An approach to today’s EU constitutionality control – understanding this EU inter-jurisdictional phenomenon in light of effective judicial protection

Under today’s European constitutional demands, effective judicial protection sets the tone concerning potential jurisdictional instruments able to act as constitutionality control mechanisms. Inter-jurisdictionality stands for different and complementary jurisdictional systems living togetherin the same space and it aims to understand how their reflexive interactions can be maintained to promote effective judicial protection. Both the infringement procedure and the preliminary ruling act as constitutional controls. The first allows the Court of Justice of the European Union (CJEU) to evaluate the incompatibility of national solutions/omissions with EU law but, to meet its full effectiveness, widening legitimate parties needs to be considered as well. Also, validity preliminary rulings act as a constitutional control in proceedings relating to individuals – national judges should be aware of their referring obligations to the CJEU. There are voices amongst European academia that advocate a new constitutional procedure to promote fundamental rights’ protection. However, the main formulas highlighted rely on solutions tested on the national level which can compromise their efficacy. We perceive an inter-jurisdictional paradigm as the proper approach since it will allowthe promotion of effective judicial protection at a constitutional level as a new EU dogmatically thought phenomenon. This is to ensure judicial integration can be perceived as a reality, engaged in pursuing the future of the EU

An approach to today's EU constitutionality control - understanding this EU inter-jurisdictional phenomenon in light of effective judicial protection

Under today’s European constitutional demands, effective judicial protection sets the tone concerning potential jurisdictional instruments able to act as constitutionality control mechanisms. Inter-jurisdictionality stands for different and complementary jurisdictional systems living together in the same space and it aims to understand how their reflexive interactions can be maintained to promote effective judicial protection. Both the infringement procedure and the preliminary ruling act as constitutional controls. The first allows the Court of Justice of the European Union (CJEU) to evaluate the incompatibility of national solutions/omissions with EU law but, to meet its full effectiveness, widening legitimate parties needs to be considered as well. Also, validity preliminary rulings act as a constitutional control in proceedings relating to individuals – national judges should be aware of their referring obligations to the CJEU. There are voices amongst European academia that advocate a new constitutional procedure to promote fundamental rights’ protection. However, the main formulas highlighted rely on solutions tested on the national level which can compromise their efficacy. We perceive an inter-jurisdictional paradigm as the proper approach since it will allow the promotion of effective judicial protection at a constitutional level as a new EU dogmatically thought phenomenon. This is to ensure judicial integration can be perceived as a reality, engaged in pursuing the future of the EUinfo:eu-repo/semantics/publishedVersio

Constitutional Complaint in Ukraine: The Interrelation Between the Protection of Subjective Civil Rights and Constitutional Control

The real possibility of judicial protection of individual rights and freedoms is a key element of effective legal regulation, as well as the manifestation of the rule of law. The new institution of the constitutional complaint lies in a rather specific plane, being both a part of the national system of protection of individual rights and freedoms and an element of constitutional control that ensures the supremacy of the Constitution of Ukraine. The relevance of this study is conditioned by the right of a citizen to complain about the mechanism of legal regulation, taking the provisions of the Constitution as an example. The purpose of the study is to consider the specific features of the interrelation between the protection of subjective civil rights and constitutional control. This study analyses the theoretical aspects, legislative regulation, and practice of the Constitutional Court of Ukraine. It was concluded that subjective rights and interests established by law might be violated, unrecognised or challenged only at the stages of legal implementation or enforcement. Keywords: Rule of law, legislation, legal dispute, Constitutional Court, human rights

The Supreme Court and Fundamental Rights--A Problem of Judicial Method

Since the Constitution is a plan of written but flexible basic rights, interpreted and applied by a judiciary with few limitations upon its powers, it is necessary to avoid conferring carte blanche discretion upon the Court. This Note adopts the premises that we may be arriving at an era when liberty will demand constitutional protection of human interests other than those explicitly embodied within the text of the Bill of Rights; that judicial identification of those interests is often the most effective method for granting this protection; and that the function of constitutional due process is to preserve the relevancy of liberty to the needs of modern people. This Note will explore the Supreme Court\u27s past attempts to bring content to due process liberty, and will illustrate the difficulties in granting constitutional status to a nonconstitutional interest by tracing the legal development of one such interest, privacy. Finally, the Note will argue for a judicial methodology through which fundamental nonconstitutional interests might gain constitutional status

Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis

How should we judge judicial review from the standpoint of protecting the constitutional rights and liberties of the vulnerable in times of crisis? It is in times of crisis that constitutional rights and liberties are most needed, because the temptation to sacrifice them in the name of national security will be at its most acute. To government officials, civil rights and liberties often appear to be mere obstacles to effective protection of the national interest. As Bush-administration supporters frequently intone when defending their post-September 11th initiatives, “the Constitution is not a suicide pact.” Judicial protection is also critical because crisis measures are typically targeted at the most vulnerable among us, especially noncitizens, who have little or no voice in the political process. We have been in such a crisis period since September 11th and will be for the foreseeable future. So now is a particularly propitious time to assess the value of judicial review in times of crisis. Part I of this Article will set forth the traditional view that the judiciary is inadequate in times of crisis, along with the evidence that supports it and the reasons that might explain it. Part II maintains that the traditional view overstates the case, because over time judicial decisions have had more of a constraining influence on emergency measures than appears when one looks only at the courts’ performance in the midst of a crisis. Part III surveys judicial performance since September 11th on matters of national security and argues that while the record is far from exemplary, courts have actually been more willing to stand up to the government in this period than in many prior crises. Part IV responds to a recent proposal by two leading scholars that courts and the Constitution ought to play less of a role in assessing emergency measures. Professors Oren Gross and Mark Tushnet have both recently argued that the poor performance of courts during emergency periods and the need for extraordinary emergency powers should impel us to acknowledge explicitly the validity of extraconstitutional emergency measures and leave judgment of such measures to the political rather than the judicial process. In my view, this proposal is fundamentally misguided, both because it fails to acknowledge the valuable role that courts have played, when viewed over time, in constraining emergency powers, and because the alternative of relying on the political process would almost certainly provide even less protection for individual rights than the courts have. To paraphrase Winston Churchill, judicial review is the worst protector of liberty in times of crises, with the exception of all the others

Legal aspects of accession of EU at ECHR

The European Union EU became the guardian of the rights of Europeans From a treaty-based entity the European Union became a supranational system based on democracy and where the treaties and the EU human rights principle operates as constitutional law Moreover the law of the European Union it is without doubt a form of European Public Law based on a system of administrative and increasingly constitutional law including its own Charter of Human Rights Into the European constitutional framework from the second half of the last century the political and judicial institutions of Europe have committed in creating a European constitutional order in which prevails the protection of human rights The fundamental values belong to the European constitutional heritage to Europe without borders and without double standards of protection The rights declared in the constitutions must found concrete tools to render them effective To ensure the effectiveness of the protection of human rights on our continent the European Union s adherence to the European Convention of Human Rights ECHR is considered to be the ideal tool in the absence of a legal and formal link between the systems of Strasbourg and Luxembourg With the Treaty of Lisbon the expected adherence of the EU to the ECHR was in fact hailed as a courageous political cultural and legal decisio

Constitutional Review Of Administrative Actions: Development In United Kingdom, India, Malaysia, South Africa And Hong Kong

The 21st century saw the rapid development of the administration of the nations of the world. With the development, it is essential to ensure that administrator entrusted with the administration of the country perform its duties in accordance with the rule of law. It must not act arbitrarily. Discretionary power if given to the administrator, it is limited. This is to guarantee that administrator in performing its duties would not infringe rights of an individual or community, especially fundamental rights. To make certain that this is achieved, an effective mechanism for the protection of rights, especially human or fundamental rights in state administration is needed. Judicial review is one of the effective mechanism to supervise and control action of the administrator. This mechanism is available in Administrative Law. Under the instrument, grounds of judicial review is made available to review action of the administrator. Currently, there are two streams of judicial review: Administrative Review and Constitutional Review. The former is a non-right based review of administrator’s power founded on the traditional common law using Wednesbury objective test or CCSU grounds not involving violation of fundamental and human right and the procedures. Meanwhile, the latter is a right-based review involving the exercise of administrative powers that violate the constitutional right of an individual or community, particularly, fundamental rights. The traditional common law, nevertheless, are inadequate in addressing review of administrative action involving violation of fundamental rights. For that reasons constitutional review as another stream in judicial review was developed. This was illustrated looking into the development in United Kingdom, India, Malaysia, South Africa and Hong Kong. With the expansion, mentioned the common law countries are capable of providing a more comprehensive and meaningful protection to an individual or community against unlawful act of the administrator that violates rights, especially human and fundamental rights. Consequently, state integrity is strengthen and be more accountable to the community. Hence, state can develop administration that is sound, and efficient in human, natural, economic and financial management. The proper enforcement of human rights will promote political and socio-economic stability, provide legal certainty and it encourages investors to invest in the country

