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1
Coors, Corinna. "Headwind from Europe: The New Position of the German Courts on Personality Rights after the Judgment of the European Court of Human Rights." German Law Journal 11, no. 5 (May 1, 2010): 527–37. http://dx.doi.org/10.1017/s207183220001868x.
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In Germany, as in the U.S., the relationship between protection of privacy and freedom of expression has been subject of many decisions. In the U.S. a right of privacy was famously conjured out of common law precedents by Warren and Brandeis. Over the course of a century, it developed into a right of publicity, which gave celebrities the power to prevent the commercial use of their names, endorsements, images, voices, and other attributes of personality by unauthorized third parties. In defining such a right, much attention has been focused on separating what is commercially unacceptable from what is desirable free speech under the First Amendment of the U.S. Constitution. It has also been important to settle the duration of such rights. Publicity rights as a commercial value of a person's identity are therefore well established in the U.S., although state laws vary widely as to the extent of protection. In Germany, due to the constitutional background of the personality right, the balance between public and private interests still operates differently. After the European Court of Human Rights (ECHR) in 2004 convicted the German Federal Republic of violating the Convention for the Protection of Human Rights Fundamental Freedoms, the German Federal Court (Bundesgerichtshof—BGH) took the opportunity to think over its previous position about image rights. Three judgments were examined by the German Constitutional Court (Bundesverfassungsgericht—BVerfG) and one of them was reversed.
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Tolsdorf, Jan, Florian Dehling, Delphine Reinhardt, and Luigi Lo Iacono. "Exploring mental models of the right to informational self-determination of office workers in Germany." Proceedings on Privacy Enhancing Technologies 2021, no. 3 (April 27, 2021): 5–27. http://dx.doi.org/10.2478/popets-2021-0035.
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Abstract Applied privacy research has so far focused mainly on consumer relations in private life. Privacy in the context of employment relationships is less well studied, although it is subject to the same legal privacy framework in Europe. The European General Data Protection Regulation (GDPR) has strengthened employees’ right to privacy by obliging that employers provide transparency and intervention mechanisms. For such mechanisms to be effective, employees must have a sound understanding of their functions and value. We explored possible boundaries by conducting a semi-structured interview study with 27 office workers in Germany and elicited mental models of the right to informational self-determination, which is the European proxy for the right to privacy. We provide insights into (1) perceptions of different categories of data, (2) familiarity with the legal framework regarding expectations for privacy controls, and (3) awareness of data processing, data flow, safeguards, and threat models. We found that legal terms often used in privacy policies used to describe categories of data are misleading. We further identified three groups of mental models that differ in their privacy control requirements and willingness to accept restrictions on their privacy rights. We also found ignorance about actual data flow, processing, and safeguard implementation. Participants’ mindsets were shaped by their faith in organizational and technical measures to protect privacy. Employers and developers may benefit from our contributions by understanding the types of privacy controls desired by office workers and the challenges to be considered when conceptualizing and designing usable privacy protections in the workplace.
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Adams, Andrew A., Sarah Hosell, and Kiyoshi Murata. "Following Snowden, German uncertainty about monitoring." Journal of Information, Communication and Ethics in Society 15, no. 3 (August 14, 2017): 232–46. http://dx.doi.org/10.1108/jices-01-2017-0006.
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Purpose As part of an international study of knowledge of and attitudes to Snowden’s revelations about the activities of the National Security Agency/Government Communications Headquarters, this paper aims to deal with Germany, taking its socio-cultural and political environment surrounding privacy and state surveillance into account. Design/methodology/approach A questionnaire was answered by 76 German University students. The quantitative responses to the survey were statistically analysed as well as qualitative considerations of free text answers. Findings Snowden’s revelations have had an important influence over German students’ attitudes toward privacy and state surveillance, and show concerns over the privacy risks associated with Internet activity. Practical implications The study results imply a need to build a collective awareness of the importance of the right to privacy and its responsibilities, the available technological options for individuals to exert their own privacy and security and the democratic means to agree and enforce appropriate legal restrictions on state surveillance. Social implications Young Germans support Snowden’s actions and would be more willing to emulate him in Germany than in the USA. While many believe that people must give up some privacy and freedom for security, few seem to believe that current US or German approaches are valid and justified. Originality/value This study is the first attempt to investigate the social impact of Snowden’s revelations on German students’ attitudes toward privacy and state surveillance as part of cross-cultural analyses between eight countries.
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V. V., Novitskyi. "Political and legal mechanisms for the protection of human rights through the lens of the European Union countries." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 180–85. http://dx.doi.org/10.33663/2524-017x-2020-11-32.
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The author of the article, first of all, draws attention to the current problems of protection and protection of human rights, which unfortunately are traced within the territorial jurisdiction of the European Union. Such problem is quite well demonstrated by Berbel Koffler, as the Commissioner of the Government of the Federal Republic of Germany on human rights and humanitarian aid policy. Indeed, the Ombudsman of Germany has raised a number of deep dilemmas: violence against human rights defenders on the grounds of their professional activity, the relation of human rights institutions with public security and economic development. In fact, these questions, in varying percentages, are equally relevant to many countries in the world. In the outlined context, the case of the European Court of Human Rights “Gabriel Weber and Caesar Richard Saravia v. Germany” of 29.06.06 was analyzed. Actually, this case covers directly the issues of human rights and national security of Germany. Grounds for initiating this case have arisen in connection with the legislative provisions of the Law of Germany on the Restriction of the Secret of Correspondence, Mail and Telecommunications of 13.08.68., ("Law G-10"), taking into account changes made under the Anti-Crime Act of 28.10.94, which extend the powers of the Federal Intelligence Service, within the so-called strategic monitoring. It is about collecting information by listening to telephone conversations in order to identify and prevent serious threats to the Federal Republic of Germany, such as: armed attacks on its territory, international terrorist attacks, other serious crimes. According to the applicants who worked as journalists, strategic monitoring can be used against individuals to prevent effective journalistic investigations. In view of these suspicions, the applicants argued that they had violated the human rights guaranteed by the Convention, such as the right to privacy and correspondence, the violation of press freedom, and the right to an effective remedy. The ECHR Judges, having examined the circumstances of the case, concluded that there were no grounds to satisfy the complaints on the basis of the following arguments: 2) German legislation, as part of strategic monitoring, is endowed with adequate and effective safeguards against abuse by authorized entities. In addition, the article analyzes the multi-vector issue of banning citizens of some European Union countries from wearing hats that completely or partially hide their faces. The fact is that, under such restrictions, in particular, the traditional clothing of women adherents of Islam has fallen. It is a “burqa” and a “niqab”. The presented study is mainly based on the legislative practice of France, Belgium, which provides for administrative as well as criminal penalties for non-compliance with the stated prohibition. In such cases as S.А.С. France, Belkacemi and Oussar v. Belgium, Dakir v. Belgium, the applicants, alleged that they had violated the human rights guaranteed by the Convention, including: the right to respect for their private life; the right to freedom of expression of one's religion or belief; the right to freedom of expression; the right to freedom of association; humiliating treatment and discrimination against the enjoyment of the abovementioned human rights. According to most ECHR judges, who have dealt with the said cases, the disputed prohibition is not necessary in a "democratic society for public safety" but its main task is to preserve the conditions of "cohabitation" as an element of "protection of the rights and freedoms of others." In the context of this debate, attention was paid indirectly to such EU Member States as: Austria, Bulgaria, Croatia, Germany, Latvia, the Netherlands, Italy, Spain, Denmark, Switzerland. Keywords: human rights, legal guarantees, security, privacy.
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Schaller, Christian. "Strategic Surveillance and Extraterritorial Basic Rights Protection: German Intelligence Law After Snowden." German Law Journal 19, no. 4 (July 1, 2018): 941–80. http://dx.doi.org/10.1017/s2071832200022926.
