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Articles de revues sur le sujet "Italian Constitutional Court, form of government"
1
Dudaeva, Marina V. « Historical and Political Analysis of the Decentralization Process in Italy ». Russian Journal of Legal Studies (Moscow) 8, no 1 (27 mai 2021) : 65–74. http://dx.doi.org/10.17816/rjls64467.
Texte intégralRésumé :
The author of the article examines the peculiarities of the Italian political space through a retrospective analysis of that countrys longstanding decentralization process. As a starting point, the author takes the end of the Risorgimento era, during which the national liberation movement of the Italian people united against foreign domination of their fragmented nation. A periodization of the decentralization process is given, indicating its main milestones: 1) the establishment of the Kingdom of Italy (1815 to 1871); 2) the Fascist regime (1922 to 1943); 3) adoption of the Italian Constitution and the Statutes of the Special Regions (1947); 4) regional reform (1970) and; 5) constitutional reform (2001). The key criteria for assessing the degree of decentralization in Italy are considered, including whether the regions have the right to adopt their own laws, initiate legislation at the central level, and participate in international activities. The author concludes that the Italian political elite has succeeded in decentralizing the republic and building a new regional policy based on the principles of subsidiarity. The reforms of the political and legal institutional design were mainly related to the delineation of the spheres of competence between the state and the regions, the consolidation of autonomous status for all regions, the abolition of the government commissioner, and the challenge of regional legislation exclusively by the Constitutional Court, creating the basis for the quasi-federal features of the Italian political and legal system. Thus, it is natural to say that Italy belongs to a special transit form of state structure of the regionalist type, located at the juncture between unitarianism and federalism.
2
VOLCANSEK, MARY L. « Political Power and Judicial Review in Italy ». Comparative Political Studies 26, no 4 (janvier 1994) : 492–509. http://dx.doi.org/10.1177/0010414094026004005.
Texte intégralRésumé :
This essay traces the development of the power of the Italian Constitutional Court, the political impact of its policies, and its reception by the public and the other institutions of government. The relationship between the Court and Parliament is presented as one characterized by a synchronization of powers, and the Court has demonstrated reluctance to interfere in conflicts among the various branches of the national government. That timidity has not, however, carried over into its treatment of referenda or of national versus regional prerogatives. The Constitutional Court is, according to this analysis, a part of the national governing elite, and its most controversial decisions have been ones safeguarding the interests of that elite. By carefully acting as “quasi-guardians,” the Constitutional Court judges have cemented a solidly positive reputation and nurtured an aura of legitimacy that is rare among Italian political actors.
3
Wulandari, Mona. « Existence and Implication of Land Banks on the Constitutional Court's Decision on Testing of Employment Law Form ». International Journal of Social Science Research and Review 5, no 8 (16 août 2022) : 145–49. http://dx.doi.org/10.47814/ijssrr.v5i8.542.
Texte intégralRésumé :
The research used in this research process uses type of normative law research. In order to create a constitutional law state, one of prerequisites that must be realized is by complying with the constitution, including obeying the decisions of Constitutional Court, because after all decisions of Constitutional Court are embodiment of constitution. There are several things that must be done in order to create constitutional awareness. One of them is by building a collective awareness of the constitution of all components of the nation, especially between state institutions by realizing that the decision of Constitutional Court are embodiment of spirit of constitution. And also the Government will immediately make improvements to formation of Job Creation Law within a period of two years as mandated by final and binding decision of Constitutional Court. Thus, implementation of the Land Bank function can be carried out properly. Considering that at first the government was very eager to establish this Land Bank institution.
4
Bianco, Giovanni. « CHANGE IN THE ITALIAN CONSTITUTIONAL COURT : BUDGET BALANCING MAY ALSO JUSTIFY AN ILLEGITIMATE RECALCULATION OF PENSIONS ». International Journal of Legal Studies ( IJOLS ) 2, no 2 (29 décembre 2017) : 255–67. http://dx.doi.org/10.5604/01.3001.0012.2317.
