW), focusing the study on Latin American countries that do not have this right expressly enshrined in their constitutional texts, especially Colombia, Argentina, Brazil, and Chile. It analyzes the arguments used in its recognition, the elements of its structure, and the ways of addressing the problem of entitlement and enforceable duties. The conclusion shows a stage of jurisprudential progress in the first two countries (Colombia and Argentina), with a recognition of various contents of the DHA in accordance with international standards, while in the case of Brazil and Chile there is evidence, with nuances, of a limited recognition. In this regard, the internal normative structures differ in terms of the role of the State and individuals in water management, and the judicial tools for the protection of fundamental rights as a way of processing conflicts over access to water.

VIOLENCE AGAINST WOMEN BY INTIMATE PARTNERS: THE ESSENCE AND VARIETIES

This article delves into the multifaceted issue of violence against women by their intimate partners, drawing from a wide array of legal and theoretical perspectives. Through a comprehensive exploration of Ukrainian legislation, international regulations, and scholarly research, it provides a nuanced examination of this pressing concern. The analysis encompasses the identification and characterization of various forms of intimate partner violence. Special attention is given to the analysis of the four main forms of violence: physical, sexual, psychological, and economic, as well as their manifestations and the wide-ranging consequences. It is stated that the most serious violence from an intimate partner can lead to the death of its victim, which is referred to as femicide.Additionally, the article provides a critical appraisal of existing Ukrainian legal frameworks, underscoring their inadequacies. The article firmly stresses the necessity of delineating intimate partner violence as a discrete concern within the broader context of violence against women. Moreover, it discusses the far-reaching implications of Ukraine's recent ratification of the Istanbul Convention. This landmark treaty sets forth rigorous standards and commitments for the nations that are signatories, compelling them to reshape their policies and systems. It thereby intensifies the need for an unwavering focus on intimate partner violence, calling upon the field of social work to formulate and execute effective strategies aimed at eradicating this deeply ingrained issue and ensuring the protection of fundamental rights for women. In conclusion, this article points to the urgent necessity for the field of social work to develop and implement evidence-based strategies that can effectively counter intimate partner violence.

The Protection of Fundamental Rights by the Constitutional Court in the Republic of Latvia. Perspectives, Opportunities and Limits of an Introduction of the Model in Italy

The Protection of Fundamental Rights by the Constitutional Court in the Republic of Latvia. Perspectives, Opportunities and Limits of an Introduction of the Model in Italy

Erosion of the Principle of Mutual Recognition. European Arrest Warrant and the Principle of Mutual Recognition in the Light of the Recent CJEU Rulings

An effective implementation of mutual recognition in the Area of Freedom, Security, and Justice requires mutual trust between the Member State. Mutual trust has been eroded in some Member States due to the rule of law crisis. However, it is not only the rule of law crisis, but also the departure of the Member States from the shared values of respect for fundamental rights, as well as the differences in the prosecutorial systems of individual Member States, that have caused changes in the perception of the principle of mutual recognition. This paper will examine the evolving approach to the principle of mutual recognition based on the recent Court of Justice of the European Union rulings on the European arrest warrant. The analysis concludes that the CJEU attaches more importance to the protection of the principle of mutual recognition, the prosecution of perpetrators of crime, and the unwavering presumption of respect for fundamental rights by the Member states than to the effective protection of fundamental rights.