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This Article examines the statutory and constitutional legal framework governing the bulk collection of communication data by the German Federal Intelligence Service (Bundesnachrichtendienst, BND). German intelligence law distinguishes between certain categories of communications depending on the nationality and location of the participants. The provisions on the surveillance of foreigners abroad are far more permissive than those applying to the monitoring of communications that involve German nationals or foreigners in Germany. This differentiation is the consequence of a narrow interpretation by the German legislator of the personal and territorial scope of the right to privacy enshrined in Article 10 of the Basic Law. While there is no doubt that German nationals enjoy protection under Article 10 wherever their privacy is affected by the actions of the German State, current intelligence legislation is based on the understanding that foreigners are entitled to such protection only while staying in Germany. It will be argued that such discrimination is difficult to reconcile with German constitutional law because Article 10 protects every natural person without regard to nationality and because the Article's applicability is not limited to the territory of the Federal Republic of Germany. This means that the BND is bound by Article 10 irrespective of whether its surveillance activities affect German nationals, foreigners in Germany, or foreigners abroad. Arguably, the level of protection in transnational constellations may be subject to certain modifications. But if basic rights protection is taken seriously, the existing fragmented legislation should be replaced by a uniform statutory regime for strategic surveillance of international communications that meets the minimum standards of Article 10 without bearing reference to a person's nationality or location.
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Rudolf, Beate. "Human Rights in Germany – A View from Germany's National Human Rights Institution." International Journal of Legal Information 44, no. 1 (March 2016): 50–58. http://dx.doi.org/10.1017/jli.2016.7.
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AbstractThis paper discusses the protection of human rights in Germany through the interplay of constitutional law and international human rights law. It also explores the relationship between specialized human rights treaties on the rights of women, children, and persons with disabilities with “general” human rights treaties and their added value. It will highlight current human rights issues, such as the treatment of refugees, the protection against racist discrimination, and the right to privacy in the digital age.
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GERASIMOVA, Evgeniya V. "THE RIGHT TO BE FORGOTTEN IN THE PRACTICE OF THE CONSTITUTIONAL JUSTICE BODIES OF THE RUSSIAN FEDERATION AND THE FEDERAL REPUBLIC OF GERMANY." Tyumen State University Herald. Social, Economic, and Law Research 6, no. 3 (2020): 170–87. http://dx.doi.org/10.21684/2411-7897-2020-6-3-170-187.
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The development of digital technologies affects the legal status of an individual. The task of constitutional justice is the constitutional interpretation of new legal phenomena such as the right to be forgotten. This article aims to analyze the right to be forgotten in the decisions of the Russian Constitutional Court and German Constitutional Court in a comparative aspect. The research methodology is primarily a dialectical method. This method helps the author to identify the content of the right to be forgotten, as well as to determine its role in relation to other constitutionally significant values. The comparative legal method is of particular importance for achieving the objectives of the research and helps to highlight the general and specific in the approaches of the courts to the concept of this right. This approach distinguishes the novelty of this research in comparison with other papers. The use of the dialectical and comparative legal research methods allows drawing the following conclusions. The distinctive feature of the right to be forgotten is its dualistic nature. On the one hand, this is a civil right associated with the right to privacy; on the other, it acts as a way to protect other constitutional rights (for example, the dignity of the individual). This right is not absolute. Some information may be of public interest. To resolve the issue of the prevailing constitutionally significant value in a particular case, the Russian Constitutional Court suggests using the method of finding a balance. The Federal Constitutional Court of Germany emphasized that the right to free personal development and dignity sometimes prevails over freedom of information, especially considering the time factor in the case, as well as the degree of harm caused to a person by links to information posted on the Internet. The German Federal Constitutional Court, characterizing the legal relationship regarding the exercise of the right to be forgotten, highlights that this is a relationship between private subjects with fundamental rights, and refers to the concept of the horizontal effect of fundamental rights (“mittelbare Drittwirkung”) developed in German constitutional law. This article concludes that the decisions of the Russian Constitutional Court and the Federal Constitutional Court of Germany on the right to be forgotten are the guidelines for other courts, as well as the legislator for further improving legal regulation. Taking into account the development of information technologies, the author believes that the constitutional courts will more than once turn to the digital aspects of the legal status of an individual and, in particular, the concept of the right to be forgotten.
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Keenan, Rachel. "Image Rights and Privacy Law – A Summary of the UK Position." Business Law Review 30, Issue 5 (May 1, 2009): 110–15. http://dx.doi.org/10.54648/bula2009024.
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This article looks at privacy law in the US, Germany and France before providing a summary of the case law which suggests the emergence of a privacy law in the UK through the expanded and developed areas of law such as breach of confidence, data protection and human rights in order to offer individuals some form of protection over private aspects of their lives where specific privacy legislation has not done so.
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Vettorel, Arianna. "Global Positioning System Evidence in Court Proceedings and Privacy: The Case of Italy." Air and Space Law 42, Issue 3 (May 1, 2017): 295–312. http://dx.doi.org/10.54648/aila2017020.
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This article focuses on privacy concerns related to the use of GPS data as evidence in court proceedings and suggests the need for updated, comprehensive international rules on this topic. Indeed, with the lack of international rules on the use of GPS evidence as well as other satellite evidence in trials, domestic courts, when admitting this data as proof, do not always adequately address the need to protect individual fundamental rights, especially the right to respect for private life. This situation is currently a problem in Italy, where there are no specific provisions on this issue and domestic jurisprudence sidesteps these concerns, in spite of the European Court of Human Rights’ statements in Uzun v. Germany. In short, in this report Italy will be treated as a case study, which shows the need for international rules on this matter.
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Martins de Araújo, Luís Cláudio, and Luiz Augusto Castello Branco de Lacerda Marca da Rocha. "A tutela da privacidade na Suprema Corte norte-americana e no Tribunal Constitucional Federal Alemão: perspectivas para um diálogo constitucional transfronteiriço." REVISTA QUAESTIO IURIS 15, no. 1 (February 24, 2022): 171–96. http://dx.doi.org/10.12957/rqi.2022.56103.
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ResumoO artigo tem por objetivo verificar o tratamento conferido ao direito à privacidade na evolução da jurisprudência da Suprema Corte dos EUA e do Tribunal Constitucional Federal da Alemanha, analisando sua compatibilidade com o ordenamento jurídico brasileiro e discutindo as bases para o uso persuasivo da jurisprudência estrangeira pelos tribunais.Palavras-Chave: Privacidade. Constitucionalismo transfronteiriço. Consistência argumentativa. Diálogos transnacionais Estados Unidos. Alemanha. AbstractThe article aims to verify the treatment given to the right to privacy in the evolution of the jurisprudence of US Supreme Court and in the Federal Constitutional Court of Germany, analyzing the compatibility with the Brazilian legal system and discussing the bases for the persuasive use of foreign law by the courts.Keywords: Privacy. Cross-border constitutionalism. Rational consistency. Transnational dialogue. United States. Germany.
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Martins de Araújo, Luís Cláudio, and Luiz Augusto Castello Branco de Lacerda Marca da Rocha. "A tutela da privacidade na Suprema Corte norte-americana e no Tribunal Constitucional Federal Alemão: perspectivas para um diálogo constitucional transfronteiriço." REVISTA QUAESTIO IURIS 15, no. 1 (February 24, 2022): 171–96. http://dx.doi.org/10.12957/rqi.2022.56103.
