scholarly journals Problematic Issues of Protecting Property Rights from Illegal Actions of Public Authorities

2020 ◽  
Vol 90 (3) ◽  
pp. 31-39
Author(s):  
К. І. Варава
Keyword(s):  
Local Community ◽  
State Intervention ◽  
Civil Code ◽  
Property Right ◽  
State Agency ◽  
New Right ◽  
Public Authorities ◽  
European Court ◽  
Original Owner ◽  
Bona Fide

Property right is one of the key legal institutions of society, and the protection of property right plays an important role in guaranteeing this institution. The issue of protection of property right remains problematic, when there is a conflict of interest between bona fide purchasers and original owners, especially in cases where the original owner is the state or local community, which misused the property and therefore, initiated the process of illegal transfer of the property right. There are serious differences in law-enforcement practice regarding the views on resolving disputes over the recovery of state or municipal property from bona fide purchasers. The most problematic in these cases is the establishment whether the property was taken out of the possession of the owner or the person to whom he transferred the property into possession, not on their will (paragraph 3 of Part 1 of the Art. 388 of the Civil Code of Ukraine). They usually try to prove the illegality of the decision of public authorities or local self-government agency in these cases and that their actions were committed in excess of authority. The author has studied the problematic issues of deprivation of the property right of a bona fide purchaser due to illegal actions of public authorities in case of concluding agreements on this property. Aspects of proportionality of state intervention into the property right of a person in accordance with the standards of the European Court of Human Rights have been analyzed, taking into account the principle of proper administration. When deciding on the possibility of depriving a person of property due to an error made by a public authority, the following should be taken into account: 1) the position of the ECHR, according to which the need to correct a former “error” should not disproportionately interfere with the new right acquired by a person who expected to rely on the legitimacy of good faith actions of a state agency; 2) the claim may be made within the guarantees provided in the Art. 1 of the Protocol No. 1; 3) violation of the property right, in particular the possibility of claiming the disputed property, which went beyond the will of the owner, according to the provisions of the Art. 388 of the Civil Code of Ukraine; 4) the existence of a direct legislative prohibition on the alienation of the relevant property from state property, when, for example, it is established by the Law of Ukraine; 5) the purpose of interfering in the peaceful possession of a person’s property should be the real protection of the property right, and not the delimitation of powers between public authorities.

Kelembagaan Masyarakat dan Struktur Agraria serta Keberlanjutan Sumberdaya Alam di Kawasan Capa

Agrotek ◽  
2018 ◽  
Vol 2 (3) ◽  
Author(s):  
Mecky Sagrim
Keyword(s):  
Natural Resources ◽  
Local Community ◽  
Property Right ◽  
Local Institutions ◽  
Group Property ◽  
Young Shoot ◽  
Agrarian Structure

Aim of the research as follows: (1) inquisitive about variation of laws in regulating agrarian resources use, (2) function of traditional law in regulation at used of natural resources and related with existence on natural preservation-in formal law, and (3) inquiring influence outsider intervention to local institutions with the agrarian structure and relationship between expectation agrarian conflict. The unity of the study is Arfak community-as much as local community- was that administrative limited seatle in certain locations around natural preservation area of the Arfak Mountain. The trategy of the research is case study, while analysis of the data with qualitative manner. Result of the research is in the locations study beside property right of local community and movement of Arfak community from high land include at the resettlement programme. Not a problem related with economic subsistence with economic un-security because group property right community give free to the movement community for use to agriculture developing. For developing concept of forest sustainable as nit side to one side, income several NGO as well as role as institution relationship (young-shoot autonomy) for accommodation importance various party supra-village in relationship with existence natural preservation area of the Arfak Mountain and the party of local community in related of security in economic subsistence.

Of Love and Laetrile: Medical Decision Making in a Child's Best Interests

1979 ◽  
Vol 5 (3) ◽  
pp. 269-294
Author(s):  
Eve T. Horwitz
Keyword(s):  
Decision Making ◽  
Medical Treatment ◽  
Burden Of Proof ◽  
State Intervention ◽  
Convincing Evidence ◽  
State Agency ◽  
Best Interests ◽  
Medical Decision ◽  
Appropriate Treatment ◽  
Life Threatening

AbstractTwo recent cases have raised important questions concerning the appropriateness of state intervention in parental choices of unorthodox medical treatment for children with life-threatening conditions. This Note first discusses whether, and if so, when, state intervention in a child's treatment selection by its parents is appropriate, and then analyzes the tests a court should apply in deciding upon an appropriate treatment. The Note recommends a decision-making approach that requires the appropriate state agency to prove, by clear and convincing evidence, that the parents' choice of medical treatment either is directly or is indirectly harming their child. Under this approach, if the state meets its burden of proof the court then must apply the ‘best interests’ test, rather than the ‘substituted judgment’ test, to choose an appropriate medical treatment for the child.