Texte intégralRésumé :
With the decision of October 25, 2017, in Italy the Constitutional Court has finally ruled that the needs of public finance can prevail over the rights of pensioners until an unlawful block of pension revaluation has been remedied. With the introduction of the principle of a balanced budget into the Constitution (art. 81), the foundations are laid to begin to tailor labor policies to the needs of economic and financial elite. The principle is rooted in European legislation that both the EU institutions and the European System of Central Banks (ESCB) are committed to pursue exclusively the objective of price stability (and therefore, as a matter of priority, of a given political system). Only once, without prejudice to this objective, can you pursue the general policies of the Union (such as employment and wage policies). With a balanced budget - constitutionalised in 2012 - the government wanted to experiment - among other things - to what extent it can block the revaluation of pensions and state seniority benefits. At first, the Constitutional Court, in ruling no. 70/2015, ruled against the government and sentenced it to return the sums to retirees inclusive of the revaluation in 2013. In that case, the consultation has considered the constitutional principles of proportionality and adequacy of the pension (art. 36 and 38 Cost.) as taking precedent over a balanced budget (art. 81). The Government reacted: a) returning to pensioners only 2 of the 17 billion Euro taken unlawfully (by means of the so-called Poletti decree); b) sensitizing the Court on finance issues with a bill to highlight the economic consequences of the decisions of the judges in the drafting of judgements and attributing to the government the same decision regarding the manner and timing of implementation of the judicial decisions that generate financial charges onto the government coffers. Perhaps, partly as a result of this moral suasion, the consultative panel has reformulated its approach and, after a few months, the sentence no. 178/2015 formally "condemned" the Government to return to the system of seniority benefits, not from 2013 (ex tunc), but only for the future (ex nunc). The new jurisprudence of the Court has meant that - as the government desired - the principle of the requirements of a balanced budget (art. 81) outweigh the policies that protect workers (Art. 39), resulting in (huge) savings for the government at a figure that is around 35 billion Euro. Finally, with the decision of 25 October 2017, the Court considered the payment of the Poletti bonus sufficient, allowing the government to save about 80% of the subtracted revaluations.
5
Prihandono, Tafta Aji, Sri Kusriyah Kusriyah et Widayati Widayati. « Awareness on Constitutional Rights of Citizens and Form of Protection of Constitutional Rights of Citizens in Indonesia ». Jurnal Daulat Hukum 1, no 4 (23 décembre 2018) : 1003. http://dx.doi.org/10.30659/jdh.v1i4.4145.
Texte intégralRésumé :
In the Constitution of the Republic of Indonesia of 1945 Article 1 (3) explicitly states that Indonesia is a State of Law. One element that is owned by the state law is the fulfillment of basic human rights as expressed by Friedrich Julius Stahl. Efforts to achieve a constitution that can follow the progress and will meet the basic human rights, the constitution must have a dynamic aspect and were able to capture the phenomenon of historical change, so as to make it as a constitution that is always alive. Only problem is the performance of the Government as the executor of the constitution (executive, legislative and judicial) still do not provide justice and satisfaction for those seeking justice, therefore the necessary awareness of constitutional rights of citizens in Indonesia. Efforts to protect the constitutional rights of Indonesian citizens can be done through the court and non-court lines, and can also via maximize the role of the Constitutional Court to extend its authority. The expansion of the authority of the Constitutional Court may be to accommodate Constitutional Complaint and Constitutional Question.Keywords: Awareness; Constitutional Rights; Form of Protection.
6
Tsebelis, George. « Compromesso astorico : the role of the Senate after the Italian constitutional reform ». Italian Political Science Review/Rivista Italiana di Scienza Politica 47, no 1 (13 septembre 2016) : 87–104. http://dx.doi.org/10.1017/ipo.2016.21.
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The article examines the content of the constitutional amendments with respect to the Senate. While symmetric bicameralism would be abolished with respect to policymaking, it would be preserved and even exacerbated with respect to constitutional revisions. The consequences of the first would be a reduction of the number of institutional veto players, which would lead to the facilitation of policy change, and an increase in the power of the government (who is the agenda setter). The content of the new policies remains unknown, as are the economic consequences of the proposed changes. Constitutional revisions would become more difficult, because the ideological distance between the Chamber of Deputies and Senate would be likely to increase (because of the mode of selection of Senators), while article 138, which specifies the requirements for amendment to the constitution, would remain the same. As a result, the role of the Italian Constitutional Court would also likely increase.
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Sinaga, Paulus Rudy Calvin, et Anna Erliyana. « Relevansi Teori Oplossing dalam Penanganan Sengketa Terkait Keputusan Pengadaan Barang dan Jasa Pemerintah ». Jurnal Konstitusi 19, no 2 (2 juin 2022) : 431. http://dx.doi.org/10.31078/jk1928.
