Articles de revues sur le sujet « Judicial review – Italy »

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.

The paper deals with the treatment – both legislative and judicial – of maritime concessions in Italy. It first analyses legal provisions regarding the term of duration of such concessions and then focuses on some recent sentences. The first of them could have made stronger the conflict between the Italian legal environment and EU one, as the legislative automatic prorogation of concessions was deemed to be legitimate. Luckily, further rulings stated that this legislative statute is not in line with EU law and so has to be non applied. The Council of State solved the question very recently: not only Italian legal discipline was sentenced not to be in line with the EU law, but also some guidelines were given to step out the impasse. Judicial review so proved out to be once again the key element to grant rule of law, even when relationships between different legal environments are concerned.

Patronage service(executive support service)is a type of service and employment relations that arise, change and terminate to ensure effective, proper and quality performance of their duties by officials who are legally entitled to have a patronage servant. The term “patronage” comes from “patronatus” in Latin- the state or rights of the patron. In the national legislation, the patronage service is a quite new category and was first introduced in 1993 with the adoption of the Law on Civil Service, and therefore has no old traditions. The change in the status of the patronage service in Ukraine indirectly indicates its formation. There is no single approach to the principles of patronage service in foreign countries, for example, in Italy and Germany patronage service does not stand out as a separate concept, but such kind relationships are included in the public service, while in Australia, Britain, Georgia, Canada, Lithuania and Poland patronage service conceptually stands out as a category of public service with a number of special rules. The establishment of a patronage service in Ukraine was an objective necessity and today it operates in the system of legislative, executive and judicial branches. The labor functions of patronage service employees are directly correlated with the labor functions of public law official to whom they are assigned (subordinated). The patronage service includes advisers, assistants, commissioners, press-secretaries of the President of Ukraine, employees of the secretariats of the Chairman, First Deputy Chairman and Deputy Chairman of the Verkhovna Rada of Ukraine, employees of patronage services of the Prime Minister of Ukraine and other members of the Cabinet of Ministers of Ukraine, advising assistants of People's Deputies of Ukraine, judicial assistants and scientific advisers to judges of the Constitutional Court of Ukraine, judicial assistants, advisers to the Chairman of the Supreme Court and chairmen of cassation courts, as well as positions of patronage servants in other state bodies. At the same time as for judiciary, part 4 of Article 92 of the Civil Service Law (2015) states that the specifics of patronage service in courts, bodies and institutions of the judicial system are determined by the legislation on the judiciary and the status of judges. Judicial assistants are an integral part of the judiciary. Despite their legal status, whether civil or patronage servants, the lion's share of work is performed by judicial assistants. It can be concluded, directly or indirectly, that effective work of a court or a judge is not possible without the effective work of judicial assistants (judges' offices) and this interdependency is obvious. It should also be noted that a significant number of assistants later become judges, or if we take a look at the biographies of judges of all levels we can find out that many of them took their first steps in the legal profession as judicial assistants. This might lead to the conclusion that “judicial assistants environment” is a kind of a personnel reserve of the judiciary.

In the Italian legal system, the transposition of Directive 2014/104/EU into Legislative Decree No. 3 of 2017, with a view to improving the efficacy of both ‘follow-on’ and ‘stand-alone’ legal actions in private and public antitrust enforcement, has highlighted the problem of the judicial review of National Competition Authority (NCA) decisions. The Directive established its own ‘binding effect’ designed by the European Union order to increase the effectiveness and procedural efficiency of actions for damages in the Member States. According to the logic of the European Union, the binding effect seeks to ensure that an infringement of competition law, established by a final decision of the NCA or a court of judicial review, is deemed to be irrefutably acknowledged for the purpose of bringing an action for damages before the national courts under Article 101 or 102 Treaty on the Functioning of the European Union (TFEU) or under national competition law. However, in terms of accomplishing this objective, the prevision introduced into Italian law by Article 9(1) of the Directive becomes problematic when set against the current system of judicial review of NCA decisions in Italy, potentially undermining the effectiveness of the legal protection of the individual. The focus of the article is that the Italian system does not – in its current form – allow adequate judicial review of NCA decisions. Taking the interpretation of Articles 6(1) European Convention on Human Rights (ECHR) and 24 of the Italian Constitution as fundamental norms establishing the ‘right to a fair trial’ and the ‘right to a defence’ as its starting point, the article seeks to offer a solution to the problem arising in relation to full judicial review of NCA decisions within the Italian legal context based on the thesis that if there is no full revision of the facts and no full revision of the discretionary powers there can be no full judicial review. EU Damages Directive, Private and public antitrust enforcement systems, The binding effect of the NCA’s decisions, Administrative and technical discretion, Judicial review of the NCA’s fact findings and technical assessments; European Court of Human Rights (ECtHR) case law, Articles 6(1) ECHR and 24 of the Italian Constitution, Intensity of review in Italy, Full jurisdiction of the Italian administrative courts

