Littérature scientifique sur le sujet « Equality before the law – Greece »

The article analyzes the emergence and development of human rights in ancient Greece as a socio-historical phenomenon. The author finds that the term «human rights» originated relatively recently and finally became established after the adoption of the Universal Declaration of Human Rights by the UN General Assembly on December 10, 1948, but the ideas of equality and justice were traced in such ancient collections as Hammurabi's Laws, Moses' Laws, Old Testament, Laws of Manu, etc. It is established that the protection of individual rights in ancient times became widespread in ancient Greece, where human rights became a natural consequence of the polis form of democracy and were associated mainly with the concept of citizenship, which provided the equality of all members of the policy in the exercise of rights and freedoms, especially political. Consequently, the existence of human rights, recognized by most ancient Greek thinkers, in particular the principles of equality, justice, freedom and protection of individual rights are traced in the works of Homer, Hesiod, Pythagoreans, Democritus, Sophists (especially Protagoras, Antiphon, Lycophron, Alcidamas of Elaea), Socrates, Plato, Aristotle and Epicurus. Certain human rights provisions were included in the Draconian laws, which restricted the over-interpretation of the law by the archons, as well as Solon's reforms, regarding to, inter alia, the cancellation of the debts of the poor and the granting them of certain rights, including political ones. For ancient Greece, the notion of natural law, founded by Hesiod as a law by nature (feses), is fundamental. The Pythagoreans formulated the concepts of «appropriate measure» and «proportionality» as justice in human relations, which played an important role in shaping the ideas of legal equality of people. Democritus first raised the problem of individual human freedom, arguing that wise and good people, because they are able to comprehend the laws of nature and the highest justice, must live freely. The Sophists established the postulate of the fundamentality of natural law, contrasting it with positive law. Protagoras formulated the maxim: «Man is the measure of all things», which is in fact decisive in the modern concept of human rights and freedoms, where man is proclaimed the highest value. Protagoras and Antiphon substantiated the idea of equality of all people by nature. Alcidamas of Elaea, and later the Stoics developed the idea of equality of all people, including slaves. Lycophron declared personal rights an inalienable natural right. Socrates recognized political freedom, in accordance with the requirements of reason and justice, a beautiful and majestic property for both man and the state. Plato, like Socrates, identified legality (law) and justice. He proclaimed the principle of equality of all before the state, regardless of origin and gender. Aristotle distinguished between distributive and equalizing justice, which is the basis of modern legal understanding. He argued that natural law personifies political justice, which is possible only between free and equal people. Epicurus believed that justice, which comes from nature, is also a socially contractual phenomenon. He substantiated the ethical autonomy of man.

The minority in Western Thrace, Greece, has long enjoyed a special status where family and inheritance matters were subject to Sharia law and religious jurisdiction (Mufti). After judicial controversy for many years over the compulsory character of this “minority privilege”, the matter has been brought before the European Court of Human Rights (ECtHR). In view of the hearing of the case of Molla Sali v. Greece before the Grand Chamber, the Greek Parliament voted for the possibility for the members of this minority to choose either religious or civil law and jurisdiction—a right for them to exit the minority community. Although a step forward, this right raises a serious challenge to the rule of equality before the law and the right to a fair trial. Therefore, the paper seeks its possible legal foundations in the international obligations of the Greek state to protect religious freedom and the minority community and stresses the need to be accompanied by the “right to voice”, meaning a true reform of the procedure before the Mufti and an effective constitutionality control of his decisions.