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ResumoO artigo tem por objetivo verificar o tratamento conferido ao direito à privacidade na evolução da jurisprudência da Suprema Corte dos EUA e do Tribunal Constitucional Federal da Alemanha, analisando sua compatibilidade com o ordenamento jurídico brasileiro e discutindo as bases para o uso persuasivo da jurisprudência estrangeira pelos tribunais.Palavras-Chave: Privacidade. Constitucionalismo transfronteiriço. Consistência argumentativa. Diálogos transnacionais Estados Unidos. Alemanha. AbstractThe article aims to verify the treatment given to the right to privacy in the evolution of the jurisprudence of US Supreme Court and in the Federal Constitutional Court of Germany, analyzing the compatibility with the Brazilian legal system and discussing the bases for the persuasive use of foreign law by the courts.Keywords: Privacy. Cross-border constitutionalism. Rational consistency. Transnational dialogue. United States. Germany.
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Begunovich, Roman. "Education Rights in the Constitutions in the Soviet Union and the German Democratic Republic." Bulletin of Kemerovo State University. Series: Humanities and Social Sciences 2023, no. 1 (January 27, 2023): 54–58. http://dx.doi.org/10.21603/2542-1840-2023-7-1-54-58.
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The article considers the right to education recorded in the Constitutions of the German Democratic Republic and the Soviet Union, as well as some related norms applied in the Soviet zone of Germany. The author used the comparative legal method, e.g., the method of normative comparison, to compare the education laws in East Germany and the USSR. The state regulation of education started in East Germany in the pre-republic period. The period of 1945–1949 saw a ban of private schools, a single structure for all comprehensive schools, and a stipulation of equal rights to education. The constitution of the German Democratic Republic, which appeared in 1949, enshrined these norms at the statutory level. However, the new Constitution inherited a lot from the Weimar Constitution. The consolidation of education rights in the Constitution of 1968 differed from the variant of 1949. The Constitution of 1968 did not follow the education model of the Soviet Constitutions of 1936 and 1977, which were almost identical in structure and content. Despite the strong influence of both Soviet law and Marxist-Leninist ideology, the Constitutions of East Germany were independent in terms of education rights.
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Alberton Coutinho Silva, Cecília. "The fundamental right of confidentiality and integrity of IT systems in Germany: a call for “IT Privacy” right in Brazil?" International Cybersecurity Law Review 2, no. 2 (October 13, 2021): 253–69. http://dx.doi.org/10.1365/s43439-021-00037-4.
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Choko, Maude, and Isabelle Martin. "The Minimum Wage as a Matter of Tangible Human Dignity: A Comparative Constitutional Law Analysis." International Journal of Comparative Labour Law and Industrial Relations 34, Issue 3 (September 1, 2018): 231–55. http://dx.doi.org/10.54648/ijcl2018011.
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The right to human dignity has been applied to numerous employment issues: loss of reputation, privacy, sexual and psychological harassment.Human dignity has less often been invoked in litigation involving tangible working conditions such as the minimum wage. These questions have traditionally been dealt with by employment legislation rather than human rights law. This article argues that minimum wage issues are also a matter of human dignity. In this respect, the adequacy and sufficiency of minimum wage regulations could be assessed in the light of the right to human dignity. In particular, we will examine minimum wage regulations in Quebec (Canada) with regard to the right to human dignity as laid down in the Quebec Charter of Human Rights and Freedoms. In order to substantiate the relationship between the minimum wage and human dignity, we intend to make use of comparative constitutional law. We will draw on the interpretation and application of human dignity developed in international law as well as in four jurisdictions: Quebec, Canada, Israel and Germany. Although Quebec and Canadian case law has applied human dignity to work issues, they have not developed its application to tangible working conditions. By comparison, international law, together with Israeli and German law, have developed the tangible dimension of dignity more extensively. These sources of law may help address the lack of attention on the part of the Quebec courts to the tangible dimension of dignity at work. We then turn to the Quebec minimum wage regulations to evaluate their sufficiency and adequacy in the light of the right to human dignity.
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Chhtrapati, Devang, Vikash Upadhyay, and Dilip Mevada. "IS RIGHT TO PRIVACY IN PERIL DUE TO SURGE OF CCTV SURVEILLANCE?" VIDYA - A JOURNAL OF GUJARAT UNIVERSITY 1, no. 1 (February 14, 2022): 1–7. http://dx.doi.org/10.47413/vidya.v1i1.46.
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The present study analyzed the issue of right to privacy vis-à-vis CCTV surveillance. The usage of CCTV surveillance has grown in recent years. Governments and individuals are using CCTV surveillance for reducing the risk of crimes and to get proper information of crime. Technological enhancement should be used for making life better and safe. It has been found that mishandling of CCTV surveillance results in violation of the right to life with dignity. It has also raised the concern about liberty and freedom of individuals. The study put prominence on the proper usage of CCTV surveillances. It is essential that the right of privacy should not be violated and the usage will give fruitful results. There are always two sides of the coin. CCTV surveillance has its own pluses and drawbacks and the same is narrated in the present study. Whenever it is done without proper precautions then it may enter into the private life of a person without taking their consent. Photographs and clippings of private moments are divulged and it is the annexation of the privacy of people. It is uncomfortable. It is very difficult to keep balance between uprightness and evil in the era of technological advancement. The study put emphasis on the germane usage of CCTV surveillances rather than cluttered. The right to privacy is associated with dignity, freedom and liberty. It shall not be hampered by technological expansion.
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Černý, Petr. "The Right of Assembly in Central Europe." Age of Human Rights Journal, no. 15 (December 15, 2020): 163–85. http://dx.doi.org/10.17561/tahrj.v15.5786.
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The article deals with the legal regulation of the right to freedom of peaceful assembly in Germany, Austria, the Czech Republic and the Slovak Republic with regard to the jurisdiction of the European Court of Human Rights (ECHR). The chosen topics focus on the definition of assembly, the relationship between freedom of expression and property rights together with the right of assembly. In each of above-mentioned countries, the assembly to which constitutional protection is granted, the definitiondiffers slightly; with the widest concept of assembly deriving from the judicature of the ECHR. The constitutional protection of the Assembly, in particular found in Germany and Austria, which is significantly narrower than the protection provided by the European Convention on Human Rights, may thus at some stage come into conflict with the requirements of the ECHR. The section devoted to freedom of speech deals, among other things, with cases exhibiting shocking photographs, which were part of the campaign against abortion, in front of schools in the Czech Republic and the Slovak Republic. In the future, the most serious problem is the conflict of the right of assembly along with the right of ownership, consisting in assemblies held on private property, which is used by the public, such as shopping malls, airports or railway stations. This has been the focus of the professional public and the courts for a long time, especially in Germany.
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Roxin, Claus. "Involuntary Self-Incrimination and the Right to Privacy in Criminal Proceedings." Israel Law Review 31, no. 1-3 (1997): 74–93. http://dx.doi.org/10.1017/s0021223700015247.
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In any rule-of-law system the law of criminal procedure is bound to weigh the intended investigation of the truth against the interest of the person charged with a criminal offence in protecting his privacy. The German law of criminal procedure is a typical example of the permanent struggle with these conflicting demands. While the majority of the courts are making an effort to reinforce the protection provided to the accused, the latest pieces of legislation reveal a tendency of allowing increasingly far-reaching invasion of privacy. I will try to map out the most important aspects of this development.In doing so I will distinguish between state-enforced, involuntary self-incrimination and the right to privacy. These two problems overlap because enforced self-incrimination will often entail invasion of privacy and, conversely, because an invasion of privacy by the state will often result in involuntary self-incrimination. But although these problems are intertwined I will differentiate between them and I accept that there will be some overlapping. After all, there may be invasions of privacy without self-incrimination and there may be cases of self-incrimination which are not caused by an invasion of privacy.