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The Indonesian State Administrative Court has applied the oplossing theory, where claims related to disputes over the procurement of government goods or services are considered to be merged in the civil realm so that they are assumed to be not authorized to handle the dispute. This research is normative juridical research by comparing the practice of handling cases of government procurement of goods and services in the Indonesian State Administrative Court, the Constitutional Court, and the French Administrative Court. Research shows that there are inconsistencies in the Indonesian state administrative court regarding the interpretation of the oplossing theory after the enactment of Law Number 30 of 2014 concerning Government Administration, while in France, the plaintiff can file a lawsuit in the form of annulment of administrative decisions related to the procurement of government goods and services or a compensation claim. The implication of eliminating the oplossing theory is that a third party can file a claim for compensation against a dispute over the procurement of government goods and services in the state administrative court in accordance with the Constitutional Court Decision Number 22/PUU-XVI/2018 regarding the grace period for filing a lawsuit by a third party.
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Ahmad Saifulloh, Putra Perdana. « The Obligation of the Constitutional Court of Indonesia to Give Consideration in the Process of Dissolution of Societal Organizations ». Constitutional Review 4, no 1 (31 mai 2018) : 131. http://dx.doi.org/10.31078/consrev416.
Texte intégralRésumé :
The government efforts to dissolve the societal organizations must be carried out in accordance of stages and processes stipulated in the Law on Societal Organizations. Persuasive efforts must be done first before the imposition of administrative sanctions. Administrative sanctions in the form of warning letters and temporary suspensions of activities need to be done before the Government dissolves the societal organizations after a court decision was obtained from the permanent legal force. The writer considered that the dissolution of societal organizations by the Government was urgent for the present, but the Government before dissolving societal organizations should seek consideration from the Constitutional Court of Indonesia as the guardian, and interpreter of Pancasila. Thus, the Constitutional Court of Indonesia as a neutral judicial institution shall have the authority to consider whether a societal organization will be dissolved.
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Kozhevnikov, Oleg A., et Irina V. Glazunova. « Protection of the economic basis of local self-government in the decisions of the Constitutional Court of Russia ». Law Enforcement Review 4, no 2 (30 juin 2020) : 73–84. http://dx.doi.org/10.24147/2542-1514.2020.4(2).73-84.
Texte intégralRésumé :
The subject. The article is devoted to the analysis of decisions of the Constitutional Court of
Russia concerning the economic basis of local government in Russia in order to demonstrate
the special role of its legal positions in ensuring and protecting the economic foundations
of local self-government in the Russian Federation. The subject of the article is legal acts
and decisions of the Constitutional Court of Russia devoted to the economic foundations of
local self-government in Russian Federation.
The aim of the article is to confirm or disprove the following hypothesis. As it seems from
the practice of the Constitutional Court of Russia, the existing system of implementing the
regulatory framework of the economic basis of municipalities in Russia is unsatisfactory,
while the Constitutional Court of Russia, through the development of its legal positions,
smoothes out the negative aspects and sets up legislative and executive authorities to create the necessary conditions for the development of local government and to ensure its
economic and organizational independence. The methodology. The authors apply general scientific methods of comparative, logical and
statistical research, as well as analysis of Russian law enforcement and judicial practice in
the field of local self-government.
The main results, scope of application. Despite the provisions of the European Charter of
Local Government on the right of local governments to possess sufficient own financial resources, the reality shows a very deplorable picture of the formation of the regulatory
framework of the economy of municipalities in Russia. The existence of very heterogeneous
judicial practice, primarily arbitration, makes the situation worse. In this regard, a special
role in protecting the economic foundations of local government is assigned to the Constitutional Court of Russia.
Conclusion. The issues of legal regulation of the economic basis of local government need increased attention of the state and urgently require a deliberate change, primarily in the form
of developing a federal state policy, taking into account the practice already developed by the
Constitutional Court of Russia. It is the highest federal body of constitutional justice that often
acts as the last bastion of protecting the economic potential of local government.
10
Spigno, Irene. « Constitutional Judges and Secession. Lessons from Canada … twenty years later ». Perspectives on Federalism 9, no 3 (1 décembre 2017) : E—105—E—132. http://dx.doi.org/10.1515/pof-2017-0022.