scholarly journals ZARZĄD WSPÓLNOTĄ GRUNTOWĄ

2017 ◽  
Vol 8 (1) ◽  
pp. 151
Author(s):  
Grzegorz Jędrejek
Keyword(s):  
Civil Code ◽  
Property Right ◽  
Xixth Century ◽  
The Subject

The Management of a Joint Land PropertySummaryThe article is devoted to the concept of a joint land property, the origins of which go back to the enfranchisement performed on the Polish territory in the XIXth century, which consisted in granting the property right to the hitherto users. The problem of pieces of land which were used commonly by the village’s inhabitants was solved in this manner that some parts of it were the subject of a real easement and other parts were left in the inhabitants’ hands establishing so called a joint land property. The article presents the problems connected with the management of the joint land property. The postulates de lege ferenda have been also formulated. The author suggests the elimination of the partnerships, the establishment of which is obligatory, aimed at managing the joint land properties. In his opinion respective provisions of the Civil Code related to co-ownership should apply thereto.

scholarly journals The Right to Effective Management in the Practice of the European Court of Human Rights

2020 ◽  
Vol 12 ◽  
pp. 29-31
Author(s):  
Andrey Yu. Klyuchnikov ◽  
◽  
Vladimir S. Kruzhilin ◽  
Keyword(s):  
Human Rights ◽  
International Justice ◽  
Effective Management ◽  
Government Officials ◽  
Public Authorities ◽  
European Court ◽  
The Right

The article is devoted to the study of the right to effective management recognized by the international justice as a complex interdisciplinary institution affecting the functioning of public authorities and local self-government, officials and courts. The authors study the principles of the right to effective management, the powers granted to persons in connection with the action of the Institute, taking into account the practice of the ECHR.

LA CAZA DEL ZORRO ANTE EL TRIBUNAL EUROPEO DE DERECHOS HUMANOS. COMENTARIO A FRIEND Y COUNTRYSIDE ALLIANCE V. REINO UNIDO, DECISIÓN DE ADMISIBILIDAD DEL TEDH (SECCIÓN CUARTA) DE 24 DE NOVIEMBRE DE 200

2010 ◽  
pp. 201-216
Author(s):  
AGUSTIN GARCIA URETA
Keyword(s):  
Property Right ◽  
Right To Privacy ◽  
The Right To Privacy ◽  
Derechos Humanos ◽  
Basic Rights ◽  
European Court ◽  
The Uk ◽  
The Right

Este comentario analiza la sentencia del Tribunal de Derechos Humanos de 24 de noviembre de 2009, en relación con la prohibición de cazar zorros con perros en el Reino Unido, adoptada mediante la Hunting Act 2004. En la sentencia el Tribunal desestima las alegaciones de los demandantes, que habían sostenido la infracción de derechos básicos reconocidos en el Convenio Europeo, como la vida privada, el derecho de reunión, de propiedad o de igualdad. Iruzkin honek, Erresuma Batuan 2004an Hunting Act delakoaren bidez azeriak txakurrekin ehizatzeari buruzko debekua dela eta, Giza Eskubideen Auzitegiak emandako epaia du aztergai (2009-11-24). Auzitegiak auzi-jartzaileen alegazioak ezeztatzen ditu. Hauen arabera, debekuak Europako Hitzarmeneko oinarrizko hainbat eskubide urratuko luke, esaterako, bizitza pribatua, bilera-eskubidea, jabetza-eskubidea edo berdintasun printzipioa. This comment analyses the judgment of the European Court of Human Rights of 24 November 2009 concerning the hunting prohibition set out in the UK Hunting Act 2004. The Court dismissed all the allegations concerning the breach of basic rights enshrined in the Convention, i.e., the right to privacy, the freedom of peaceful assembly, the property right and non-discrimination rights.

Alcohol and Politics in France

1957 ◽  
Vol 51 (4) ◽  
pp. 976-994 ◽  
Author(s):  
Bernard E. Brown
Keyword(s):  
World War I ◽  
Large Scale ◽  
State Intervention ◽  
Domestic Market ◽  
The State ◽  
State Agency ◽  
The North ◽  
State Monopoly ◽  
The Government ◽  
The Right