The article deals with the historical stages of the creation, development, and formation of a human rights institute. The ideological and theoretical heritage of Ancient Greece and Rome, which is the basis for the study of ideas about justice, social equality, and human freedom, is analyzed based on the analysis of the fundamental ideas of the most famous thinkers of antiquity. It was the philosophers of antiquity who initiated the concept of "natural law", which was formed over the centuries by the desire of man to understand the world, determine his place in society and politics. From the time of antiquity, the concept of human rights gradually began to emerge; Subsequently, the concept of equality, freedom of person, person, and citizen were formed. Ancient philosophers came up with the idea of law in general and the idea of human rights under the requirements of their time and conditions of social development. Over time, the ancient perception of social equality, justice, dignity, independence, and freedom of man became the starting point and benchmark of European political culture. The early period of the development of political and legal doctrines in ancient Greece is associated with the time of the formation of ancient Greek statehood. It was at this time that an attempt was made to give rationalist ideas about ethical and legal order in human affairs and relations instead of mythological ones. It should be noted that ancient Greek views on human rights were formed in mythological ideas about the origin of policies and divine justice. That is why rights come from the divine order of justice, which became the basis for the category equality. Only what corresponded to the concept of equality (within the concept of justice) was understood as right. In ancient Greek politics, customs and mono-norms gradually transformed towards protecting the dignity of citizens. The polite democracy gave impetus to the emergence of freedom, which promoted the emergence of equal political rights among the citizens of this policy. In the Greek city-state, the law first emerged as a specific phenomenon, and the life of the policy began to be compulsory for everyone. Subsequently, the Pythagoreans (VI –V centuries BC) formulated an important role in shaping the idea of legal equality and justice, using numerical proportions, that is, the ratio of certain parameters. The provision that "fair is to pay another equal" essentially introduces the coupon principle. Subsequently, this reflected Solon (7th-6th centuries BC) in his reforms. It eliminated debt slavery and, as a result of the compromise between nobility and demos, introduced a moderate censorship democracy in Athens. All citizens of the policy should equally be protected by the law and obey its mandatory rules (1). Recognized the law as a requirement of legal equality of free citizens of the policy, slaves did not apply the legal rules. Equality was considered in two respects: equality in law and equality before the law. Developed by Roman lawyers provisions in which a person acts as a subject of law, determine the legal status of a person, establish the freedom and formal equality of people under natural law, define Roman citizenship as a special legal status of a person, the distribution of the right to private and public, etc. contributed to the awareness of legal the importance of human rights in the context of the systematic doctrine of the legal nature of the relationship between the individual and the state. Roman law, extending to a state which it regarded as the object of its study along with positive law, ensured a legal relationship between the state and the individual, which was crucial for the development of the institution of the protection of individual rights in the world at that time (14, p. 119). In relation to individuals, the state was not above the rule of law, but directly its component part, which has all the basic properties of a law. The basis of a just and legal relationship between the individual and the state recognized the law, not the state. The individual and the state must be law-abiding subjects of legal relations, that is, act according to the rules of law. Conclusion. To sum up, we can point out that the first theoretical developments and statutory provisions of the law go back to ancient times. The thinkers of Ancient Greece and Rome initiated the basic concepts of justice, equality, autonomy. It was then that ideas about political rights, lawmaking, democracy, and the personal responsibility of citizens were formed. However, freedom was not universal, it did not belong to slaves, and they were not the subjects of relations in the policy. The population of the policies was divided into different social and ethnic groups and accordingly had different legal status. Such inequality was the norm, so the priority was given to a policy or state that was enshrined in legislation. However, in Ancient Greece, there were also certain individual rights of citizens such as the right to speak; private property rights; the right to participate in government; the right to hold office; to participate in national meetings; the right to participate in the administration of justice; the right to appeal against illegal acts, etc. In Ancient Rome, this list was supplemented by the right to bargain, freedom of movement, the right of the people's tribune to veto, the ban on torture, the adversarial process of the lawsuit, etc. Keywords: Antiquity period, city-policies, human rights, legal equality, society, justice.

On September 29, 2009 the Presidential Decree on Environmental Liability that implements the Environmental Liability Directive came into force. Environmental protection was previously provided in legislative works as well, such as in the Constitution and in the Law on Environmental Protection, which are shortly portrayed. Though, through the Presidential Decree on Environmental Liability, long awaited land protection legislation in Greece finally came to pass. The definitions set out, the competent authorities, the preventive and remedial actions, as well as the offenders liable for the preventive and remedial costs are analysed. Equally the cases of multiple party causation foreseen, that include contributory negligence of operator, producer, importer, supplier and public authority, are set out. During this analysis, a comparative view of the final form of the Degree with the initial draft thereof is offered. Special mention is made of the polluter-pays principle in Greece that is compared with the ones in the United Kingdom and in Germany. Finally, some aspects that have not been regulated in the Presidential Decree, contrary to those in the United Kingdom, Germany and The Netherlands, are noted.