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Abstract In constitutional theory, the referendum is an instrument that allows for the expression of the popular will in government decisions and through which people are asked to vote directly on an issue or policy. Over the last decades, the referendum has been the instrument used by minority groups to claim their independence supported by popular will. This paper examines trends in constitutional jurisprudence on the issue of independence referendums. The birth of this constitutional trend can be found in the 1998 decision by the Supreme Court of Canada in the Reference Re Secession of Quebec. The principles developed therein have been further explored in two recent cases, issued by the Italian Constitutional), and by the Spanish Constitutional Tribunal in the latest decision of the Catalonia saga (Judgment no. 114/2017).
Thèses sur le sujet "Italian Constitutional Court, form of government"
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Dondi, Sebastiano. « Pouvoirs et contrepouvoirs : les limites juridiques au pouvoir majoritaire dans la dynamique du regime politique en Italie et en France ». Thesis, Paris 10, 2013. http://www.theses.fr/2013PA100056.
Texte intégralRésumé :
Le travail de recherche est une étude comparé des pouvoirs de veto (ou contrepouvoirs) que, selon la lettre des Constitutions italienne et française interviennent dans le produit du travail normatif du Pouvoir majoritaire (lois, ordonnances et décrets-loi). Il s’agit, spécifiquement, du referendum, de l’opposition parlementaire, du chef de l’Etat, du Conseil d’Etat et de la justice constitutionnelle. La thèse, après un premier chapitre qui propose une classification originale des contrepouvoirs, utile à les définir et à les encadrer dogmatiquement, se propose d’étudier en profondeur les relations qui les lient les contrepouvoirs entre eux-mêmes et également vis-à-vis du Pouvoir. La méthode utilisée (systématique et comparée) est innovatrice et se base sur une analyse empirique fondée sur des cas exemplairesThis PhD dissertation consists in a comparative study of veto players (or counter-powers) that, according to Italian and French Constitution, aim at affect the legislative activity of the executive and majoritarian power and of its majority in the Parliament, i.e. laws and decrees-law. They are summarily: the referendum, the opposition parties, the head of the State, the Conseil d’Etat and the constitutional justice. The research, after the initial chapter regarding an innovative classification of veto powers which describes them with a dogmatic approach, explores in depth the existing relations among veto players and their interactions with Power. The methodology is based on an empirical and systematic analysis of some classic case-studies
Il lavoro di ricerca è uno studio comparato tra Italia e Francia dei contropoteri che, secondo Costituzione, intervengono sul prodotto del lavoro del Potere maggioritario, le leggi e i provvedimenti di rango primario. Si tratta del referendum, l’opposizione parlamentare, il capo dello Stato, il Conseil d’Etat e la giustizia costituzionale. La tesi, dopo un capitolo iniziale dedicato ad una innovativa classificazione dei poteri di veto idonea a inquadrarli dogmaticamente, si propone di indagare in profondità le relazioni che legano fra di loro gli organi di contropotere e come questi interagiscano con il Potere. La metodologia utilizzata è innovativa e si basa su un’analisi empirica basata su casi esemplari e basata sul metodo sistematico
2
Giannelli, Matteo. « Gli accordi in forma semplificata tra questioni di costituzionalità ed evoluzione della forma di governo ». Doctoral thesis, 2021. http://hdl.handle.net/2158/1247496.
Texte intégralRésumé :
La tesi analizza il tema degli accordi internazionali in forma semplificata e si articola in quattro capitoli. Nella primo capitolo l'attenzione si sofferma sul contenuto dell’art. 80 Cost e, in particolare, sulla stessa nozione di «forma semplificata». A seguire, nel secondo capitolo, viene proposta un’analisi della prassi in materia, avente ad oggetto gli accordi pubblicati a partire dalla metà degli anni ’80, in coincidenza con l’entrata in vigore della legge n. 839 del 1984. Nel terzo capitolo si affronteranno i temi e i problemi connessi alla qualificazione degli accordi come norma interposta e, in più in generale, relativi alla dinamiche del controllo di costituzionalità sull’esercizio e sulle scelte di politica estera da parte del Governo. Infine, nel quarto capitolo, ci si occuperà delle modalità di indirizzo e controllo parlamentare e delle dinamiche della forma di governo.