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Reine-Vītiņa, Agnese. "Personas datu aizsardzības mērķis un tiesiskā regulējuma vēsturiskā attīstība." SOCRATES. Rīgas Stradiņa universitātes Juridiskās fakultātes elektroniskais juridisko zinātnisko rakstu žurnāls / Rīga Stradiņš University Faculty of Law Electronic Scientific Journal of Law 1, no. 13 (2019): 104–9. http://dx.doi.org/10.25143/socr.13.2019.1.104-109.
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Mūsdienās tiesības uz privāto dzīvi nepieciešamas ikvienā demokrātiskā sabiedrībā, un šo tiesību iekļaušana konstitūcijā juridiski garantē fiziskas personas rīcības brīvību un vienlaikus arī citu – valsts pamatlikumā noteikto – cilvēka tiesību īstenošanu [5]. Personas datu aizsardzības institūts tika izveidots, izpratnes par tiesību uz personas privātās dzīves neaizskaramību saturu paplašinot 20. gadsimta 70. gados, kad vairāku Eiropas valstu valdības uzsāka informācijas apstrādes projektus, piemēram, tautas skaitīšanu u. c. Informācijas tehnoloģiju attīstība ļāva arvien vairāk informācijas par personām glabāt un apstrādāt elektroniski. Viena no tiesību problēmām bija informācijas vākšana par fizisku personu un tiesību uz privātās dzīves neaizskaramību ievērošana. Lai nodrošinātu privātās dzīves aizsardzību, atsevišķas Eiropas valstis pēc savas iniciatīvas pieņēma likumus par datu aizsardzību. Pirmie likumi par personas datu aizsardzību Eiropā tika pieņemti Vācijas Federatīvajā Republikā, tad Zviedrijā (1973), Norvēģijā (1978) un citur [8, 10]. Ne visas valstis pieņēma likumus par datu aizsardzību vienlaikus, tāpēc Eiropas Padome nolēma izstrādāt konvenciju, lai unificētu datu aizsardzības noteikumus un principus. Nowadays, the right to privacy is indispensable in every democratic society and inclusion of such rights in the constitution, guarantees legally freedom of action of a natural person and, simultaneously, implementation of other human rights established in the fundamental law of the state. The institute of personal data protection was established by expanding the understanding of the content of the right to privacy in the 70’s of the 19th century, when the government of several European countries initiated information processing projects, such as population census etc. For the development of information technology, more and more information on persons was kept and processed in electronic form. One of the legal problems was gathering of information on natural persons and the right to privacy. In order to ensure the protection of privacy, separate European countries, on their own initiative, established a law on data protection. The first laws on the protection of personal data in Europe were established in the Federal Republic of Germany, then in Sweden (1973), Norway (1978) and elsewhere. Not all countries adopted laws on data protection at the same time, so the Council of Europe decided to elaborate a convention to unify data protection rules and principles.
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Rosenau, Henning. "The Human Right of Reproduction: Ovum Donation and Surrogacy." Juridica International 28 (November 13, 2019): 49–58. http://dx.doi.org/10.12697/ji.2019.28.06.
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The right to reproduction, including the use of modern methods of fertility medicine, is well founded on constitutional grounds and is protected by the Constitution Germany and of Estonia as well. This right is protected also at the level of European human rights, by Article 8 of the European Convention on Human Rights, which addresses the right to a private and family life. In light of Article 8(2) of that convention, restrictions to these are deemed legitimate only when they are based on scientifically valid evidence and to protect the wellbeing of the child. The author concludes that the current state of scientific knowledge gives insufficient reason to justify prohibition of ovum donation and surrogate motherhood. Said prohibition discriminates against people who rely on such methods (thereby infringing on Article 14 of the European Convention on Human Rights and Article 3(1) of the German Basic Law). Therefore, ovum donation and surrogacy should be allowed by law, as is proposed under sections 6 and 8 of the proposal for a modern law on reproductive medicine (AME-FMedG) issued by the Augsburg and Munich Working Group of medical ethics lawyers.
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Rott, Peter. "Harmonising Different Rights of Withdrawal: Can German Law Serve as an Example for EC Consumer Law?" German Law Journal 7, no. 12 (December 1, 2006): 1109–36. http://dx.doi.org/10.1017/s2071832200005332.
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Harmonisation of the different rights of withdrawal, enshrined in legislation on doorstep selling, distance selling, timesharing, and in the near future consumer credit, is amongst the top issues of the EC agenda on European private law. Germany, following its tradition of a well-organised system of private law rules, has tried for some time to establish a harmonised system at the national level. At the same time, Germany appears to have created one of the most detailed set of rules on the right of withdrawal in Europe, in particular with a view to the consequences of the withdrawal from a contract, and it has tried to find the right balance between the interests of consumers and traders, a challenge that will also come up at EC level.
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Rytter, Jens Elo. "No Punishment without Guilt the Case concerning German Prosecution of a Former GDR Border Guard." Netherlands Quarterly of Human Rights 21, no. 1 (March 2003): 39–61. http://dx.doi.org/10.1177/016934410302100103.
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After the reunification in 1990, Germany started prosecuting persons responsible for the inhumane border-policing regime in the former GDR, which had resulted in the deaths of hundreds of citizens attempting to flee the country. This article focuses on the conviction of a former GDR private border guard for homicide. The border guard brought the case before the German Constitutional Court, and later the Strasbourg Court, claming that his conviction violated the prohibition of retroactive punishment. Neither complaint succeeded. The article argues that, whilst formally upholding the absolute prohibition of retroactive punishment in Article 7 ECHR, the Strasbourg Court held in essence, as had the German Constitutional Court, that the prohibition of retroactivity had to yield to material justice in case of manifest violations of fundamental human rights, such as the right to life.
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Snyder, Thomas J. "Developing Privacy Rights in Nineteenth-Century Germany: A Choice between Dignity and Liberty?" American Journal of Legal History 58, no. 2 (April 13, 2018): 188–207. http://dx.doi.org/10.1093/ajlh/njy002.
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Lytvynenko, A. A. "THE RIGHT OF ACCESS TO PATIENT’S HEALTH DATA: A COMPARATIVE ANALYSIS OF THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS, THE EUROPEAN COURT OF JUSTICE, AND THE PRACTICE OF THE COURTS OF THE UNITED STATES AND SOME EUROPEAN COUNTRIES." Legal horizons 33, no. 20 (2020): 135–58. http://dx.doi.org/10.21272/legalhorizons.2029.i20.p135.
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The legal relationships between the physician and the patient involve a duty to maintain the confidentiality of information concerning the patient’s health which is based upon the acting legislation and case law. The non-fulfillment of the said duty mostly brings to civil or criminal responsibility. However, both legislation and case law of various states bear a substantial number of exemptions from the duty of medical confidentiality. With the enhancement of the patient’s role in decision-making concerning his treatment, various issues concerning his data privacy arose. Apart from his data privacy maintenance, there is an issue with the patient’s right to access his medical records. The purpose of access may not be as prosaic as it may initially look like, as in various jurisprudence, including the case-law of international courts, plaintiffs frequently applied to courts to obtain an order for medical records productions so as to file an action against hospitals for negligence. Hence, medical records would be used as evidence of negligence at trial. The positions of the United States courts and the courts in Europe (the given paper embraces several trials from Germany and Portugal) may have divergencies concerning direct access to medical data, the proprietary status of the health records, a right to access of third parties, and its conditions, the categories of personal data banned from patient’s access under certain circumstances, etc. The issue of access to medical records in known in the ECJ jurisprudence since the mid-70s, especially in a number of judgments wherein the plaintiffs sued various EEC bodies attempting to impugn the decision of their human resources department concerning their ineligibility of holding a certain position in the structures of EEC – therein, the defendants did not give reasonable justifications for such decisions and didn’t present any medical documentation to the prospective plaintiffs as a proof of their unfitness for office. Since the 1980s, similar actions were filed to the European Court of Human Rights. In some cases, not only the issue of the patient’s right to inspection of the respective health records was risen, but the aspect of accessing the information on the plaintiff’s biological forbearers as well (trials of Odievre v. France and Godelli v. Italy). Keywords: Medical records, data privacy, a right to access to medical records, medical confidentiality, medical negligence, the proprietary status of health records.