AbstractMost scholars generally pre-suppose that the concept of democracy is the exclusive creation of classical Greece and a token of the West to the rest of the world. This concept has originated mainly due to the fact that much of the ancient Iranian history was only known through classical Greek writings before the ever-increasing archaeological finds and decipherments of ancient Near Eastern primary sources, which have shed a very different light on the subject. This paper attempts to alleviate and restore a few of the more vital recurring misunderstandings, misinterpretations and misconceptions in this field, and endeavours to present them in a more realistic historic and historiographic perspective in the light of the latest available scholarship. Beginning in 2200 B.C. Old Elamite Kingdom, was the first manifestation in the world of a structured and, at times, democratically elected heads of state based on matriarchal right of descent. Beginning in Elam and continuing at least to the beginning of the Islamic period, no ancient peoples, including the Greeks and the Egyptians, have surpassed the practice of the rights of women, and the equality of men and women as in Iran. In early 7th century B.C. Iran, the pronouncement by Zoroaster, through Avestan literature, was the first manifestation of the rights of women and unequivocal equality of gender in all aspects and positions of society. In the second part of the 7th century B.C. Media, we encounter the ratification by popular vote of the first constitution for a democratically elected confederated empire, headed by Dioces, who was the first recorded popularly elected emperor. In 539 B.C., we come upon the declaration of the first generally accepted Charter of Rights of Nations by Cyrus the Great. In 522-486 B.C., in the reign of Darius the Great, appeared the first confirmation of a written entrenched democratic constitution. In the 4th century A.D. (or earlier) Sasanian Iran, the first appearance of an advanced system of Common Law based on well-documented jurisprudence was materialised. And finally, the confederated system of government in Iran, which survived the vicissitudes of history and changes of several dynasties, remained in force one way or the other to become the most enduring system of government in world history spanning a period of two-and-half millennia.

Like all European countries, Greece has developed its national legislation based on the principles of equality and the right of representation, but there is no separate, specific mental health law in Greece. This paper describes the law for involuntary psychiatric admission. The law concerning criminal and civil responsibility and the law relating to individuals with addictions committing drug-related crimes are also outlined.

Ronald Dworkin has achieved prominence in the field of jurisprudence through his book, Taking Rights Seriously, (hereafter TRS) his many articles in the "New York Review of Books," and other publications that pursue a coherent philosophy for liberals. In response to criticism of his earlier work, Dworkin has expanded and clarified his liberal position on equality rights. This thesis will address how Dworkin's later writings attempt to fill in gaps that occur in Dworkin's first arguments for a hierarchical, principled picture of the law. It will be argued here that Dworkin's views require an unusual perspective on the concept of an individual, and this renders his rights-based political morality seriously deficient. The nature of Dworkin's theory is first indicated by an attack on the "ruling theory of law" which he characterizes as positivistic when asked what the law is, and utilitarian when required to decide what the law should be. His central criticism charges that legal arguments are incomplete without principles which refer to or are implications of rights. Dworkin's liberal political morality is founded on rights to equal respect and concern. The elaboration of what these rights mean is sustained throughout Dworkin's publications. He maintains that his liberal rights-thesis is the theoretical articulation of the constitutional right to equality. Applying Dworkin's rights-theory to the Regents of the University of California v. Bakke2 case illuminates many of the more abstract aspects of his views. This thesis will argue against Dworkin by focusing on the too-narrow conception of individuals implied by his theory of rights. The ideal Dworkin employs of a right to 'equality of resources' justifies an aggressive redistributional scheme, unchecked by a fuller conception of what is an individual. Dworkin is only able to hold his ideal of a right to 'equality of resources' together with his notion of individual rights by accepting a diminished concept of the individual. This argument suggests that a fuller conception of an individual recognizes the connection between merit and entitlement. Dworkin's scepticism regarding the feasibility of merit being protected by individual rights is undercut by introducing a distinction between merit and success. Leaving key aspects of an individual, such as merit and its related features, out of official deliberation about rights, conceptually inhibits the extent of individualizability in a rights theory. If we wish to maintain such features, and value their protection and cultivation by a political order, adopting Dworkin's rights-thesis and its consequences is impossible.
Arts, Faculty of
Philosophy, Department of
Graduate