During the past 20 years, the rules on evidence and the approach to access to scientific knowledge by administrative courts have evolved towards a some- what closer look to the factual findings upon which administrative decisions are based. The practice of judicial review, including in environmental matters, however, is often rather deferent to the findings of the public decision makers. In practice, judicial review in environmental cases is therefore still very much focused on the reasons given, looking at their logical consistency more than at their soundness, and even less so at the soundness of the decision taken (unless of course the decision plainly conforms to or instead flies in the face of common sense). It is submitted that the more hands-off judgments are hard to reconcile with the requirement of "substantive legality" review predicated in Article 9 of the Aarhus Convention.

In this article, I will tackle the issue of the enforceability of subsidiarity in the EU and, more specifically, I will deal with the following questions: if and to what extent subsidiarity is justiciable; if the full justiciability of subsidiarity would be politically sustainable; and if there are any alternatives to the judicial enforcement of subsidiarity. I will argue that subsidiarity is justiciable, even though its judicial enforcement should be limited to particular situations. I will also argue that full justiciability of subsidiarity would be politically unsustainable in the long run and that a balanced combination of judicial review, procedural arrangements and political cooperation is the only alternative to an all-encompassing judicial enforcement of subsidiarity. In tackling this issue, I will use a comparative law approach in that I will make extensive reference to the legal systems of Germany and Italy.

The article analyzes the experience of Italy related to the obligation of the state to implement at the national level an effective mechanism for protecting the right to trial within a reasonable time, taking into account the case law of the European Court of Human Rights. It was also pointed out that the issue of implementation of the principle of fair trial is rather complicated. The author stated that the right to a fair trial, enshrined in the Convention for the Protection of Human Rights and fundamental freedoms, includes several components that expand and detail its contents. The article stated that the reasonable term of the trial is a separate element of accessibility of justice. The author determined that the term of judicial review begins to count from the moment of the submission of the claim to the court and it is finished by the execution of the court decision. At the same time, it can be considered reasonable, taking into account the complexity of a particular civil case, behavior of the applicant and government bodies, the importance of the question for the applicant or the special situation of the person who is applying to court for the protection of his violated, unrecognized or disputed right, freedom or interest. The author also drew attention to the fact that the overload of the judicial system can be caused by certain emergency situations, for example, economic recession, when the state cannot predict an increase in the number of disputes in advance. The article stated that Italy is the first state to introduce legal measures of protection of the right to fair trial within reasonable time at the level of national legislation. The author noted that the understanding of the terms of the consideration of each civil case is guaranteed by fairness in the judicial process and it is a separate element of the accessibility of justice. The article determined that the ECHR does not recognize specific terms that could be considered reasonable or unwise, but the Court has developed certain criteria for assessing the understanding of such terms of judicial review, which will lead to greater effectiveness of judicial protection. On the example of experience of Italy, the author stated that the introduction of new legal mechanisms in the legal models of states cannot always solve the problem and such an approach requires more detailed research.