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Starck, Christian. "Freedom of Scientific Research and its Restrictions in German Constitutional Law." Israel Law Review 39, no. 2 (2006): 110–26. http://dx.doi.org/10.1017/s0021223700013030.
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The German Constitution guarantees freedom of scientific research. This guarantee raises questions, such as its legal definition and scope, as well as possible conflicts with other constitutional rights. This Article suggests that in order to have normative legal consequences, the constitutional concept of science must have an ethical dimension—the importance of the value of research and research for nonbiased “truth.” Such an ethically-loaded definition of science gives rise to internal restrictions, by placing forgery, manipulation, plagiarism and other forms of improper scientific practice outside the scope of constitutional protection. Restrictions to constitutional protection can also be derived from other constitutional rights, such as the right to privacy, environmental protection, and the life and health of others. Another arguably important restriction is derived from the right to human dignity, particularly as it touches upon biomedical questions of human cloning and embryo research. This paper argues that the Kantian proscription of treating human beings as a means to an end, which lies at the heart of the right to human dignity, imposes significant restrictions on current trends in biomedicine. These restrictions warn against an implicit utilitarianism that devalues the rights of vulnerable human beings.
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Lytvynenko, Anatoliy A. "The Hart-Fuller Debate on Law and Morality Within the Prism of the Legal Foundation of the Right to Privacy in its Earlier Jurisprudential Interpretations in German Case-Law." Teisė 119 (June 21, 2021): 157–72. http://dx.doi.org/10.15388/teise.2021.119.10.
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The 1950s debate between the British and American legal philosophers, Lon Fuller and Herbert Hart, has been a clash between the positivist and natural theories of origination of law and jurisprudence, with the former method primarily suggesting that law and morality are not necessarily interconnected, though may coincide in some occurrences, while the latter sticks to development of law that is based upon the mores and values related to human nature, which creates the standards that society should follow in order to function properly. The former approach, as it is argued, is not actually deprived of moral factors. To examine how these debates could work on practice, I decided to choose the early developments of the general right to privacy as an example of “penumbral” rights and to review the positions of various courts within adjudicating cases in respect with the general right to privacy.
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Robbers, Gerhard. "Church Autonomy in the European Court of Human Rights—Recent Developments in Germany." Journal of Law and Religion 26, no. 1 (2010): 281–320. http://dx.doi.org/10.1017/s0748081400000989.
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The European Court of Human Rights is currently considering several German cases on the autonomy of religious organizations or churches within secular German labor law and resulting conflict resolution issues that arise within religious communities. In the past, the European Court of Human Rights has consistently underlined the importance of church autonomy, relying on the European Convention of Human Rights and Fundamental Freedoms Article 9 guarantees of freedom of thought, conscience and religion:Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.Implementing these provisions in the context of religious autonomy, the Court has critically noted:[T]he autonomous existence of religious communities is indispensable for pluralism in a democratic society and is, thus, an issue at the very heart of the protection which Article 9 affords.… The right [of religious communities] to an autonomous existence is at the very heart of the guarantees in Article 9.
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Jahiri, Muhamet, and Dren Gërguri. "Online Media Ethics and the Privacy of Politicians in Kosovo." Informacijos mokslai, no. 83 (December 20, 2018): 90–100. http://dx.doi.org/10.15388/im.2018.83.6.
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[full article and abstract in English]
The pluralism of online media outlets, as well as the objective of these outlets to be the first to inform on events, may possibly lead these outlets to disrespect professional ethics. This paper will discuss the theoretical and ethical aspects of online media, its regulatory framework and particular cases when the respect of ethical standards when reporting on issues of privacy was potentially violated. This paper uses the purposive sampling method and comparative methods. The paper will examine a case study (where the intimate images of a politician were published), and whether ethical standards were respected in that particular case.The article reveals that in the context of information provision for a company, strategic and operational controlling are to be considered the most significant ones. Strategic controlling provides information on how to do the right activity, whereas operational controlling – on how an activity can be done right. The goals of a company can be achieved only through both of them. Tactical controlling is what connects strategic controlling to operational controlling; its paradigm can be expressed through two questions: 1) how to do the right activity right? 2) what should be done when a wrong activity is being done or the activity is being done wrongly? Information provision for the answers to these questions would ensure a direct relation and feedback of strategic and operational controlling. After analyzing the typologization of controlling based on its origin, it was identified that the two main schools of controlling practice exist that led to the development of two different models of controlling: the Anglo-Saxon (American) and European (German). An exemplary controlling model adapted for Lithuanian companies was prepared after comparing the American and German controlling models and evaluating them on the basis of the scope of tasks, dominant orientation, the role of the controller, and the information base. On the basis of this adapted model, an individual information provision controlling system can be created for any Lithuanian company. This article analyzes other types of controlling as well, evaluation of which is important when creating an efficient system for controlling information provision in a particular company.
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Zelger, Bernadette. "The Right to Be Forgotten in the European Union: Towards a Uniform Approach?" Global Privacy Law Review 3, Issue 1 (February 1, 2022): 19–28. http://dx.doi.org/10.54648/gplr2022003.
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This article aims to shed light on the application of the ‘right to be forgotten’ in the case law of the Court of Justice of the European Union (CJEU or Court) as well as the German Highest Courts, that is, the German Federal Constitutional Court (Bundesverfassungsgericht) and the German Federal Court of Justice (Bundesgerichtshof) from a fundamental rights perspective, thereby also considering the principles established by the European Court of Human Rights (ECtHR). While the CJEU in its decision in Google Spain (Case C-131/12) established a rebuttable presumption of supremacy in favour of the right to privacy, the German Highest Courts have ever since acknowledged the equal weight of fundamental rights in order to ensure a fair balancing of the latter against each other. However, considering the CJEU’s decision in GC and Others (Case C-136/17), the Court has arguably shifted its approach, thereby getting closer to an actual fair balancing of fundamental rights. It will be argued that such change in paradigm arguably provides for an approximation of the latter approaches in favour of the approach of the German Highest Courts. Such development is welcome, not only because it is in line with the principles established by the ECtHR and thus provides for a uniform standard of protection of fundamental rights within the EU, but also because of the existing lack of a hierarchy of the respective fundamental rights concerned which, as a consequence and matter of principle, obstructs the presumption of supremacy of one over the other. artificial intelligence, GDPR, digital humanism, rule of law, human dignity, constitutionalism
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Shishmareva, Tatyana, and Vladimira Dolinskaya. "Enforcement of the right to a bond of arrest in insolvency proceedings in Russia and Germany." E3S Web of Conferences 371 (2023): 05044. http://dx.doi.org/10.1051/e3sconf/202337105044.
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The legal status of depositors and the manner in which their claims are met are the subject of close research. The problem of bail is little studied in Russian doctrine. The purpose of the present study is to formulate, on the basis of regulation and doctrinal thinking in Germany, where the right to a bond of arrest has been successfully applied, a framework for the exercise of the right of a bond of arrest in insolvency proceedings (bankruptcy) for Russian legislation. The main methods of the study are: Comparative law, which allows the study of the theoretical provisions of the right to bail and the proposal of appropriate legislative designs; as well as the historical-legal method combined with the systematic method of analysis of the problem under investigation. Synthesis, interpretation and teleological methods are also used. The German experience of the legal regulation of a creditor whose claims are secured by the seizure of property has been used in the analysis of the problems of a bond of arrest. The legal nature of the right to bail, which is the subject of debate in the doctrine of Germany and Russia, has been analysed. It has been concluded that the right to an arrest bond is a special right of bail, together with a contractual and legal bond. It is substantiated that there is a gap in Russian law regarding the legal position of a creditor in insolvency proceedings (bankruptcy) in the event of securing his claims by seizure of the debtor’s property. It is considered to be a breach of the balance between public and private interests. It is justified that the right to a bond of arrest is subject to the law of procedural law and proposals have been made to regulate the legal position of creditors entitled to a bond of arrest in insolvency proceedings (bankruptcy).
