scholarly journals CONSTITUTIONALITY DURING TIMES OF CRISIS: ANTI-PANDEMIC MEASURES AND THEIR EFFECT ON THE RULE OF LAW IN CROATIA

2020 ◽  
Author(s):  
Ana Horvat Vuković ◽  
◽  
Valentino Kuzelj ◽  
Keyword(s):  
Public Health ◽  
Rule Of Law ◽  
Constitutional Rights ◽  
Civil Protection ◽  
Foreseeable Future ◽  
Liberal Democracies ◽  
Protective Measures ◽  
Social State ◽  
The Rule Of Law ◽  
The Right

The Croatian constitution-maker’s dedication to the concept of a social state begets the state’s duty to care for public health. This duty is especially salient amid the SARS-CoV-2 virus pandemic. One would be well-advised to be watchful of the dangers that periods of crisis pose for the viability of liberal democracies: in Croatia, protective measures against the COVID-19 disease have been entrusted to the national Civil Protection Command in an initially illegal way. This was later on retroactively convalidated by legislative “patchwork” solutions. It is to be expected that the issue of such measures’ constitutionality will in the foreseeable future present itself on the Constitutional Court’s docket. This paper focuses on one of the most contentious measures - that of a ban on Sunday trade, particularly its implications for the economic constitutional rights such as the right of ownership and entrepreneurial freedom. Furthermore, the authors’ analysis of several Constitutional Court’s decisions from the time of the previous economic crisis will endeavor to anticipate the Court’s decisions in upcoming cases.

Zasada szybkości w postępowaniach w sprawach przygotowania i realizacji inwestycji infrastrukturalnych

2020 ◽  
Vol 30 ◽  
pp. 174-188
Author(s):  
Przemysław Ostojski ◽  
Keyword(s):  
Rule Of Law ◽  
Public Interest ◽  
Constitutional Rights ◽  
The Rule Of Law ◽  
The Public ◽  
Constitutional Principle ◽  
Infrastructure Investments ◽  
Principle Of Proportionality ◽  
Administrative Proceedings ◽  
The Right

The article concerns the principle of speed in the proceedings regarding the implementation of infrastructure investments. The analysis of individual legal institutions is aimed at assessing statutory regulations of investment acts in the scope of the principle of speed. The aim of the analysis is to verify the assertion that the implementation of specific law-related rules in special investment documents connected with giving priority to the speed of administrative proceedings followed the constitutional principle of proportionality. As a result of the conducted analysis, it should be stated that the implementation of the principle of speed of proceedings to investment acts does not fundamentally violate the essence of constitutional rights of individuals – including the right to challenge decisions and the right to protect of rightly acquired rights. The legislator limits the principles of transparency, as well as the principle of active participation of the party in administrative proceedings, but does not eliminate these principles. Regardless of this, the legislator infringes in the analyzed Acts the essence of the party’s right to submit an application for temporary protection in administrative proceedings. The legislator violates in a qualified manner – due to the public interest – the rule of law and two-instance, preventing the appeals authority in the course of the instance of repealing the decision in its entirety, if the defect affects only its part concerning the property.

Regspraak: Die konstitusionele hof verwyder die reg van werknemers om nie onbillik ontslaan te word nie uit die beskermingsveld van die handves van regte – grondwetlike gesigspunte

2021 ◽  
Vol 2021 (1) ◽  
pp. 145-159
Author(s):  
IM Rautenbach
Keyword(s):  
South African ◽  
Rule Of Law ◽  
Human Dignity ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
The South ◽  
The Rule Of Law ◽  
Stop Sign ◽  
The Right ◽  
Special Rights

Section 39(2) of the Constitution of the Republic of South Africa, 1996, recognises the existence of rights not protected in the bill of rights. The South African bill of rights protects human conduct and interests extensively. Before the AMCU judgment was delivered, no clear example of a right not protected by the bill of rights had been identified in case law and legal literature. In the AMCU case the constitutional court deviated from previous judgments by holding that the interests of employees not to be dismissed unfairly is not covered by the right to fair labour practices in section 23(1) of the constitution. The court based its finding on textual and contextual interpretive considerations. Its interpretation of section 23(1) was not sound. A narrow, grammatical approach, namely that the text of section 23(1) does not refer expressly to such a right, cannot be followed when the meaning of open-ended constitutional phrases like “fair” labour practices is determined. And an extra-textual reference to the protection of the right in ordinary law is not relevant when the meaning of a constitutional provision is determined. Aspects of human dignity and physical and psychological integrity cannot be removed from the protective ambit of the bill of rights because they are protected by ordinary rules of the law of delict and criminal law. Viewed contextually with the other provisions of the bill of rights, the constitutional right to fair labour practices, like the right to access to housing, food, health and social services, children’s rights and criminal and civil procedural rights, protects other constitutional rights in a particular field, in this case in the field of labour relations. Apart from the fact that it can hardly be contested that every employee has a vital interest not to be dismissed unfairly, many other rights, for example, to human dignity, physical and psychological integrity, economic activity, association and audi alteram partem, may be limited factually by dismissals and dismissal procedures. The scheme and ethos of the South African bill of rights is that these special rights that overlap with the general rights are guaranteed separately. Within this context one of the ironies of the artificial exclusion of a right from the protective ambit of the special right is that its violation may, like in systems without these special rights, be challenged on the basis of the unjustifiable limitation of the general rights. A rule of thumb that the protective ambit of constitutional rights should be interpreted restrictively because the application of the weak rational relationship test as part of the rule of law serves the separation of power principle better than the application of the stricter reasonable test for the limitation of constitutional rights (in the separate concurring judgment of Theron J) is questionable. Whereas legality as part of the rule of law is always complied with when the weak rationality relationship exists, reasonableness in terms of section 36 does not always amount to the application of a stricter test. The existence of a very compelling purpose (to combat a pandemic that threatens life and limb) or a factually slight limitation of a right (to stop at a stop sign) could be the basis of a conclusion that the limitation is justifiable when the weak rational relationship test is complied with. The court’s consideration of proportionality under the umbrella of the application of the weak rational relationship test causes more uncertainty in the present somewhat unruly field of the application of rationality tests.