The article analyzes the experience of Italy related to the obligation of the state to implement at the national level an effective mechanism for protecting the right to trial within a reasonable time, taking into account the case law of the European Court of Human Rights. It was also pointed out that the issue of implementation of the principle of fair trial is rather complicated. The author stated that the right to a fair trial, enshrined in the Convention for the Protection of Human Rights and fundamental freedoms, includes several components that expand and detail its contents. The article stated that the reasonable term of the trial is a separate element of accessibility of justice. The author determined that the term of judicial review begins to count from the moment of the submission of the claim to the court and it is finished by the execution of the court decision. At the same time, it can be considered reasonable, taking into account the complexity of a particular civil case, behavior of the applicant and government bodies, the importance of the question for the applicant or the special situation of the person who is applying to court for the protection of his violated, unrecognized or disputed right, freedom or interest. The author also drew attention to the fact that the overload of the judicial system can be caused by certain emergency situations, for example, economic recession, when the state cannot predict an increase in the number of disputes in advance. The article stated that Italy is the first state to introduce legal measures of protection of the right to fair trial within reasonable time at the level of national legislation. The author noted that the understanding of the terms of the consideration of each civil case is guaranteed by fairness in the judicial process and it is a separate element of the accessibility of justice. The article determined that the ECHR does not recognize specific terms that could be considered reasonable or unwise, but the Court has developed certain criteria for assessing the understanding of such terms of judicial review, which will lead to greater effectiveness of judicial protection. On the example of experience of Italy, the author stated that the introduction of new legal mechanisms in the legal models of states cannot always solve the problem and such an approach requires more detailed research.

The article examines the procedural aspects of constitutional review that affect the style of constitutional reasoning. The author identifies and analyzes the rules of judicial review of legislation that determine the design of argumentation techniques, using the experience of Russia, Australia, Austria, Germany, Israel, Spain, Italy, Canada, the United States, Taiwan, France, and South Africa as an empirical basis for research. The study suggests a set of such comparison criteria as model of constitutional review, specific rules of procedure, including the way the judges put questions to the parties, availability of written pleadings on a court’s website, tradition of structuring a judgment, the number of judges on a panel, collegial mode of the judicial decision-making, and possibility to express a dissenting opinion. Referring to the notion of argumentative style and identifying the correlation between specific rules of procedure and argumentation patterns arising in the practice of constitutional litigation, the author outlines the advantages and disadvantages of certain normative parameters of judicial review. Overall, the article concludes that the argumentative style is being shaped not only by procedural rules but also by legal traditions that dominate in a particular state since the appropriateness and suitability of argumentation strategies for constitutional review largely depend on their compatibility with the nature of legal thinking.

Abstract While civil law courts of last resort—e.g., cassation courts in France, Italy, and Chile—review up to 90% of appealed cases, common law courts of last resort—e.g., supreme courts of the United States, United Kingdom, and Canada—hear as few as 1% of the same petitions. In this study, we postulate that these different policies can be explained by a comparatively larger commitment from common law courts of last resort to judicial law-making rather than judicial uniformity. While courts require few hearings to update the law (in theory one decision is sufficient), they need a large number of hearings to maximize consistency in the lower courts’ interpretation of the law. We show that the optimal number of hearings increases with an increment in the courts’ concern for uniformity. We also show that if hearing costs are linear then the hearing policies of all courts can be classified in only two types. In addition, we predict important changes in hearing policies when the number of petitions increases. Finally, we find that hearing rates and reversal disutility operate as two ways in which a legal system can achieve a given level of judicial uniformity.

The Tafida Raqeeb case comprised both a judicial review and a determination of Tafida’s best interests. The judicial review concerned Barts Health NHS Trust’s (Barts) decision not to permit Tafida’s parents to transfer her to Gaslini Children’s Hospital (GCH) in Genoa, Italy. Barts requested that a judge declare that the proposed transfer was not in Tafida’s best interests. In the High Court, MacDonald J’s ruling on the judicial review element of the case was that Barts had not acted unlawfully. In the best interests determination, MacDonald J deemed that continued treatment was in Tafida’s best interests, hence Tafida’s parents would be permitted to transfer her to GCH. Although medical views of best interests tend to prevail in these types of cases, the Raqeeb case, like other previous cases where judges have found in favour of parents, demonstrates that the best interests test is not designed to override the wishes of parents, as its detractors allege, but is flexible enough to allow judges to weigh competing factors in making a determination. In the Raqeeb case, in the absence of clear evidence regarding pain and suffering, subjective factors were accorded more weight within the balancing exercise. I argue that the best interests test should be retained and that a reform affording parents a ‘right to try’ should not be adopted, as this may prolong the pain and suffering of some infants. Nonetheless, the Raqeeb case demonstrates the lack of dialogue between parents and clinicians, in some cases. It therefore bolsters the argument that mediation should be offered in these types of cases.