This dissertation analyses the issue of executive agreements form and is divided into four chapters. In the first one, attention is focused on the content of article 80 of the Constitution and, in particularly, on the notion of "executive agreements" in the italian legal system. Then, in the second chapter, an overview of the practice on the matter is proposed, focusing on the agreements published since the mid-1980s, corresponding to the entry into force of the Law no. 839 of 1984. The third chapter will deal with the issues and problems connected with the qualification of agreements as an “norma interposta” and, more generally, with the dynamics of the judicial review on the foreign policy exercised by the Government. Finally, the fourth chapter will deal with the methods of parliamentary control and the dynamics of the form of government.
Livres sur le sujet "Italian Constitutional Court, form of government"
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Hanschel, Dirk. Enforcement of Federal Law against the German Länder. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198746560.003.0016.
Texte intégralRésumé :
This chapter examines the various legal and political means of federal law enforcement by Germany’s Federal Government and by the Federal Constitutional Court. This is understood as a form of resolution of vertical power conflicts within federations. While by its nature the main focus of this chapter lies on the legal means of federal law enforcement within the context of the notion of executive federalism, it also devotes some attention to the political dimension. Since German federalism is strongly based on consensus and cooperation, this dimension is very important in practice. Where antagonism between the Federation and the Länder occurs (whether expressed in political or legal terms), it is frequently either motivated by party politics or triggered by matters where specific subnational interests are at stake. Apart from negotiation, adjudication by the Constitutional Court is one of the key instruments to deal with that.
2
Ferri, Delia. Italy. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198786627.003.0009.
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Italy was among the first countries to sign the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2007, and ratified it in 2009 by Law 18/2009. Since then, the Convention has displayed significant influence on case law, and provoked a degree of judicial activism. This chapter provides an overview of how Italian courts have used and interpreted the CRPD. It highlights how Italian lower and higher courts, including the Constitutional Court and the Court of Cassation, have attempted to overcome the gap between domestic law and the CRPD, by ‘rethinking’ legal concepts in light of the Convention. This is evident with regards to the field of legal capacity and the domestic provisions of the civil code on the ‘administration of support’, but also to non-discrimination legislation, the scope of which has been evidently enlarged to encompass the failure to provide reasonable accommodation as a form of indirect discrimination.
Chapitres de livres sur le sujet "Italian Constitutional Court, form of government"
1
Fasone, Cristina, et Giovanni Piccirilli. « The new “form of government” in the reforms of the Italian regional system ». Dans Federalism and Constitutional Law, 30–47. Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2021. : Routledge, 2021. http://dx.doi.org/10.4324/9781003104469-4.
Texte intégral
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Pavoni, Riccardo. « A Plea for Legal Peace ». Dans Remedies against Immunity ?, 93–117. Berlin, Heidelberg : Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_5.
Texte intégralRésumé :
AbstractThis chapter advocates legal peace between Germany and Italy as the most sensible and appropriate way to deal with the aftermath of Sentenza 238/2014 of the Italian Constitutional Court and its declaration of the unconstitutionality of the 2012 International Court of Justice (ICJ) Judgment in Jurisdictional Immunities. This plea does not only arise from frustration with the current impasse but also from the suspicion that the public good of legal peace has never seriously been canvassed by the Italian and German governments. Section II takes stock of the legal developments relating to the dispute between Germany and Italy since Sentenza 238/2014 was delivered. It especially focuses on the attitudes of the governments concerned, both in the context of the ongoing proceedings before Italian courts and elsewhere. It finds such attitudes opaque and unduly dismissive of the necessity to devise legal peace in the interest of the victims and of the integrity of international law. Section III highlights how the behaviour of the governments so far was at odds with the successful outcome of other intergovernmental negotiations concerning reparations for crimes committed during World War II (WWII), a process which has not been entirely finalized, as evidenced by the 2014 Agreement between the US and France on compensation for the French railroad deportees who were excluded from prior French reparation programmes. The Agreement between the US and France and all previous similar arrangements were concluded under mounting pressure of litigation before domestic courts against those states (and/or their companies) that were responsible for unredressed WWII crimes, thus a situation resembling the current state of the dispute between Germany and Italy. It is telling that litigation ended when the courts took cognizance of the stipulation of intergovernmental agreements establishing fair mechanisms for compensating the plaintiffs and victims of the relevant crimes. Such practice, therefore, is essentially in line with the proposition that state immunity (for human rights violations) is essentially conditional on effective alternative remedies for the victims. This and other controversial aspects related to the law of state immunity—such as the nature of state immunity, the North American remedies against immunity for state sponsors of terrorism, and the persistent dynamism of pertinent practice—are revisited in section IV. The purpose is to suggest that certainty about the law of international immunities, as allegedly flowing from the 2012 ICJ Judgment, is more apparent than real and that this consideration should a fortiori urge the realization of legal peace in the German–Italian affair.