Giving effect to the constitutional right to equality and the peculiar nature thereof in a heterogeneous society such as South Africa has proved to be a perplexing task. This is apparent when analyzing case law on the subject which demonstrates that our courts are regularly confronted with complex equality claims, and as a consequence, naturally have to make difficult decisions which in turn contribute toward our emerging and developing equality jurisprudence and ultimately the achievement of the constitutional standard of equality. This treatise considers substantive equality as a species of equality in the workplace and the defence of affirmative-action justification in terms of section 6 of the Employment Equity Act. In doing so, it outlines the seemingly peculiar application of affirmative action in a society that was once divided along racial and gender lines, a society that has once experienced one of the most severe forms of racial discrimination in the form of apartheid and its associated laws, policies and practices. This oppressive political regime had the effect of entrenching a deep legacy of racism, deprivation, exclusion and discrimination into the social fabric of society, which in turn had a disproportionate impact on the majority of people or categories of people relative to an elite minority. The legacy of this oppressive political system remains alarmingly evident today. The treatise reveals the challenges and difficulties a society faces in attempting to break with past patterns of disadvantage and its efforts to build a society that is non-racist, non-sexist, socially just and inclusive. The Constitution with its transformative vision should be considered the genesis of this credible and abiding process of redress. It is this exercise of redress coupled with the Constitution’s transformative mandate that raises difficult issues of restoration and reparation for past injustice, and the most appropriate and accommodating manner to do so. In addition to the Constitution, Parliament has enacted national legislation as a transformative agent in the workplace. The EEA as a legislative instrument was designed to give effect to the constitutional right to equality in the workplace. It emphatically prohibits unfair discrimination, but also obliges designated employers to implement affirmative-action measures. For such measures not to be unfairly discriminatory, they must be consistent with the purpose of the EEA. A plain reading of the EEA reveals that it does not provide sufficient guidelines for valid affirmative action. However, the EEA provides an interpretive injunction in that it must be interpreted in light of the Constitution and international law. In this regard the Constitutional Court in Minister of Finance v Van Heerden 1 in interpreting the Constitution, developed a test to assess whether a restitutionary measure such as affirmative action is in fact and in law a valid measure. To date this test is generally not followed, despite the authority of the judgment. In this regard, the courts have developed sound, but sometimes inconsistent principles and standards to test for the validity of affirmative action and to adjudge whether such measures are compliant with the Act. The test has also recently been reaffirmed in the recent judgment of South African Police Service v Solidarity obo Barnard.2 It is anticipated that affirmative-action case law will henceforth develop along the same lines. In this we appreciate judicial guidance and supervision in interpreting and pronouncing upon the legitimacy and validity of affirmative-action measures.

During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other.
Abstract

Thesis (M.S.) -- Central Connecticut State University, 2009.
Thesis advisor: Jennifer Hedlund. "... in partial fulfillment of the requirements for the degree of Master of Science in Criminal Justice." Includes bibliographical references (leaves 45-48). Also available via the World Wide Web.

The fight against welfare fraud currently sees an increased focus from Norwegian authorities. This attention is connected to the narratives of real and perceived threats to the welfare state, where welfare fraud not only implies the misappropriation of government funds but may also be detrimental to the public’s support of the welfare state. This paper investigates the relationship between gender and sentencing in cases concerning welfare fraud tried in the Norwegian Court of Appeal (Lagmannsretten). Based on the literature on gender bias in sentencing, particularly from an American perspective, the main hypothesis proposed was that women received more lenient sentences than men. The secondary hypotheses proposed that aggravating and mitigating circumstances would correlate with the type of punishment being awarded, i.e. custodial, probation and community sentence. Further, mitigating circumstances would have a positive correlation with probation and community sentence, while aggravating circumstances would have a negative correlation on the same punishment categories. Finally, these correlations would correlate stronger in a positive direction for females, and stronger in a negative direction for males.SPSS was used to conduct descriptive and regression analyses on a data material which was organized in MS Excel. The data was collected through the online source Lovdata.no.Drawing on the research of Daly, 1989; Bickle & Peterson, 1991; Williams, 1999; Spohn & Holleran, 2002; Doerner & Demuth, 2012; Embry & Lyons, 2012; and Bontrager & Stupi, 2013, especially that of ”courtroom paternalism”, the findings of the thesis echoes that of previous work on the the field of gender bias in sentencing. The results showed a correlation between gender and type of punishment: females had a proportionately higher frequency of probation and community sentence than that of males. When taking into account aggravating and mitigating circumstances, strong correlations where identified between females and community sentence, and moderate so with probation and females. With regards to custodial, few differences between the sexes were found. However, one would benefit from further research into the aggravating and mitigating circumstances, for instance by conducting interviews.