Under the conditions of legitimization of the constitutional process, constitutional subjects seek to improve the method of decision-making and privilege a certain type of argumentation. Although there are many tools to achieve this, the purpose of this contribution is limited to the study of evidence as a tool of legitimation. On the one hand, legal evidence, as it is an irreplaceable means of achieving a certain truth, and on the other hand, it is legitimized, as it involves an evidentiary procedure that guarantees the right of each participant in the legal process to have his case heard by a judge. If the evidentiary regime, whose function is to demonstrate the truth of the facts, is sometimes a pole apart from that which has the function of obtaining community approval, these two functions contribute to the same goal of legitimizing the constitutional process. Evidential legitimation does not correspond to a natural process, but rather consists of a discourse that treats the evidence in certain ways, or rather in different ways, in order to increase the legitimacy of the constitutional judge's decisions. If it falls under the specific field of comparative constitutional jurisprudence, the contribution appeals to the context of the general theory of evidence and, in particular, to the recently conceptualized functions of evidence. It follows from this that in the process of depoliticization or jurisdictionalization of the review of constitutionality, constitutional subjects strive, on the one hand, to improve the way of decision-making, and on the other hand, to privilege a certain type of argumentation. Although there are many tools to achieve this, the purpose of this contribution is limited to the study of evidence as a tool of legitimation. More specifically, the process of legitimization by evidence can be conceived as a process initiated by legal entities in order to gain authority among different audiences. The main function of evidence is to verify the production of facts that are decisive for the resolution of the dispute and to which the law attributes legal consequences. This function of proof consists in determining the truth of statements that describe the occurrence of these defining facts. However, it is important to note that this contribution is not intended to position itself on the content of the truth in the judicial process.

The purpose of this paper is to analyse the independence of regulatory authorities (RAs) under Italian law. In this paper, reflecting a widespread opinion in Italy, we will address the idea of the inadequacy on the part of the Italian legal framework in ensuring the independence of RAs. The structure of the paper is as follows. After a brief presentation of Italian RAs, independence from politics and independence from stakeholders are both separately considered in light of Italian law. Before concluding, we also offer some insights concerning judicial review of RAs' acts. A part of the debate regards how to ensure and to improve their independence.

In Italy, a person suffering from a mental disorder who commits a crime will be given a custodial security order and serve the period of admission at a Residenza per la esecuzione delle misure di sicurezza (REMS) (Residence for the Execution of Security Measures, hereinafter “REMS”). These institutions have been established recently and though equipped with the necessary safety measures, the focus is on psychiatric therapy. Despite being present on a national scale, access is very limited in terms of capacity. Immediate remedial measures are needed, so much so that the European Court of Human Rights recently condemned Italy for this very reason. This article, through a review of the constitutive principles of these institutions, shows how they have very positive aspects such as the attention to necessary psychotherapy in order to protect the right to health and the real taking charge of the fragility of the subjects; however, it is seen how there are many negative aspects linked above all to the scarce availability of places in these structures. The article provides suggestions on a more comprehensive strategy for facilities for detainees with mental disorders.

The first attempts of the European Commission and Parliament to invoke Art. 7(1) of the Treaty on European Union against the Polish and Hungarian governments demonstrate the EU’s political willingness to claim its own authority in defending core European values (Art. 2 TEU) in case of state disobedience. However, despite these attempts to integrate the Rule of Law concept into the overall EU’s supervisory machinery, the Commission’s and the Parliament’s submissions indicate a lack of coherency in implementing the principle as a relevant tool to address multiple challenges arising within the EU Member States legal systems. The parallel developments in the CJEUs case-law (LM/ML, Torubarov) support this statement. Regardless of the Council’s yes/ no decisions in the Polish and Hungarian cases, these lines of reasoning are capable of giving rise to further questions in application of the European Arrest Warrant Framework decision or the Asylum Procedures Directive, in particular the EU Member States which remain within the scope of the EU’s attention in view of systemic Human Rights violations (Italy, Romania, Bulgaria, Croatia). Moreover, the series of the CJEU’s judgements on the Polish judicial reform are capable of paving the way to the de facto intervention into traditional areas of the EU Member States competence – the organisation of the national judicial systems, in light of the development of a EU-specific principle of effective judicial review.