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Mykhailichenko, Tetiana O., Oksana P. Horpyniuk, and Victor Yu Rak. "MEDICAL CONFIDENTIALITY DISCLOSURE IN CONDITIONS OF EPIDEMIC THREATS." Wiadomości Lekarskie 74, no. 11 (2021): 2877–83. http://dx.doi.org/10.36740/wlek202111203.
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The aim: To establish public opinion on the limits of medical confidentiality in an epidemic and the widespread use of applications that contain personal data, including those regarding health, to understand the possibility of changing the paradigm of public policy to protect medical confidentiality in an exacerbation of the epidemic situation. Materials and methods: This research is based on regulatory acts, scientific articles, and opinions of both medical workers and ordinary citizens of Poland, Germany, and Ukraine, judicial practice, doctrinal ideas, and views on this issue. Such methods as dialectical, comparative, analytic, synthetic, comprehensive, statistical, and generalization. Results: the results of a survey of residents of Poland, Germany, and Ukraine showed that one of the pandemic consequences was that a significant number of respondents were willing to partially renounce the right to medical confidentiality in the face of exacerbating epidemic threats to reduce the number of infected. Conclusions: In the face of the SARS-Cov-2 virus, nations worldwide have faced the challenge of respecting the right to privacy, particularly in terms of medical confidentiality. Virtual methods of patient communication with healthcare professionals use mobile electronic services (applications), and other new technologies in the context of the COVID-19 pandemic have exacerbated the issue of understanding the boundaries of medical confidentiality and personal data protection. In order to maintain an effective balance between human rights and public health, the mass collection and storage of sensitive personal data must take place following the Regulation of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. At the same time, it is expedient to recommend states to specify specific provisions of this Regulation in order to avoid an expanded interpretation of certain of its provisions.
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Lange, Felix. "American Liberalism and Germany's Rejection of the National Socialist Past—The 1973 Roe v. Wade Decision and the 1975 German Abortion I Case in Historical Perspective." German Law Journal 12, no. 11 (November 1, 2011): 2033–58. http://dx.doi.org/10.1017/s2071832200017697.
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Bünger, Dirk, and Thomas Schomerus. "Private Bodies as Public Authorities under International, European, English and German Environmental Information Laws." Journal for European Environmental & Planning Law 8, no. 1 (2011): 62–81. http://dx.doi.org/10.1163/187601011x559727.
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AbstractThe Aarhus Convention, the Directive 2003/4/EC and national legislation, respectively, give citizens a right of access to environmental information as held by either public authorities or private bodies. For such information to be accessible, the body in question must have public responsibilities or functions or provide public services such as natural gas, electricity, sewerage and water services etc. The United Kingdom (UK) Environmental Information Regulations 2004 (EIRs) and the federal German Environmental Information Act (EIA), however, provide insufficient definitions of the private bodies in question. The parallel existence of the EIRs/EIA and Freedom of Information Acts (FOIAs) in the UK and in Germany adds further complexity to the situation. Unlike the UK implementation under which there is specific guidance which gives relatively good advice, the situation in Germany is pitiable. A more citizen-friendly solution to these problems could be the creation of a joint statute. This joint statute would provide for a comprehensive list of covered authorities.
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Nehmelman, Remco. "Privacy on the European continent: the European Court of Human Rights, Germany and the Netherlands." International Journal of Human Rights and Constitutional Studies 1, no. 2 (2013): 141. http://dx.doi.org/10.1504/ijhrcs.2013.055631.
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Sanders, Anne. "COHABITANTS IN PRIVATE LAW: TRUST, FRUSTRATION AND UNJUST ENRICHMENT IN ENGLAND, GERMANY AND CANADA." International and Comparative Law Quarterly 62, no. 3 (July 2013): 629–65. http://dx.doi.org/10.1017/s0020589313000158.
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AbstractNeither in England, nor in Germany, nor in all Canadian provinces, does the law provide specific rules for the redistribution of property for unmarried cohabitants after the breakdown of their relationship. Instead, courts apply the law of trusts, contract and unjust enrichment with an eye to the characteristics of intimate relationships, as, for example, in decisions like the EnglishJones v Kernott([2011] UKSC 53) and the CanadianKerr v Baranow(2011 SCC 10). This article compares English, Canadian, and German case law and evaluates it both from a doctrinal perspective and as a part of a general approach towards cohabitation. The article concludes with an appeal for legislative action that strikes the right balance between party autonomy and protection of the weaker party.
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Abrosimova, Ekaterina A., and Ellina V. Vlasenko. "Inheritance of social media accounts in Germany and Sweden." Vestnik of Saint Petersburg University. Law 13, no. 2 (2022): 452–68. http://dx.doi.org/10.21638/spbu14.2022.210.
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The question how the legal framework may cover Internet relations is not new and has been discussed at least since the end of the 20th century. But over the past decade and a half, the electronic environment has been developing, while classification and regulation of new institutions raise some complexities. One of them is social media accounts. Their legal status as objects of rights is unclear since such accounts are a set of rights and relationships laying at the intersection of different institutions and law branches such as contractual relationships, copyright for posts and photos, personal correspondence, and privacy. At the same time, commercialization of social media accounts is gaining momentum, which turns them into an “electronic enterprise”. The purpose of this research is to identify order of inheritance of accounts in Sweden and Germany. These legal systems are close to the Russian one, the results obtained may be used to improve Russian legislation. Moreover, the authors know the relevant foreign languages, which allows them to analyze the legislation in detail. The object of analysis is the relationships that arise in connection with the need to determine the legal fate of a user’s account after his death. The scope of inheritance relations is chosen because this issue has become increasingly common in law enforcement practice. Besides, the Federal Supreme court of Germany recently issued a controversial decision which might affect German law, other European legal systems, or the relevant elements of the content of user agreements. The authors use the comparative method, methods of analysis, synthesis, deduction, and induction. The authors’ conclusion is the issue is unsettled. The solution proposed by the German Federal Supreme court is imperfect. In the article there are also some comments on improving Russian regulation, taking into account the experience of the legal systems studied.
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Lytvynenko, A. A. "The right of access to patient's health data: a comparative analysis of the case law of the European court of human rights, the European court of justice, and the practice of the courts of the United States and some European countries." Legal horizons, no. 20 (2020): 135–58. http://dx.doi.org/10.21272/legalhorizons.2020.i20.p135.