Thesis (LLD (Public Law))--University of Stellenbosch, 2010.
ENGLISH ABSTRACT: The guarantee of a fair trial is fundamental to the criminal process of every modern society. Like all civilised nations, Botswana’s legal order provides for the protection of accused persons through the guarantee of a fair trial. But equality of arms, a central feature of medieval trial by combat, seems to have disappeared from modern criminal procedural systems. The question arises, therefore, whether criminal justice systems sufficiently cater for the fair trial of accused persons. This thesis will argue that the present legal and institutional framework for the protection of fair trial rights in Botswana falls short of guaranteeing procedural equality and that this severely compromises fairness. The institutional framework does not support equality of arms and therefore leaves procedural rights in a basic state of application. The thesis, therefore, seeks to analyse the protection of fair trial rights in Botswana in light of the principle of equality of arms. The thesis explores the origins and theoretical foundations of the principle. It recognises that the present application of the principle occurs by implicit countenance. The absence of any constitutional recognition of the principle leaves procedural rights in a basic state of application. The thesis discusses the practical implications of an express recognition and constitutional application of the principle in the adversarial system. Equality of arms should be central in the criminal process and no party should have an unfair advantage over the other. The thesis recognises that the prosecution is in a position of advantage in that it has the support of the state. This advantage manifests itself in the form of vast resources regarding expertise, investigatory powers and legislative powers. Disparities in resources, the ability to investigate and access to witnesses create an inequality of arms between the state and the accused. This can only be balanced and countered by empowering the accused with constitutional and procedural rights that specifically protect the accused in the face of the might of the state. These procedural rights include the presumption of innocence, the right to legal representation and the right to disclosure. It is argued, however, that though accused-based rights and constitutional rules of procedure generally protect the accused and ensure that the process is fair, they mainly remain theoretical declarations if they are not applied in line with equality of arms. In other words, the meaningful enjoyment of these rights by the accused, demands the strengthening of resources and legislative and institutional governance. Fairness in criminal trials is epitomised in the balance between the overwhelming resources of the state and the constitutional protection of the accused. Otherwise, the constitutional protection afforded to the accused is compromised. The first part engages the reader with the development of accused-based rights and introduces the constitutionalisation of procedural rights in Botswana. It discusses the scope and application of the principle of equality of arms, develops its relevance to the adversarial system and justifies an application of the principle in Botswana domestic law. It makes a comparison between the adversarial and inquisitorial models while recognising the growing tendency towards convergence. It highlights the adversarial system as interest-based, and recognises the indispensability of the principle of equality of arms to such a system. While recognising that inquisitorial procedures often offend equality of arms, the role of the inquisitorial system in ensuring equality of arms is also recognised. It measures and analyses the normative value, application and recognition of equality of arms in Botswana’s legal system, arguing for express recognition and a conceptual application of the principle by the courts. It is reasoned that express recognition of the principle will result in fuller protection and better realisation of accused-based rights. Exploring the adversarial-inquisitorial dichotomy, it recognises the need for convergence, but emphasises the principle of equality of arms and the right to adversarial proceedings as the foundation for fair trials. The second part analyses the investigation process and generally bemoans the great inequalities at this stage of the criminal process. It discusses procedural and evidential rules that serve to minimise the imbalances and the role that exclusionary rules play in ensuring fair trials and reliable verdicts. The third part identifies specific trial rights which are relevant to the principle of equality of arms. Central to the discussion are the right to legal representation and the presumption of innocence which are discussed in chapters 7 and 8 respectively. These two important rights are central to the protection of the accused but unfortunately are the most compromised due to lack of resources and legislative intervention. Chapter 9 deals with other rights that are relevant to the principle as well as the ability of the accused to present his case and effectively defend himself. It emphasises the need for the courts to engage in the trial, thereby enabling the unrepresented accused. The fourth part contains final conclusions which argue that the principle of equality of arms forms the basis for the full realisation of individual procedural rights and advocates for the recognition of the principle in the Botswana legal order. It is concluded that the constitutional enshrinement of fair trial rights and their basic application by the courts, without actual measures to ensure their realisation, are insufficient. Suggestions include legislative and institutional reforms, as well as a constitutional recognition of the principle of equality of arms.