Public Prosecutor v. Ashby. Judgment No. 161/98.Court of Trento, Italy, July 13, 1998.On February 3, 1998, a U.S. Marine EA-6B aircraft, redeployed at Aviano air base as part of Operation Deliberate Guard in support of the multinational Stabilization Force (SFOR) in Bosnia, was on a low-level training mission over northern Italy when it severed the wires of the cable car at the Cermis ski resort near Cavalese, causing the deaths of twenty people. Because the exercise of criminal action is mandatory under Article 112 of the Italian Constitution, the public prosecutor decided that he had to institute preliminary investigations immediately, with a view to determining whether to prosecute. On July 13, 1998, an Italian judge, in a preliminary hearing, rejected the prosecutor's request that seven U.S. servicemen stand trial for the cable-car accident. The judge found that, under Article VII, paragraph 3(a) (ii) of the NATO Status of Forces Agreement (NATO SOFA), the United States, as the sending state, had the primary right to exercise jurisdiction over the case and that jurisdiction had not been waived. Accordingly, the judge dismissed the case.

Abstract Four-year-old Tafida Raqeeb suffered a sudden and catastrophic brain injury resulting from a rare condition. UK doctors would not agree to a transfer of Tafida to a hospital in Italy in circumstances that they considered to be contrary to her best interests. Her parents applied for judicial review of the hospital decision and the hospital Trust applied for a determination of Tafida’s best interests. The cases were heard together. The High Court ruled that Tafida could be taken to Italy for treatment. Applying the best interests test, Mr Justice MacDonald found that Tafida was not in pain and ongoing treatment would not be a burden to her. Further treatment would comply with the religious beliefs of her parents. The case is specific to its facts, but MacDonald J’s interpretation of the best interests test is likely to have implications. In particular, we explore the separation of medical and overall best interests; the recognition of the relevance of international laws and frameworks to best interests determinations; and reliance not on what Tafida could understand and express but on what she might in future have come to believe had she followed her parents’ religious beliefs.

In the last three decades, the dilemma of End-of-Life is one of the most disputed bio-juridical questions Italy is confronting with. By raising highly sensitive ethical, legal and political dilemmas, it has deeply divided the Italian society, the scientific community and the political arena. In the context of a raging controversy, the Italian Parliament has opted for silence. Thus, an evolutive, judicial route has marked the legal frame in response to numerous, concrete demands of recognition of the freedom of self-determination and value of dignity in the final phase of life. In this review article, an overview of the judicial evolution of the complex mosaic of end-of-life issues will be firstly offered through three cases, pillars on which the latest judicial evolution on assisted suicide lays its foundations. Secondly, the issue of assisted suicide will be singularly addressed through the examination of the Cappato case which has outlined the path for the historical ruling of the Italian Constitutional Court, no'242 of 2019 on the constitutional illegitimacy of the crime of assistance to suicide under article 580 of the Italian Criminal Code. Precisely, the Court has pointed out several, concurrent requirements in presence of which an active conduct directly connected with suicide is not criminally relevant: the autonomous and free formation of the individual will, the irreversible nature of the disease, the ongoing practice of a life-saving treatment, the intolerability of the physical or psychological sufferings and the mental capacity to self-determination. Among the numerous, emerging, interpretative questions, the latest Trentini case, in which the requirement of life-saving treatment has been interpreted as inclusive of pharmacological therapy and of every material, sanitary life-saving assistance, will be further evaluated. Conclusively, a cross section of the fragile interplay between the legislative power and the judiciary power will be depicted in reference to the main open interpretative questions related to the enforcement of the constitutional ruling and a portrait of the upcoming scenerios, as the existing legislative drafts and the prepositive referendum question, will be concisely examined.