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The legal relationships between the physician and the patient involve a duty to maintain the confindentiality of information concerning the patient’s health which is based upon the acting legislation and case law. The non-fulfillment of the said duty mostly brings to civil or criminal responsibility. However, both legislation and case law of various states bear a substantial number of exemptions from the duty of medical confidentiality. With the enhancement of patient’s role in decision-making concerning his treatment, various issues concerning his data privacy arose. Apart from his data privacy maintenance, there is an issue of the patient’s right to access to his medical records. The purpose of access may not be as prosaic as it may initially look like, as in various jurisprudence, including the case law of international courts, plaintiffs frequently applied to courts to obtain an order for medical records productions so as to file an action against hospitals for negligence. Hence, medical records would be used as evidence of negligence at trial. The positions of the United States courts and the courts in Europe (the given paper embraces several trials from Germany and Portugal) may have divergencies concerning direct access to medical data, proprietary status of the health records, a right to access of third parties and its conditions, the categories of personal data banned from patient’s access under certain circumstances etc. The issue of access to medical records in known in the ECJ jurisprudence since the mid 70s, especially in a number of judgments wherein the plaintiffs sued various EEC bodies attempting to impugn the decision of their human resourse department concerning their ineligibility of holding a certain position in the structures of EEC – therein, the defendants did not give reasonable justifications for the such decisions and didn’t present any medical documentation to the prospective plaintiffs as a proof of their unfitness for office. Since the 1980s, similar actions were filed to the European Court of Human Rights. In some cases, not only the issue of the patient’s right to inspection of the respective health records was risen, but the aspect of accessing the information on plaintiff’s biological forbearers as well (trials of Odievre v. France and Godelli v. Italy).
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Barnert, Elena, and Natascha Doll. "Conference Impressions: The Persisting Riddle of Fundamental Rights Jurisprudence and the Role of the Constitutional Court in a Democratic State." German Law Journal 4, no. 3 (March 1, 2003): 277–80. http://dx.doi.org/10.1017/s2071832200015959.
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On January 15th 1958, the German Bundesverfassungsgericht (Federal Constitutional Court - FCC) pronounced a judgement deemed to be a prime example for the Court's early jurisprudence concerning the scope of fundamental rights in Germany: The Court's famous “Lüth”-decision resulted from a constitutional complaint brought by Erich Lüth, former member of the Hamburg senate.* In the early 1950s, Lüth had called upon film distributors and the public to boycott Veit Harlan's tearjerker movie Unsterbliche Geliebte (Immortal Beloved). Cause for his appeal was Harlan's prominent role in the Nazi propaganda machinery as Goebbels' protégé and director of the movie Jud Süss in 1940, which counts as one of the worst anti-semitic films released during the Nazi regime. After having lost several civil lawsuits, Lüth asserted the violation of constitutional rights. Over six years later, he was to be proved correct: The Federal Constitutional Court ruled that Lüth's complaint was covered by the right to freedom of speech guaranteed in Art. 5 of the German Basic Law (Grundgesetz). The Court stated that the fundamental rights as laid down in the Grundgesetz are not only of importance as subjective rights protecting the individual against state intrusions on the private sphere. As a whole they also unfold an objective dimension in representing society's crucial values. Therefore, they govern the entire legal order - including civil law and private law relations! This was indeed understood as a staggering conclusion with which the Court went far beyond the issue at stake. Since Lüth, German legal discourse characterizes this phenomenon as the third-party or horizontal effect of basic rights (Drittwirkung).
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Braun, Kerstin. "How Much Veil Is Too Much Veil: On the Constitutionality and Advisability of Face Veil Bans for German Public School Students." German Law Journal 18, no. 6 (November 1, 2017): 1331–58. http://dx.doi.org/10.1017/s2071832200022367.
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With increasing cultural and religious diversity in Germany, a debate has emerged over the extent and limits of religious freedom in day-to-day life. While much controversy arose over whether public school teachers have the right to wear Islamic head coverings, students as private individuals are free to wear a headscarf at school if they wish. Yet, recent school and administrative court decisions suggest that the situation is different for students who wear niqab and Islamic face veils rather than just head veils. This Article contemplates whether niqab-wearing students can be expelled from public school under current German law. In addition, this Article addresses the constitutionality of law reform in this area especially considering the European Court of Human Rights' jurisprudence in the French context. The Article subsequently contemplates the advisability of such law reform while also drawing on the experiences of countries which have already enacted so-called burqa bans. As many countries are currently in the process of considering face veil bans, this Article may have relevance beyond the German context.
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Salerno, Francesco. "Gli effetti della sentenza internazionale nell'ordinamento italiano: il caso Germania c. Italia." DIRITTI UMANI E DIRITTO INTERNAZIONALE, no. 2 (July 2012): 350–70. http://dx.doi.org/10.3280/dudi2012-002007.
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Article 10, para. 1, of the Italian Constitution ensures respect, within the Italian legal order, of the Judgment rendered by the ICJ on the 3rd of February 2012, in the Germany v. Italy case. By condemning Italy, the ICJ prevented those damaged by the wrongful acts perpetrated by Germany during World War II to claim compensation before the Italian courts. According to the ICJ, States can rely on immunity even for acts jure imperii in violation of jus cogens rules on armed conflict. Although this conclusion seems at variance with Articles 40-41 of the ILC Draft Articles on State Responsibility, national judges are bound by it. This obligation arises both from the primary rule Italy has violated, and from the obligation of reparation the ICJ placed upon Italy, calling on it to deprive of any legal effect all national judgments delivered so far against Germany. The Italian Constitution - under Article 10, para. 1, - allows for derogations on the constitutionally protected right of access to justice (Article 24) only insofar as equivalent remedies exist. Since there is no judicial alternative readily available to private individuals damaged by Germany during World War II, such individuals have a constitutionally protected right to call on Italy to exercise its diplomatic protection against Germany.
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Eggermont, M. "The Choice of Child Delivery Is a European Human Right." European Journal of Health Law 19, no. 3 (2012): 257–69. http://dx.doi.org/10.1163/157180912x639125.
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Abstract In a judgment of 14 December 2010, in the case of Madam Ternovszky v. Hungary, the European Court of Human Rights has considered that a State should provide an adequate regulatory scheme concerning the right to choose in matters of child delivery (at home or in a hospital). In the context of homebirth, regarded as a matter of personal choice of the mother, this implies that the mother is entitled to a legal and institutional environment that enables her choice. This contribution stresses in which sense the regulatory schemes in the Member States Belgium, Germany, the Netherlands, France and the UK concerning the choice of child delivery are in accordance with Article 8 ECHR, the right to respect for the private life. Do the Member States provide the legal certainty to a mother that the midwife can legally assist a homebirth? Or are restrictions made in interests of public health?
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Dyl, Krzysztof, and Grzegorz Janicki. "DOZÓR ELEKTRONICZNY." Zeszyty Prawnicze 5, no. 2 (June 14, 2017): 197. http://dx.doi.org/10.21697/zp.2005.5.2.09.
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Electronic MonitoringSummaryThe main reason for bringing up the idea of electronic monitoring program is not only the bill submitted by a group of members of parliament, but also its advantages for offenders and the society.The concept of electronic monitoring of offenders, first conceived by an American psychologist, Dr. Robert Schweitzgebel in the 1960s, has been developed and implemented in many countries (USA, Canada, the United Kingdom, Australia, New Zealand, Singapore, South Africa, Sweden and Holland.) Programs based on electronic monitoring provide offenders with a more human contact and give opportunities for rehabilitation and reintegration. Electronic monitoring can be used on a number of offenders and suspect groups and situations, including pre-trial defendants, defendants on a conditional release and convicts on probation, parole or house arrest. Electronic monitoring also seems to be an efficient way to keep the budgets under control.The article presents the main problems connected with the idea of electronic monitoring, such as: technical and criminological aspects, aspects related to human rights - the right to privacy, the right to equality - influence on the offender’s family, chances to avoid negative consequences of incarceration. It is certain that bringing electronic monitoring program into effect in Poland should be preceded by a thorough analysis of programs already introduced in other countries - that is why the article tries to compare and contrast programs effective in some of the countries (United Kingdom, Germany, United States, Australia). Furthermore the article presents opinions on the electronic monitoring expressed by Polish probation officers and penal judges as well as their hopes and anxieties.