3
Bufalini, Alessandro. « Waiting for Negotiations : An Italian Way to Get Out of the Deadlock ». Dans Remedies against Immunity ?, 191–208. Berlin, Heidelberg : Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_9.
Texte intégralRésumé :
AbstractThe outcome of Judgment 238/2014 does not directly rely on the fact that the international dispute on state immunity involves two member states of the EU. Also, it is difficult to envisage at the European level any normative development on the international rules on state immunity. It seems, however, that some useful lessons can be learnt from the judicial dialogue between the European Court of Justice, the European Court of Human Rights, and constitutional courts. In very general terms and for many reasons, the relationship between constitutional courts and the International Court of Justice (ICJ) cannot rely on particularly sophisticated techniques of judicial dialogue.This encourages us to consider the importance of involving state-level political organs as one of the counterparts to the dialogue. The potential power of judges to address these political organs in order to find a diplomatic solution raises the thorny question of whether this availability of alternative means of dispute settlement at the international level might impact on (or somehow restrict) the right of access to justice for Italian victims. Since both ICJ and the Italian Constitutional Court (ItCC) seem to agree that negotiation is the alternative dispute settlement par excellence (and the only means available to settle the present dispute at the international level), the ItCC might have given more importance to the availability of alternative means of redress—in the form of negotiations between the two states—in order to wear down the absolute character of the principle of judicial protection enshrined in Article 24 of the Italian Constitution.Of course, a negotiated solution depends upon the willingness of both parties, whereas an Italian political initiative aimed at unilaterally granting reparation to the victims is always possible. Moreover, the latter solution may stop the enforcement of Judgment 238/2014 and reduce Italy’s exposure to international responsibility for non-compliance with the 2012 ICJ Judgment. So long as Italian victims and their heirs are compensated, the restriction on their right to seek justice through the courts might become more tolerable for the Italian tribunals.
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Onida, Valerio. « Moving Beyond Judicial Conflict in the Name of the Pre-Eminence of Fundamental Human Rights ». Dans Remedies against Immunity ?, 331–35. Berlin, Heidelberg : Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_17.
Texte intégralRésumé :
AbstractSentenza 238/2014 can be criticized insofar as it seems to ground Italy’s refusal to comply with the Jurisdictional Immunities Judgment of the International Court of Justice on the basis of the right of access to a judge for the victims of the conduct of German armed forces during World War II. Indeed, the principle of state’s immunity to the civil jurisdiction of other states regarding the conduct of their own armed forces does not in itself breach a victim’s right of access to a judge, which theoretically in this case might also be granted by a German court. However, Sentenza 238/2014 has the merit of highlighting, in the specific case of the Italian Military Internees (IMIs), the violation of the victims’ right to an effective judicial protection of their fundamental rights, given that German jurisdictions excluded every reparation that favoured IMIs. Such fundamental rights must prevail over the international rules relating to state immunity because, according to the supreme principles of the Italian constitutional order and to international law itself, fundamental human rights violations related to crimes against humanity must benefit from an effective protection. The impasse between Italy and Germany should be solved through a new joint initiative between the two governments (carried out ideally under a common understanding of the two Presidents of the Republic), which should examine the applicants’ cases in order to grant them reparation. Though symbolic, such reparation will have an important moral dimension.
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Tams, Christian J. « A Dangerous Last Line of Defence : Or, A Roman Court Goes Lutheran ». Dans Remedies against Immunity ?, 237–57. Berlin, Heidelberg : Springer Berlin Heidelberg, 2021. http://dx.doi.org/10.1007/978-3-662-62304-6_13.