- The law of February 8, 2006 has theoretically sanctioned the principle of parental dichotomy, putting the two parents at the same level; however the Italian judicial system often seems (to represent an optimal field to increase) to sharpen the contrast that it pretends to reduce as solutions (adapted) suitable for single, rather than for the whole family system, are often proposed. The partition of children is a specific case; they sometimes are divided among parents. In such context a particular type of Parental Alienation Syndrome (PAS) can arise which can be defined as inter-crossed or bilateral. In this work I intend to provide useful information to characterize PAS, although still little is known and studied in Italy, through a review of the existing literature and some suggestions that are the result of my experience in the field, offering a diagnosis of the phenomenon through the observation of minor children and their families' dynamics.Key words: separation, shared confidence, Parental Alienation Syndrome

The review covers The II International Civil Congress on Comparative Studies (Mozolinskie Readings) "The Role of Man in Civil Law", dedicated to the 90th anniversary of Kutafin Moscow State Law University (MSLA) held online on December 4-5, 2020. The Congress was organized by the Department of Civil Law of Kutafin Moscow State Law University (MSAL), the Scientific and Educational Center of Private Law of Kutafin Moscow State Law University (MSAL), the Statute Publishing house, the Russian Arbitration Center at the Russian Institute of Modern Arbitration, the Institute of International Relations and Socio-Political Sciences of Maurice Thorez Moscow State Linguistic University (The Maurice Thorez Institute of Foreign Languages). The Congress was organized with the participation of the Department of Civil and Administrative Proceedings and the Department of History of State and Law of Kutafin Moscow State Law University (MSLA).The Congress was attended by Russian and foreign scientists from Austria, Armenia, the Republic of Belarus, Italy, China, Latvia, Poland and the United States, as well as a representative of the world intellectual property organization. The total number of participants of the Congress was more than 600 people.On the first day of the Congress, a plenary session and a panel discussion "The Role of an and the Role of IT in Judicial Protection" were held. On the second day, master classes for young scientists, a platform for presentations by young post-graduate scientists and creative workshops for students were organized with moderation by leading scientists on the topic of the creative workshop. The sponsor of the creative workshops was the "ConsultantPlus" company.

AbstractThis special section tells the story of Covid-19 through the lens of national responses, serious concerns about unprecedented human rights limitations and infringements, and the respective role of courts in public health emergencies. It compiles perspectives on disease control developments in Brazil, Italy, Poland, Taiwan, the U.S., and the EU to explore various aspects of judicial review protecting, or failing to protect, human rights. It offers insights from states and regions which have experienced high pandemic rates or may attract attention for not treating human rights as a priority. Amidst the crisis of multilateralism and the World Health Organization (WHO) authority, and the fact that public health is typically a national power, the Articles focus on the state-level analyses to inspire comparative findings and further research. The section also draws on diversity and transdisciplinarity. The contributions are authored by scholars specializing in wide-ranging areas of law, including constitutional, health, private, and human rights law, as well as in political philosophy and public health. This text introduces the special section by offering a broader picture of the human rights’ problématique in times of pandemics.

So far, in the application of legal analytics to legal sources, the substantive legal knowledge employed by computational models has had to be extracted manually from legal sources. This is the bottleneck, described in the literature. The paper is an exploration of this obstacle, with a focus on quantitative legal prediction. The authors review the most important studies about quantitative legal prediction published in recent years and systematize the issue by dividing them in text-based approaches, metadata-based approaches, and mixed approaches to prediction. Then, they focus on the main theoretical issues, such as the relationship between legal prediction and certainty of law, isomorphism, the interaction between textual sources, information, representation, and models. The metaphor of a crossroad shows a descriptive utility both for the aspects inside the bottleneck and, surprisingly, for the wider scenario. In order to have an impact on the legal profession, the test bench for legal quantitative prediction is the analysis of case law from the lower courts. Finally, the authors outline a possible development in the Artificial Intelligence (henceforth AI) applied to ordinary judicial activity, in general and especially in Italy, stressing the opportunity the huge amount of data accumulated before lower courts in the online trials offers.