AFRIKAANSE OPSOMMING: Die waarborg van ‘n billike verhoor is fundamenteel tot die strafprosesregstelsel van elke beskaafde gemeenskap. Soos in ander beskaafde lande, word die beskuldige in Botswana ook beskerm deur die reg op ‘n billike verhoor. In die Middeleeue was gelykheid van wapens (“equality of arms”) die sentrale kenmerk van die tweegeveg as geskilberegtigingsmetode. Dit blyk egter dat hierdie sentrale kenmerk afwesig is in moderne strafprosesregstelsels is. Die vraag ontstaan of hierdie toedrag van sake ‘n beskuldige se reg op ‘n billike verhoor op risiko plaas. In hierdie tesis word betoog dat die posisie in Botswana van so ‘n aard is dat “ongelyke bewapening” veroorsaak dat die reg op ‘n billike verhoor belemmer word. Die plaaslike institusionele bedeling onderskraag nie die beskerming van gelykheid van wapens nie en veroorsaak derhalwe dat prosessuele regte in “a basic state of application” is, met ander woorde, op ‘n eenvoudige en meganiese toepassingvlak is. Met die norm van gelyke bewapening as vertrekpunt, ondersoek hierdie tesis die beskerming van die reg op ‘n billike verhoor in Botswana. ‘n Ondersoek word geloods na die oorsprong en toereriese basis van die beginsel van gelyke bewapening. Die afwesigheid van uitdrukklike grondwetlike erkenning van die beginsel, word vergelyk met die praktiese implikasies en uitdruklike grondwetlike erkenning en toepassing in ‘n adversatiewe stelsel. Gelykheid van wapens behoort sentraal tot die strafproses te wees en geen party behoor ‘n onbillike voordeel bo die ander te geniet nie. In hierdie tesis word erken dat die vervolging bloot vanweë die feit dat dit deur die staatsmasjienerie ondersteun word, wesenlik bevoordeel word bo die individu as aangeklaagde. Dit gaan hier om toegang tot hulpbronne soos deskundigheid, asook die rol wat misdaadondersoekmagte en ander wetgewing speel. Ongelykhede byvoorbeeld in hulpbronne, in die vermoë om misdaad te ondersoek en in die toegang tot getuies, dra alles daartoe by dat ‘n wanbalans tussen die staat en die individu ontstaan. Die verlening van prosessuele regte aan die beskuldigde is ‘n metode om die balans te probeer herstel. Voorbeelde van sulke regte is die reg om onskuldig vermoed te wees, die reg op ‘n regsverteenwoordiger en die reg op insae in verklarings. In hierdie tesis word egter betoog dat alhoewel hierdie regte en ander grondwetlike strafprosedures die beskuldigde kan beskerm en die billikheid van die proses kan bevorder, dit absoluut noodsaaklik is dat voormelde regte en prosedures in lyn met die beginsel van gelykheid van wapens geïnterpreteer en toegepas moet word. Betekenisvolle afdwinging en toepassing van ‘n beskuldigde se regte verg versterking van bronne en die institusionele bedeling. Billikheid in die strafverhoor word gekenmerk aan die graad van balans wat bereik kan word tussen die oorvloedige hulpbronne van die staat teenoor die grondwetlike beskerming van die beskuldigde. In die afwesigheid van ‘n balans, word die beskuldigde benadeel. Die eerste gedeelte van hierdie tesis behandel die ontwikkeling van die beskuldigde se regte en bevat ‘n inleiding tot die konstitusionalisering van prossuele regte in Botswana. In Deel Een word die omvang en toepassing van die beginsel van gelykheid van wapens bespreek en word die relevantheid van hierdie beginsel in die adversatiewe proses identifiseer, veral wat Botswana betref. Die adversatiewe en inkwisitoriese modelle word vergelyk en bespreek met erkenning aan die moderne neiging dat die twee modelle besig is om in een te vloei – die sogenaamde verskynsel van “convergence”. Daar word aangetoon dat gelykheid van wapens die adversatiewe model onderlê. Hierteenoor is dit so dat die inkwisitoriese model ook erkenning aan gelykheid van wapens verleen. Daar word betoog dat gelykheid van wapens ‘n normatiewe waarde het en uitdruklik in Botswana deur die howe erken moet word. Uitdruklike erkenning sal tot groter beskerming en realisering van ‘n beskuldigde se regte lei. In Deel Een word ook tot die slotsom geraak dat alhoewel daar ‘n behoefte aan “convergence” is, dit onvermydelik tog ook so is dat gelykheid van wapens en die reg op ‘n adversatiewe proses die grondslag van ‘n billike verhoor vorm. In Deel Twee word die misdaadondersoekproses ontleed en word die grootskaalse ongelykhede wat hier onstaan en bestaan, bespreek. Daar word gelet op prosesregtelike en bewysregtelike reëls wat hierdie ongelykhede kan minimaliseer. Die rol van uitsluitingsreëls ter bevordering van ‘n billike verhoor en ‘n betroubare bevinding, word ook aangespreek. Deel Drie identifiseer spesifieke verhoorregte wat in ‘n besondere direkte verband met die beginsel van gelykheid van wapens staan. Hier is veral twee regte van besondere belang: die reg op ‘n regsverteenwoordiger (hoofstuk 7) en die reg om onskukdig vermoed te wees (hoofstuk 8). Ongelukkig is dit so dat hierdie twee regte erg ondermyn word. Die reg op resverteenwoordiging word ingekort deur ‘n gebrek aan finansiële bronne terwyl die vermoede van onskuld deur wetgewing ondergrawe word. In hoofstuk 9 word ander relevante regte bespreek en word die noodsaak van ‘n aktiewe hof in die geval van ‘n onverteenwoordigde beskuldigde bepleit Deel Vier bevat finale gevolgtrekkings. Daar word betoog dat die beginsel van gelykheid van wapens die basis vorm in die volle relisering van individuele regte en, verder, dat hierdie beginsel ten volle in die regstelsel van Botswana erken behoort te word. Blote grondwetlike verskansing van die grondwetlike reg op ‘n billike verhoor en ‘n blote basiese interpretasie daarvan deur die howe, is onvoldoende wanneer daar geen maatreels is om die haalbare realisering af te dwing nie. Wetgewende en institusionele hervorming is nodig, asook ‘n grondwetlike erkenning van die beginsel van gelykheid van wapens.
Research funds made available by Prof. S. E. van der Merwe