Tutela judicial efectiva y la relación con el principio de reparación integral / pág. 43-60

Effective judicial protection is one of the integrative rights of international public order and integral reparation is an obligation of the State. This article analyzes effective judicial protection and its relationship with the principle of integral reparation. This is a study with a qualitative approach, at an analytical level; based on information from scientific articles and books, as well as the Constitution of the Republic of Ecuador, the Constitutional Court of Ecuador, the Organic Law of Jurisdictional Guarantees and Constitutional Control and the Organic Code of the Judicial Function; in addition, international human rights normative instruments. The results show that effective judicial protection is a fundamental right that promotes the guarantee that the claims of the parties involved in a judicial process are resolved by the competent judicial bodies, but with reasonable and fair legal criteria; in addition, integral reparation is a requirement, orientation and guarantee within the constitutional State of rights and justice itself, with the purpose of contributing to the materialization of its objective, which is the effective exercise and enjoyment of rights through the protection of the same. It is concluded that effective judicial protection is closely related to the principle of integral reparation, since the latter has the purpose of comprehensively repairing the damages and rights that were violated and punishing the determining facts of the affectation to rights, such as that of effective judicial protection, which represents one of the fundamental rights of the State.La tutela judicial efectiva es uno de los derechos integrativos del orden público internacional y la reparación integral es una obligación del Estado. El presente artículo analiza la tutela judicial efectiva y su relación con el principio de reparación integral. Se trata de un estudio con enfoque cualitativo, de nivel analítico; basado en información de artículos científicos y libros, así como de la Constitución de la República de Ecuador, la Corte Constitucional de Ecuador, la Ley Orgánica de Garantías Jurisdiccionales y Control Constitucional y del Código Orgánico de la Función Judicial; además, de instrumentos normativos internacionales de derechos humanos. Los resultados muestran que la tutela judicial efectiva es un derecho fundamental que promueve la garantía de que las pretensiones de las partes involucradas en un proceso judicial se resuelvan por los órganos judiciales competentes, pero con criterios jurídicos razonables y justos; además, la reparación integral es una exigencia, orientación y garantía dentro del propio Estado constitucional de derechos y justicia, con el propósito de contribuir a materializar su objetivo, que es el ejercicio efectivo y goce de derechos a través de la tutela de los mismos. Se concluye que, la tutela judicial efectiva guarda una estrecha relación con el principio de la reparación integral, por cuanto este último tiene la finalidad de reparar integralmente los daños y derechos que fueron violados y sancionar los hechos determinantes de la afectación a los derechos, como el de la tutela judicial efectiva, el cual que representa uno de los derechos fundamentales de Estado

Right to Counsel: Balancing the Burden of Persuasion on the Adversarial Scales of Criminal Justice

How much is society willing to pay to protect constitutional rights from government infringement? How much constitutional protection is society allowed to forfeit in exchange for more effective law enforcement? The criminal justice system\u27s allocation of the burdens of proof ultimately decides these questions. When do effective law enforcement tactics, such as undercover agent investigations, violate a defendant\u27s sixth amendment right to the effective assistance of counsel? When does the sixth amendment violation warrant judicial remedies? Only the government knows when and how improperly obtained information is ultimately utilized. The adversarial context of American criminal justice dictates allocating to the government the burden of persuasion on the issue of whether an intrusion into the defendant\u27s right to counsel was unconstitutionally prejudicial

Оновлення судової системи України (Renovation of the judiciary system in Ukraine)

This article deals with the role of the judiciary as a basis for the creation and functioning of the legal state, the state of the justice system in Ukraine and prospects of its further development based on domestic legislation. It outlines the problematic issues of development the institution of the judiciary and ways of their solutions. The Law on amendments to the Constitution of Ukraine related to justice and the Law of Ukraine «On the Judicial System and Status of Judges» is analyzed. The analysis, areas of constitutional modernization in the judicial system, the judiciary and the status of judges are outlined. The author concludes that the constitutional modernization of the legal framework of justice will lead to a substantial revision of the content and essential component of many other constitutional institutes. After the events, which are called «Revolution of dignity» in Ukraine the next stage of the constitutional process began, that was marked by the establishment of the Constitutional Commission, as a special subsidiary body under the President of Ukraine; its goal is to work out coordinated proposals for amendments to the Constitution of Ukraine. According to the author, the reform of the judicial system is intended to facilitate the creation of conditions for the real protection of human and citizen’s rights and freedoms, which is conditioned by systematic, effective and logical interconnection between the judicial, legislative and executive branches of state power