Psychological Peculiarities Pertaining to Conducting a Search of Adult Criminals and Juvenile Delinquents

2019 ◽  
Vol 9 (4) ◽  
pp. 222-226
Author(s):  
Sadagat Gulmirzaevna Bashirova ◽  
Artur Gasanguseynovich Ibragimov
Keyword(s):  
Rule Of Law ◽  
Juvenile Delinquents ◽  
Cognitive Activity ◽  
Search And Seizure ◽  
Constitutional Rights ◽  
The Rule Of Law ◽  
The Right To Privacy ◽  
Legal Literature ◽  
The Right ◽  
Complete Investigation

Abstract The article discusses the problems of psychological preparation by an investigator to carry out a search and seizure as independent investigative actions. A quick and complete investigation of crimes depends on the skills and abilities of the investigator when applying methods of lawful mental influence on the person being searched. Psychological problems, questions of organizing the conducting a search are the objects of the works of M.I. Enikeeva, N.P. Yablokova, V.A. Obraztsova, V.I. Popova, A.S. Knyazkova, R.L. Ahmedshina, T.V. Averyanova, R.S. Belkina, Yu. G. Korukhova, E.R. Rossinskaya, etc. The purpose of this article is to consider the psychological nature of the search, to reveal a specific series of circumstances. In legal literature, a search is understood to mean not only search coercive activity, but also the cognitive activity of the investigator. Peculiarities of the investigator's cognitive activity are expressed in the personal perception of the searched premises and the personality of the most searched in a conflict situation. It should be noted that at the time of the search, the constitutional rights of citizens to privacy and the right to privacy of housing are limited. Therefore, compliance by the investigator with the procedural order of the search and the rule of law ensures the effectiveness of this investigative action, which in turn guarantees the observance of the constitutional rights of citizens.

Part V The Functions of International Organizations, Ch.28 Sanctions

2016 ◽  
Author(s):  
Farrall Jeremy
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
International Organization ◽  
The Other ◽  
Foreseeable Future ◽  
The Rule Of Law ◽  
Peace And Security ◽  
Decision Making System ◽  
The One ◽  
The Right

This chapter examines the most prominent forms of international organization sanctions, namely United Nations (UN) and European Union (EU) sanctions. It first examines the constitutional basis, scope, and administration of UN and EU sanctions. It then compares and contrasts these two models, discussing how the interests of peace and security, on the one hand, and human rights and the rule of law, on the other, can sometimes come into conflict in the application of international organization sanctions. It shows that the UN sanctions decision-making system tends to prioritize peace and security, whereas the EU sanctions decision-making system tends to prioritize the rule of law. The chapter argues that neither tradition of international organization sanctions has found the right balance, and that the ongoing contest between peace and security and the rule of law will continue to shape and constrain international organization sanctions decision-making for the foreseeable future.

PRINCIPLES OF STATE REGULATION OF THE ACTIVITIES OF BODIES OF THE STATE EXECUTIVE SERVICE AND PRIVATE EXECUTORS

2018 ◽  
Vol 1 (13) ◽  
pp. 69-77
Author(s):  
Mariіa Konstantinovna Kulava
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Social Relations ◽  
State Regulation ◽  
Court Decisions ◽  
Regulatory Requirements ◽  
The Rule Of Law ◽  
State Administration ◽  
Executive System ◽  
The Right

Within the presented article, taking into account already existing achievements of scientists, the concept, the main features of the principles of state administration of the executive system of Ukraine are defined. The principles of activity of executive bodies bodies according to the current legislation of Ukraine are determined. A brief description of the principles is presented, namely: the rule of law, legality, compulsory, independence, justice, impartiality and objectivity, discretion, transparency and openness of executive proceedings and its fixation by technical means, the reasonableness of the time limits for enforcement proceedings, the proportionality of enforcement measures and the amount of claims for decisions, the right to appeal decisions, actions or omissions of state executives, private performers. It is established that in general the principles of executive proceedings in the investigated normative acts are duplicated, in addition to the principles of independence and the right to appeal decisions, actions or inaction of state executives, private performers. The actual vision of the principles of public administration of the executive system of Ukraine is determined. The opinion on the need to supplement the list of principles with the following: the principle of equal competition between state and private performers through the balance between them; the principle of responsibility of the executive system bodies, their officials and private executors for damage caused as a result of violations of regulatory requirements; the principle of introducing effective incentives for voluntary implementation of decisions; the principle of professionalism and competence. Also, within the submitted article, it is stated that the use of the terms “principles” and “principles” in the Laws of Ukraine “On Bodies and Officials Performing Enforcement of Court Decisions and Decisions of Other Bodies”, “On Enforcement Proceedings”, which are adopted simultaneously and regulated, are unjustified, identical social relations.