AbstractTurkey has had a unique and troublesome relationship with the Istanbul Convention. It was both the first country to ratify the Convention and the first country to withdraw from it after implementing the Convention for six years. This chapter focuses on the legal steps taken by Turkey between its ratification and its withdrawal from the Convention. In this analysis, I argue that, even before its withdrawal, Turkey had been sweeping between two ends: its progressive legal steps to address violence against women on one hand, and its legal and political attitude threatening gender equality in general, on the other. This chapter, therefore, argues that Turkey was already failing to effectively implement the Convention, and its withdrawal from the Convention should only be considered a reflection of Turkish government’s insincerity in its political commitment to address gender-based violence from the outset.

AbstractThe role of international law and of international lawyers is at its best when it results in a ‘work of reconciliation and realistic construction’ (Dag Hammarskjöld, 1953). Unfortunately, it is difficult to find much of this spirit in the unfolding, regrettable and never-ending saga of Germany versus Italy. In answering the basic question of whether Germany is obliged to negotiate a settlement with Italy, this chapter argues that even if there is no hard and fast legal obligation, there is a political and moral obligation to negotiate a settlement, as indicated by paragraph 104 of the Jurisdictional Immunities Judgment of the International Court of Justice (ICJ); the same obligation is incumbent upon Italy. The current legal ‘black hole’ cannot be filled by further proceedings before the ICJ because immunity serves the value of the equality of states, yet equality is not a value in its own sake but is functional to the preservation of peaceful and orderly international relations and to the ‘realistic construction’ of conditions for the fulfilment of human rights. Negotiations in view of the creation of a joint German–Italian fund for the reparation of victims is the appropriate way to overcome the present impasse and to do justice to a whole class of victims who so far have fallen into oblivion.

AbstractThis chapter argues not only that there is no European Sonderweg (or ‘special way’) when it comes to the law of state immunity but that there ought not to be one. Debates within The Hague Conference on Private International Law in the late 1990s and those leading to the adoption of the 2002 UN Convention on Jurisdictional Immunities of States, as well as the development of the EU Brussels Regulation on Jurisdiction and Enforcement, as amended in 2015, all demonstrate that state immunity was not meant to be limited by such treaties but ‘safeguarded’. Likewise, there is no proof that regional European customary law limits state immunity when it comes to ius cogens violations, as Italy and (partly) Greece are the only European states denying state immunity in such cases while the European Court of Human Rights has, time and again, upheld a broad concept of state immunity. It therefore seems unlikely that in the foreseeable future a specific European customary law norm on state immunity will develop, especially given the lack of participation in such practice by those states most concerned by the matter, including Germany. This chapter considers the possible legal implications of the jurisprudence of the Italian Constitutional Court for European military operations (if such operations went beyond peacekeeping). These implications would mainly depend on the question of attribution: if one where to assume that acts undertaken within the framework of military operations led by the EU were to be, at least also, attributable to the troop-contributing member states, the respective troop-contributing state would be entitled to enjoy state immunity exactly to the same degree as in any kind of unilateral military operations. Additionally, some possible perspectives beyond Sentenza 238/2014 are examined, in particular concerning the redress awarded by domestic courts ‘as long as’ neither the German nor the international system grant equivalent protection to the victims of serious violations of international humanitarian law committed during World War II. In the author’s opinion, strengthening the jurisdiction of international courts and tribunals, bringing interstate cases for damages before the International Court of Justice, as well as providing for claims commissions where individual compensation might be sought for violations of international humanitarian law would be more useful and appropriate mechanisms than denying state immunity.

This chapter considers two areas where The Satanic Temple has attempted to participate in institutions that nominally promote religious pluralism and tolerance: a 2014 black mass hosted through a cultural studies club at Harvard University and attempts to lead prayer invocations before city councils, following the 2014 Supreme Court decision Greece v. Galloway, which ruled that sectarian prayers may be offered provided no religion is excluded. In both cases, tremendous efforts were made to block The Satanic Temple from participating in these institutions. Several city councils passed new laws restricting prayer invocations rather than let The Satanic Temple participate. The Satanic Temple’s opponents did not frame their response as intolerance; rather, they claimed that The Satanic Temple is engaged in hate speech and must be censored. Analysis examines these responses and considers whether these institutions practice the values of tolerance and religious pluralism as they purport to.