Texte intégralRésumé :
AbstractThe chapter addresses questions of international law implicated by Sentenza 238/2014. It begins by revisiting the longstanding debate about state immunity and its limits, arguing that notwithstanding decades of discussion, a ‘grave breaches’ exception has never had more than marginal support in positive international law. Against that background, it comes as no surprise that the Italian Constitutional Court (ItCC), in Judgment 238/2014, did not assert the existence of a grave breaches exception as a matter of international law. Instead, the ItCC relied on what might be termed a ‘foreign relations law’ approach, holding that Italian constitutional law required it not to give domestic effect to the international law of state immunity. This ‘foreign relations law’ approach offers a last line of defence for those seeking to limit the reach of rules of state immunity. As is set out in this chapter, it is an effective line of defence because international law does not ‘by itself, possess the force to amend or repeal internationally unlawful domestic (…) acts’ (Antonio Cassese). At the same time it is a dangerous line, as it risks weakening international law generally and not just in the area of immunity. This chapter suggests that, when read as a foreign relations law decision, Sentenza 238/2014 is not as such unusual: it is one of many decisions accepting some form of ‘constitutional override’ that limits the effects of international law within domestic legal orders. However, Sentenza 238/2014 stands out because—unlike other decisions—it seems to refuse international law any place in the construction of constitutional law: in the ItCC’s ‘separatist treatment’ (Kolb) international law is denied a directive function (‘Orientierungswirkung’); it is not factored into the equation. Seen in that light, Sentenza 238/2014 (counter-intuitively, for a ‘Roman’ decision) has a ‘Lutheran’ quality; it is informed by a stubborn ‘here I stand, I can do no other’ aspect, which limits the potential for a constructive dialogue between domestic and international judiciaries.
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Waseem, Mohammad. « Constitutional Dynamics ». Dans Political Conflict in Pakistan, 279–338. Oxford University Press, 2022. http://dx.doi.org/10.1093/oso/9780197631300.003.0006.
Texte intégralRésumé :
This chapter focuses on law as politics in the context of constitutionalism operating as a handmaiden of various contenders for power. First, the issue of parliamentary sovereignty became a source of conflict between the elected and non-elected institutions. While the parliament's strength drew upon the mass mandate, the extra-parliamentary forces used the corruption-accountability-nexus to weaken this institution. The judiciary repeatedly authenticated the dissolution of the National Assembly. Second, the federal project suffered the same fate through dismissal of provincial governments by the Centre, provincial autonomy denied de jure and--after the 18th Amendment--de facto, and a clash between Islamabad and provincial capitals, especially Karachi. Third, Islamization of laws took a leap forward under Zia's military government, along with a parallel judicial system in the form of Federal Sharia Court. All this led to a religious sub-system in Pakistan.
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Christian, Bumke, et Voßkuhle Andreas. « 29 Art. 80 GG : Issuance of Executive Orders ». Dans German Constitutional Law. Oxford University Press, 2019. http://dx.doi.org/10.1093/law/9780198808091.003.0029.
Texte intégralRésumé :
This chapter discusses the relevant provisions of Art. 80 of the Grundgesetz (GG) with regard to the issuance of executive orders. Under the Grundgesetz, only the federal government, a federal minister, or state governments may create executive orders, and only to the extent that they are expressly authorised to do so by a parliamentary law. The chapter first examines the Federal Constitutional Court's jurisprudence concerning the scope of Art. 80 GG, focussing on the delegation of law-making power to the executive in the form of authorisation to promulgate executive orders. It then considers the specificity of the delegation of powers, with emphasis on the four formulas developed by the Court: foreseeability formula, autonomous decision formula, program formula and clarity formula. It also analyses the requirement of citation for authorities which create an executive order, the procedure for issuing executive orders, and executive orders which require consent by the Bundesrat.
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Jha, Himanshu. « Constitutional Interpretation by the Judiciary ». Dans Capturing Institutional Change, 109–51. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780190124786.003.0004.
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This chapter traces the trajectory of ideas that emanated from the judiciary since the early 1950s. The ideational movement within the judiciary coincides with the first two phases. This chapter discusses significant judicial cases in which the Supreme Court has interpreted Article 19 (1) (a) of the Constitution of India as inherently containing the right to know. Initially ideas on openness from the judiciary emerged in a nascent form where the judicial verdicts established the linkage between the freedom of press and the importance of information flow and dissemination in a democracy. Later, the judiciary moved beyond the specifics of the press freedom and examined the question of openness in government affairs, challenging the nested norm of secrecy. This interpretation provides the link to the long-drawn process of emerging ideas on openness emanating from within the state.
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Cortese, Fulvio. « The Liability of Public Administration ». Dans Tort Liability of Public Authorities in European Laws, 61–65. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198867555.003.0008.