Theoretical and methodological determinants of the Robert von Mol’s concept of the social state

2020 ◽  
Vol 2020 (1) ◽  
pp. 37-45
Author(s):  
Svetlana Pirozhok
Keyword(s):  
19Th Century ◽  
Rule Of Law ◽  
Social Protection ◽  
The State ◽  
Scientific Article ◽  
Social State ◽  
The Rule Of Law ◽  
Legal Thought ◽  
The Social ◽  
The 19Th Century

The relevance of determining the theoretical and methodological determinants of the Robert von Moll’s concept of the social state is due to the need to determine the patterns of evolution of ideas about the state and law, as well as the need to assess the ability to use the potential of the Robert von Moll’s theoretical and legal heritage, his predecessors and contemporaries to identify the optimal model of the social state. Modern Russia attempts to build such state. The proclamation and consolidation of Russia as a social state governed by the rule of law at the constitutional level requires attention both to the experiments carried out in social and legal development, and to the practices of social reform, and also to those ideas that have not yet been embodied. The ideas of European scholars regarding the evolution of the state-legal organization of society in the early modern period, based on which Robert von Mohl (1799–1875) developed original concepts of a social state and a state governed by the rule of law are discussed in the article. An analysis of the state of European political and legal thought and identification of the factors that have a significant impact on the development of Robert von Mohl’s doctrine of a social state governed by the rule of law are the purposes of the scientific article. The methodological basis of the study was the dialectical-materialistic, general scientific (historical, systemic) and special (historical-legal, comparativelegal) methods of legal research. The method of reconstruction and interpretation of legal ideas had great importance. As a result of the study, it was concluded that in the first half of the 19th century in European political and legal thought various approaches was formed to consider the problems of social protection and how to resolve them. The development trend of European political science became the transition from ideas and principles formed in the conditions of police states and enlightened absolutism to the ideas of a state governed by the rule of law (constitutional) that protects the rights and freedoms of a citizen. At the same time, it was a question of the rights and freedoms of only a part of the population: the proletariat growing in number and significance was not always evaluated as an independent social stratum. The axiological principles of state justification have also changed. Rights and utility principle became dominant principles. In the first half of the 19th century the social issue as an independent scientific problem of the European political and legal thought was not posed and not systematically developed. Questions about the social essence of the state, the specifics of the implementation of the state social function, the features of public administration in the new stage of socio-economic development of society predetermined the emergence of the idea of a social state. This idea was comprehensively characterized in the Robert von Mohl’s works. He went down in the history of political and legal thought as founder of the concepts of social and governed by the rule of law state.

NAČELO PRILAGOĐENOSTI USLUGE I PRAVO NA SLOBODAN IZBOR

2021 ◽  
Author(s):  
Jelena Janković ◽  
Keyword(s):  
Rule Of Law ◽  
Service Sector ◽  
Free Choice ◽  
Moral Authority ◽  
Service Users ◽  
Service Economy ◽  
Moral Dimension ◽  
The Rule Of Law ◽  
Legal Relationship ◽  
The Right

The first step of a positive change in the system of service-legal relations is a change of view on the role and importance of service users. By providing opportunity to the service user to be an active and important member of the service-legal relationship, a far-reaching and universal value of humanization of the service economy sector is achieved. In such circumstances, the moral authority of the service law is realized through its justice and through voluntary obedience to the law of the subjects of the service-legal relationship. Precisely, this moral dimension of the rule of law, in the service economy sector is realized by applying the principles of service suitability and the right to free choice. In this regard, the paper analyzes the moral dimension and culture of the rule of law in the service sector, based on the principle of service suitability and the right to free choice, which are presented in the paper as guardians of justice of the service-legal norm.

Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM

2018 ◽  
Vol 9 (3) ◽  
pp. 353-365 ◽  
Author(s):  
Petra Bárd ◽  
Wouter van Ballegooij
Keyword(s):  
Member State ◽  
Rule Of Law ◽  
Mutual Recognition ◽  
Judicial Independence ◽  
Fundamental Rights ◽  
Judicial Cooperation ◽  
The Rule Of Law ◽  
State Compliance ◽  
The Right ◽  
The Eu

This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule of law problem. This implies that executing judicial authorities should freeze judicial cooperation in the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member State compliance with democracy, the rule of law and fundamental rights. The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the judicial test developed in the Aranyosi case now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

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