“On jongle trop avec la structure d'un Pays qui a été, dans le monde, le défenseur de l'individu, de la liberté, du sens de la mesure. Un petit paysan sur sa terre, n'est-il pas humainement autre chose que le chômeur de demain ou l'ouvrier qui sera condamné à fabriquer toute sa vie des boulons?”Le Betteravier Français, September 1956, page 1.Large-scale state intervention in the alcohol market in France dates from World War I, when the government committed itself to encourage the production of alcohol. Two chief reasons then lay back of this decision: a huge supply of alcohol was needed for the manufacture of gunpowder, and the devastation of the beet-growing regions of the north had severely limited production of beet alcohol, thereby throwing the domestic market out of balance. A law of 30 June 1916, adopted under emergency procedure, established a state agency empowered to purchase alcohol. At the end of the war, a decree of 1919 accorded the government the right “provisionally” to maintain the state monopoly. In 1922 the beetgrowers and winegrowers gave their support to the principle of a state monopoly which, in effect, reserved the industrial market for beet alcohol and the domestic market for viticulture. In 1931 the state was authorized to purchase alcohol distilled from surplus wine.

scholarly journals Information delayed is justice denied

2019 ◽  
Vol 52 (1-2) ◽  
pp. 1-8
Author(s):  
Jurij Toplak ◽  
Boštjan Brezovnik
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
European Convention ◽  
Access To Information ◽  
Effective Protection ◽  
Public Authorities ◽  
European Court ◽  
Disclosure Of Information ◽  
Access Information ◽  
The Right

European Court of Human Rights ruled in 2016 that the European Convention on Human Rights includes a right to access information held by public authorities. While according to international documents the procedures for accessing information should be ‘rapid’, the courts have yet to rule on what ‘rapid’ means and when the procedures are so long that they violate rights of those asking for information. This article analyses the length of proceedings in access to information cases in Slovenia and Croatia. It shows that these two countries do not have a system of effective protection of rights because the authorities can easily delay disclosure of information for several years. It argues that lengthy procedures violate the right to access the information and the freedom of expression. It then presents solutions for improving access to information procedures in order for them to become ‘rapid’

DEMOCRATIC ETATISM AS A WAY OF ORGANIZATION OF STATE POWER: MAIN FEATURES

2015 ◽  
Vol 10 (5) ◽  
pp. 60-67
Author(s):  
Дорофеев ◽  
Arkadiy Dorofeev
Keyword(s):  
Government Regulation ◽  
Public Life ◽  
State Intervention ◽  
State Control ◽  
Main Criterion ◽  
Political Decision ◽  
Public Authorities ◽  
Economic Relations ◽  
Emerging Democracy ◽  
Political Decision Making

The article analyzes the processes of etatization of public authorities in countries with emerging democracy. The author has the view that there is a democratic type of etatism in political practice of modern democratic countries. The author concludes that the presence of etatistic tendencies in the form of increased state control of the process of political decision-making, government regulation of the unit of social and economic relations, etc. is not contrary to the democratic vector of social development; but the synthesis of declared democratic values and etatistic realities allows to select the type of democratic etatization as one of the varieties of modern etatism. The main criterion for distinction of democratic etatism from other varieties, according to the author, is existence of constitutionally set principles of democracy, as well as actual extent of state intervention in public life.

Negotiations and Social Democracy in South Africa

1990 ◽  
Vol 28 (3) ◽  
pp. 487-509 ◽  
Author(s):  
Roger Southall
Keyword(s):  
South Africa ◽  
Cold War ◽  
Eastern Europe ◽  
Liberal Democracy ◽  
Free Market ◽  
State Intervention ◽  
New Right ◽  
Wide Spread ◽  
The Cold War ◽  
New Situation

Whilst the so-called ‘new right’ shrilly proclaims victory for capitalism and liberal democracy in the cold war, quieter voices see in the death agonies of European Stalinism the seeds of socialism more as it was meant to be. I refer not any triumphal Trotskyist depiction of the popular overthrow of bureaucratised ruling classes, but rather to wide-spread searchings throughout Eastern Europe for ‘a third – and better – way’. From this perspective, however much the electoral thaw may give rise to stridently anti-communist, anti-central planning, pro free-market parties, the dynamics of the new situation will virtually require pursuit of a mixed economy featuring selective state intervention.

Osman v. UK—Transforming English Negligence Law into French Administrative Law?

1999 ◽  
Vol 48 (4) ◽  
pp. 757-778 ◽  
Author(s):  
G. Monti
Keyword(s):  
Human Rights ◽  
Administrative Law ◽  
European Countries ◽  
Public Authorities ◽  
European Court ◽  
English Law ◽  
Negligence Law

Liability of public authorities is limited in all European countries. In Osman v. UK1 the European Court of Human Rights (“the Court”) has reviewed the scope of English negligence law in a case concerning the liability of the police. On a first reading the judgment may appear to be confined to the facts of the case at hand, but further reflection suggests that the Court has attacked the orthodox approach to negligence liability for public authorities in English law.

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