International Journal of English and Cultural Studies (IJECS) would like to acknowledge the following reviewers for their assistance with peer review of manuscripts for this issue. Many authors, regardless of whether IJECS publishes their work, appreciate the helpful feedback provided by the reviewers. Their comments and suggestions were of great help to the authors in improving the quality of their papers. Each of the reviewers listed below returned at least one review for this issue.Reviewers for Volume 2, Number 1 Abdelhamid M. Ahmed, Helwan University, EgyptAli Dabbagh, Gonbad Kavous University, IranAlvaro Recio, University of Salamanca, SpainAna Costa Lopes, Higher School of Education of Viseu, Viseu Polytechnic Institute, PortugalChia-Cheng Lee, Portland State University, USAElena Orduna, Universidad Complutense de Madrid, SpainEllie Boyadzhieva, South-West University, Blagoevgrad, BulgariaEmmanuel Chibuzor Okereke, National Examinations Council, Enugu State Office, NigeriaFarzaneh Shakki, Islamic Azad University, IranGillian Steinberg, SAR High School, USAJerald Sagaya Nathan, St. Joseph’s College , IndiaJonah Uyieh, University of Lagos, NigeriaJoseph Hokororo Isamail, Institute of Judicial Administration Lushoto, TanzaniaKeeley Megan Buehler Hunter, Southern New Hampshire University, SwitzerlandLeo H. Aberion, NIVERSITY OF SAN JOSE-RECOLETOS, PHILIPPINESMałgorzata Podolak, Maria Curie-Skłodowska University in Lublin, PolandMariam Nemsadze, Akaki Tsereteli State University, GeorgiaMohammed Nasser, Wasit University, IraqNeil Mc.Caw, University of Winchester, UKNicolau Nkiawete Manuel , Agostinho Neto University, AngolaRaven Maragh, Gonzaga University, USAShashi Naidu, Ball State University, United StatesSilvia Pellicer-Ortín, University of Zaragoza, SpainStevanus Ngenget, Catholic University of De La Salle Manado, IndonesiaTorbjörn Lodén, Stockholm University, SwedenVasfiye Geckin, Bogazici University, TurkeyVesselina Anastasova Laskova, University of Udine, Italy Nina HowardEditorial AssistantInternational Journal of English and Cultural StudiesRedfame Publishing9450 SW Gemini Dr. #99416Beaverton, OR 97006-6018, USAWebsite: http://ijecs.redfame.com

Introduction: Public Mental Health Services in Lombardy (Italy) has 27 Departments for Mental Health and Addiction Services and a number of private residential facilities. With the reorganization of the entire Healthcare system to deal with COVID-19, Regional Health Authorities recognized mental health as a priority and authorized the continuation of mental health services for the general population. Objectives: To review the initiatives and procedures implemented in Lombardy during the Covid-19 pandemic in relation to the organization of Psychiatric Services and continuity of psychopharmacological treatment. Results: Hospital admissions for acute psychiatric disorders in patients positive for COVID-19 required a dedicated area in the psychiatric ward or alternatively, a medical ward supported by psychiatric staff. Psychiatric hospital activity for patients negative for Covid-19 has been maintained as usual. The activity in the Mental Health Centers has been maintained in patients suffering from severe mental disorders as well as in those with serious social problems or judicial sentences. Particular attention was paid to patients’ clinical monitoring and drug administration. Long-acting Injection antipsychotics were often preferred to oral treatment to ensure adherence and continuity of care. Appropriate e-health technologies were used to reach patients and their families, for monitoring patients and avoiding drop-outs of patients with serious diseases. Conclusions: Maintaining continuous monitoring of patients in contact with mental health services is essential for a careful assessment of their condition from both a psychopathological and medical point of view during pandemic.DisclosureNo significant relationships.