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Abdelhadi, Mohamed Aboubakr. "THE RIGHT TO PRIVACY IN THE AGE OF PANDEMICS “A STUDY IN GERMAN AND EUROPEAN LAW”." مجلة الدراسات القانونية والاقتصادية 7, no. 1 (June 1, 2021): 1–60. http://dx.doi.org/10.21608/jdl.2021.174741.
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Laje, Alejandro. "The Sozialer Rechsstaat as a reference for privacy right and data protections laws in German jurisprudence." International Journal of Private Law 8, no. 2 (2015): 140. http://dx.doi.org/10.1504/ijpl.2015.076601.
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Gstrein, Oskar J. "Right to be forgotten: european data imperialism, national privilege, or universal human right?" Review of European Administrative Law 13, no. 1 (May 26, 2020): 125–52. http://dx.doi.org/10.7590/187479820x15881424928426.
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The Digital Age has fundamentally reshaped the preconditions for privacy and freedom of expression. This transpires in the debate about a "right to be forgotten". While the 2014 decision of the European Court of Justice in "Google Spain" touches upon the underlying issue of how increasing amounts of personal data affects individuals over time, the topic has also become one of the salient problems of Internet Governance. On 24th September 2019 the European Court of Justice delivered its judgment in "Google vs CNIL" (C-507/17) which was supposed to clarify the territorial scope of the right. However, this judgment has raised doubts about the enforceability of the General Data Protection Regulation, and reveals the complex, multi-layered governance structure of the European Union. Acknowledging such complexity at a substantive and institutional level, this article starts by analysing the judgment. Additionally, to better understand the current situation in the European Union and its member states, recently produced draft guidelines by the European Data Protection Board are presented and discussed, as well as two judgments of the German Federal Constitutional Court. Subsequently, the European developments are put in international context. Finally, the insights from these sections are combined which allows to develop several conceptual ideas. In conclusion, it is argued that the right to be forgotten remains complex and evolving. Its success depends on effective multi-layer and multistakeholder interaction. In this sense, it has become a prominent study object that reveals potential venues and pitfalls on a path towards more sophisticated data protection frameworks.
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Forsyth, Christopher. "ARTICLE 6(1) OF THE EUROPEAN CONVENTION AND THE CURATIVE POWERS OF JUDICIAL REVIEW." Cambridge Law Journal 60, no. 3 (November 21, 2001): 441–92. http://dx.doi.org/10.1017/s0008197301231195.
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The European Convention on Human Rights and Fundamental Freedoms makes no mention of any right to procedural justice in the making of administrative decisions. Any protection for such rights must be found in Article 6(1) which provides that in the determination of their “civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. But Article 6(1) was originally intended to apply to the determination of private law rights only and not to public law matters (see Le Compte, Van Leuven and De Meyere v. Belgium (1981) 4 E.H.R.R. 1, 36 (Sir Vincent Evans, dissenting); Konig v. Germany (1978) 2 E.H.R.R. 170 (Matscher J., dissenting)). The article plainly envisages judicial proceedings, and there are obvious difficulties in applying it straightforwardly to administrative proceedings.
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Kreis, Reinhild. "A ‘Call to Tools’: DIY between State Building and Consumption Practices in the GDR." International Journal for History, Culture and Modernity 6, no. 1 (March 28, 2018): 49–75. http://dx.doi.org/10.18352/hcm.539.
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This article discusses state attempts to politicize do-it-yourself activities in order to strengthen the regime of the Socialist Unity Party (SED) in East Germany. To be sure, for many East Germans DIY practices were a hobby and a pastime. Given the notorious shortage of consumer goods and the slow progress in improving standards of living in the GDR, however, it was also a strategy to overcome the shortcomings of the socialist society. The SED attempted to make a virtue out of this necessity by reinterpreting DIY practices as a personal contribution to the building up of the GDR and socialist society. Performed in the right way, practices of DIY were supposed to contribute to both the material and the ideological consolidation of the GDR. In order to direct DIY activities towards undertakings defined as most important by state and party officials, the regime developed particular organizational structures. The annual competition ‘Join in!’, on which this article focuses, addressed the housing situation and therefore one of the most pressing problems of the GDR. Calling upon the East German population to devote their leisure time to the creation of housing spaces, the renovation of state-owned apartment blocks, and the erection and preservation of parks and playgrounds, however, caused new problems. While the East German state tried to generate pride in communal facilities and in public goods rather than in private possessions, this ideal competed with practices of DIY where citizens used their handiwork to improve their private standard of life.
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Ledford, Kenneth F. "German Lawyers and the State in the Weimar Republic." Law and History Review 13, no. 2 (1995): 317–49. http://dx.doi.org/10.2307/743862.
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Over the course of the late winter and spring of 1933, the German Bar Association (DAV), along with most other institutions in Germany, submitted to “coordination” by the new National Socialist regime. Coordination in reality meant a takeover of the private legal profession by younger lawyers who were National Socialist activists, directed from Berlin. The traditional leadership of the German bar permitted itself to be replaced by newcomers, formerly far removed from the centers of power in professional institutions. Regional lawyers' chambers, despite minor delays and efforts to express solidarity with colleagues in leadership now defined as falling outside of the “racial community,” also succumbed. Within five months, a profession that nineteenth-century reformers had condidered a bulwark of civil soviety, and which had viewed itself as a rock of independence from both state and public, had bowed to the demands of a party whose leader viewed lawyers with contempt and valued race over right.
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Witt, Anne C. "Excessive Data Collection as a Form of Anticompetitive Conduct: The German Facebook Case." Antitrust Bulletin 66, no. 2 (March 10, 2021): 276–307. http://dx.doi.org/10.1177/0003603x21997028.
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In a high-profile decision of February 6, 2019, the German Federal Cartel Office prohibited Facebook’s data collection policy as an abuse of dominance for infringing its users’ constitutional right to privacy. The case triggered a remarkable interinstitutional dispute between the key players in German competition law. Conflicting rulings by the Düsseldorf Higher Regional Court and the German Federal Court of Justice further illustrate how deeply divided the antitrust community is on the role of competition law in regulating excessive data collection and other novel types of harm caused by dominant digital platforms. This contribution discusses the original prohibition decision, the ensuing court orders, and legislative reform proposals in the broader context of European Union and U.S. competition law.
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Abdelhadi, Mohamed Abubakr Abdelmaqsoud. "PROTECTING DIGITAL DATA PRIVACY AS A TRANSNATIONAL RIGHT AND NATIONAL SECURITY CONSIDERATIONS: A Study of the Judgement of Germany Federal Constitutional Court of 19 May 2020." مجلة حقوق دمیاط للدراسات القانونیة والاقتصادیة 6, no. 6 (July 1, 2022): 702–70. http://dx.doi.org/10.21608/mhdl.2022.248875.
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Neumann, Klaus. "The Appeal of Civil Disobedience in the Central Mediterranean." Journal of Humanitarian Affairs 2, no. 1 (January 1, 2020): 53–61. http://dx.doi.org/10.7227/jha.034.
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The European responses to irregularised migrants in the second decade of the twenty-first century have been qualitatively new not so much because of the often-celebrated cultures of hospitality in countries such as Germany and Sweden, but because of acts of solidarity that have challenged the prerogative of nation-states to control access to their territory. I discuss elements of the public response in Germany to the criminalisation of one such act, the search and rescue (SAR) operation of the Sea-Watch 3 in the Central Mediterranean in June 2019, which led to the arrest of the ship’s captain, Carola Rackete, by Italian authorities. I argue that while the response to Rackete’s arrest was unprecedented, it built upon a year-long campaign in support of private SAR missions in the Mediterranean, which drew on the discourse of rights and was therefore not reliant on a short-term outpouring of compassion. Rackete’s supporters have also been energised by alternative visions of Europe, and by the vitriol reserved for her by followers of the populist far right.