Observing the principle of equality when drafting punitive texts is one of the basic components of successful legislative drafting . And that equality before the law is closely related to justice, because justice requires the formulation of the rules of the law in a general and abstract manner in a way that all those who address the law enjoy its protection and are subject to accountability. Since there are international charters and treaties that Iraq has joined or ratified, most of them contain explicit texts about the equality of individuals before the law. Therefore, the legislative drafting of punitive texts in a manner that achieves equality is an implementation of the international obligations resulting from ratification or accession to these international conventions and treaties. In addition, laws that are legislated in contravention of the principle of equality are considered unconstitutional laws because they are in violation of the Constitution, and the provisions of ordinary law may not contradict the principles of the Constitution.

"This research enters into the field of philosophy of law. He investigated it about the positive differentiation of women in legal thought. After defining the assumptions of the concept, such as the necessity to distinguish between formal equality, and real equality, because positive differentiation is a privilege given to the disadvantaged as if it appears to create inequality, and it is formed until it compensates them with the forbidden, which was practiced before and is now practiced. And that positive differentiation is not only concerned with women but also with all other disadvantaged groups, such as minorities, children and the elderly, even if the female component is more visible. So it entered into the global legislative policy, whether in international law or in national law, so would hold international agreements, hold conferences and establish international organizations for that. Positive differentiation is considered a subsidiary legal principle and complementary to the principle of equality and fairness, and for this existence is related to the existence of that principle, and it is known that the principle are not often written in legislation, but the legislator must take them into account when setting legal rules. Positive the positive differentiation as a legal principle that is observed in global legislation, and the legislator in the Kurdistan region of Iraq tried to observe the principle at a time when the federal legislator did not pay much attention to the principle, and this legislative policy in the region is more in line with the global legislative policy, and this is why the Kurdistan legislator tried to repeal or amend federal law Or legislate new laws in implementation of the principle that fall within its powers, so the anti-family violence law is a perfect example of this, which has no parallel in Iraq so far."

Women's participation in the labor market in Central America is low for the international standard. Increase such participation is on the agenda of many policymakers who want to improve women's access to quality employment. In this paper, we use data from Central America, Panama, and the Dominican Republic to assess whether gender equality in the law helps increasing women's participation in the labor force and, therefore, boosts GDP per capita. The study is based on two econometric methodologies to evaluate distinct aspects of the economic mechanism.

On 4 February 2022, the Polish Journal of Laws published a new ordinance of the Minister of Education and Science, implementing cuts in the funding of education of German as a minority language. Consequently, the hourly length of such lessons will be significantly reduced. This regulation applies exclusively to the German minority, and the official motive for introducing discriminatory measures is to improve the situation of Polish diaspora in Germany. This is the first time after 1989 when the Polish state authorities introduce a law limiting the rights of Poland’s citizens belonging to a national minority (in this situation children), as a retaliation for the alleged situation of a kin-community elsewhere. Importantly, the adopted regulations are not only discriminatory towards one of the minorities; their implementation may in fact contribute to the dysfunctionality of the entire minority education system in Poland. This is also an obvious violation of the constitutional principle of equality before the law, the right of minorities to ‘maintain and develop their own language’, international standards of minority rights protection, as well as a threat to the very functioning of human rights protection mechanisms in the country.

Notwithstanding the point that definitions of ‘civil society’ and ‘democracy’ are themselves actively debated, this rapid review defines democracy as ‘liberal democracy’, which goes beyond elections to include liberal components such as equality before the law, individual liberties, rule of law, and independent judiciary and legislature that constrains the executive (Grahn and Lührmann, 2020, p.8). Civil society is defined as “an organizational layer of the polity that lies between the state and private life composed of voluntary associations of people joined together in common purpose” (Coppedge et al. 2016, p.413). Thus, this rapid review seeks to find out what evidence is there on the relationship between civil society and democratic freedoms? The overall sense from the vast array of literature that looks at the relationship between civil society and democratic freedoms is that civil society is important for democracy, but there is no “automatic flow” from one to the other. Rather, the relationship is contingent on the nature of civil society, in addition to other dynamic, context-specific factors. Most of the evidence found during this rapid review was in studies that break down this broad topic into smaller sub-questions. They tended to be case studies that look at specific elements of ‘democratic freedoms’ (e.g., human rights, or anti-corruption), focus on specific countries, or were related to specific mechanisms (e.g., collective action) or processes (e.g., democratic regression). Each of these sub-topics is itself a large and contested area of research. According to some scholars, these case studies are overwhelmingly positive about civil society’s relationship to liberal democratic norms and practices. Some studies show that democratic regression occurs where the demands of a highly mobilised civil society cannot be effectively channelled by the party system or occur in contexts characterised by ethnic and regional differences or socio-economic inequalities.