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At the end of the nineteenth century, Italian courts constructed government liability in narrow terms, excluding it whenever government took acts of imperium. Article 28 of the Constitution deviates from that line of cases, because it lays down two principles: first, that the officials and employees of public bodies are directly liable for acts committed in violation of rights and, second, that in such cases civil liability extends to public bodies. Concretely, the standard governing the non-contractual liability of public bodies is influenced by the rules of the Civil Code. Liability can thus be based on the existence of a breach of existing legal rules, including procedural constraints on the exercise of administrative powers. For example, the unlawful issuing of a building permit gives rise to liability. However, when public authorities exercise real discretion, issues of liability will be treated differently. And, unlike other legal systems, such issues often fall within the competence of administrative courts.
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Erdősová, Andrea. « The Constitutional Development of Slovakia ». Dans Comparative Constitutionalism in Central Europe : Analysis on Certain Central and Eastern European Countries, 149–72. Central European Academic Publishing, 2022. http://dx.doi.org/10.54171/2022.lcslt.ccice_9.
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This chapter covers the history of the constitutions of previous state forms of what we recognise today as the Slovak Republic from the end of World War I and also mentions the antecedents of the present country. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. (Declaration of Independence) Jefferson’s words remain as true today as they were 250 years ago. The guiding principle of this experiment in a representative democracy is that the government derives its powers from those it governs, but nothing is guaranteed, and people are promised nothing if they do not stand up and force the government to uphold that principle. It seems to be extremely difficult to pinpoint all the essential details of the constitutional development of Slovakia because, after the First World War, this development was accompanied by many different turbulences. We must imagine the whole history threat from the great economic crisis through World War II, the era of communism, the development after the Velvet Revolution in 1989 as well as many changes in governments and thus changes in the country’s orientation and in the system of constitutional changes. In the following text, we therefore focus on those moments of constitutional development and constitutional changes that we consider to have had an impact on the current form of the constitution of Slovakia and the constitutional acts and the findings of the Constitutional Court of the Slovak Republic. Law and justice are not available to the legislator. The idea that the legislator can arrange everything according to his will would mean a return to the spiritual position of worthless legal positivism, which has long been obsolete in legal science and practice.
Actes de conférences sur le sujet "Italian Constitutional Court, form of government"
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Dauster, Manfred. « Criminal Proceedings in Times of Pandemic ». Dans The 8th International Scientific Conference of the Faculty of Law of the University of Latvia. University of Latvia Press, 2022. http://dx.doi.org/10.22364/iscflul.8.2.18.
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COVID-19 caught humanity off guard at the turn of 2019/2020. Even when the Chinese government sealed off Wuhan, a city of millions, for weeks to contain the epidemic, no one in other parts of the world had any idea of what specifically was heading for the countries. The ignorant and belittling public statements and tweets of the former US president are still fresh in everyone's memory. Only when the Italian army carried the coffins with the COVID-19 victims in northern Italy, the gravesites spread in the Bergamo region, as well as the intensive care beds filled in the overcrowded hospitals, the countries of the European Union and other parts of the world realised how serious the situation threatened to become. Together with the World Health Organisation (WHO), the terms changed to pandemic. Much of the pandemic evoked reminiscences originating in the Black Death raging between 1346 and 1353 or in the Spanish flu after the First World War. Meanwhile, life went on. The administration of justice in criminal cases could not and should not come to a standstill. Emergency measures, such as those that began to emerge in February 2020, are always the hour of the executive. In their efforts to stop the spread of the virus, in Germany, governments particularly reflected on criminal proceedings. Neither criminal procedural law nor the courts and court administrations applying this procedural law were adequately prepared for the challenges. Deadlines threatened to expire, access to court buildings and halls had to be restricted to reduce the risk of infection, public hearings represented a potential source of infection for both the parties to the proceedings and the public, virtual criminal hearings via conference calls had not yet been tested in civil proceedings, but were legally possible, but not so in criminal cases. The taking of evidence in criminal cases in Germany is governed by the rules of strict evidence and is largely not at the disposal of the parties to the proceedings. Especially in criminal cases, fundamental and human rights guarantees serve to protect the accused, but also the victims and witnesses. Executive measures of pandemic containment might impact these guarantees. Here, an attempt will be made to discuss at some neuralgic points how Germany has attempted to balance the resulting contradictory interests in the conflict between pandemic control and constitutional requirements for criminal court proceedings.