The article is devoted to the study of the content of the model of constitutional jurisdiction proposed by H. Kelsen, which at one time actually became the theoretical basis of the modern European system of constitutional justice. It is stated that the model formulated by a well-known Austrian law theorist not only envisaged instrumental-institutional proposals for the creation of a new public authority, but also embodied the definite concept of common sense of law defined by Kelsen, which was based on the ideas of a hierarchical legal system acts of the Constitution as the law of the highest legal force. It is substantiated that the model proposed by H. Kelsen substantially outstripped the existing legal reality and was used almost in its purest form by most European countries, and in particular was directly reflected in the domestic model of constitutional jurisdiction. It is noted that, according to Kelsen's concept in a number of papers, in particular in the Judicial Review of Legislation: A Comparative Study of the Austrian and American Constitutions, the constitutionality of legislation can be ensured in two separate ways, both of which were enshrined in the Austrian Constitution of 1920: the responsibility of the body that issued the unconstitutional norm and the non-application of the unconstitutional norm. Non-application of a constitutional rule could be achieved by giving law enforcement authorities the power to review the constitutionality of a rule they must apply in a particular case and refuse to apply it in that particular case, if there is reason to consider such a rule unconstitutional. A similar mechanism has actually been introduced in the United States. The fact that a law enforcement authority recognizes a general rule as unconstitutional and does not apply it in a particular case meant that that authority was empowered to revoke the general rule for a particular case, and only for a specific case, since the general rule as such (normative act) remains applicable and may be applied in other specific cases. The disadvantage of this fuse is that different law enforcement agencies may have differing views on the constitutionality of a law, whereby one authority can apply it as it considers constitutional, while another authority will refuse to apply it because it will see signs of unconstitutionality. The lack of unanimity in deciding whether a law is constitutional, that is, whether a constitution is violated, carries great danger for the authority of the constitution. In most European countries, it is stated that H. Kelsen's concept was used almost in its purest form, with one exception: the powers to directly protect constitutional rights and freedoms were given to a separate judicial authority. The extension of the appropriate model of judicial constitutional control and the formation of constitutional courts fell in the second half of the twentieth century, when the need to prevent the return of Nazism caused a qualitatively new level of attention to the phenomenon of constitutional justice. The formation of new post-war constitutional-democratic regimes in Germany, Italy, Austria, and later in Spain and Greece, provided for the creation of a mechanism by conferring on the constitutional courts powers to protect constitutional rights and freedoms from usurpation of public power.

Abstract Background: 95% of HIV- and HCV-infections among PWHs occurred with use of contaminated blood products prior to 1985. Overall, 20% to 90% of PWHs in developed countries have HIV- and/or HCV-infection. We compared country-specific public health approaches, judicial activities, and compensation for these viral infections. Methods: Reports from hemophilia organizations, national ministries of health, published articles, and the World Federation of Hemophilia were reviewed. Results: Except for the United States, the number of PWHs who developed HCV-infection from contaminated blood products was 1.5 to 3-fold as great as for HIV-infection- as a result of delayed use of heat-treated blood products, importation in late 1984 of HCV-infected non-heat treated blood products from the United States, and failure to use surrogate laboratory marker hepatitis screening tests. Compensation funds for HIV-infected PWHs were established in Japan ($521,000 at Dx); France ($305,000 at Dx; $102,000 for AIDS); the United States ($115,000 at Dx); Ireland ($106,000 at Dx); the United Kingdom ($55,000 at Dx); Australia ($48,000 at Dx); Canada ($13,000 at Dx/$18,000/yr); Germany ($12,000/yr for HIV; $24,000/yr for AIDS); and Italy ($6,000/yr; $82,000 at death). Compensation has also been provided to HCV-infected PWHs in Ireland ($266,000 at Dx); Canada ($251,000 at Dx); the United Kingdom ($33,000 at Dx; $42,000 if w/liver damage); and Italy ($10,000/yr; $37,000 at death). Conclusions: In most developed countries, despite a greater number of HCV-versus HIV-infected PWHs, markedly less attention has been paid to HCV-infected PWHs. All countries should review HCV-related blood safety decisions made in the 1980s and consider providing compensation to HCV-infected PWHs. A comparison of national responses to HIV and HCV infections from blood products Country -PWH (thousands) % PWH with HIV:HCV Man-dated HIV ELISA (date) Man-dated heat Rx factor (date) Anti-HBc marker screening (date) Nat’l Funds for HIV/HCV among PWHs (year) Nat’l Panels for HIV/HCV decisions (year) USA-20 50%:30% Mar 85 Oct 84 Oct 84 96/none 95/none Italy- 8.7 23%:55% Mar 85 Jul 85 None 92/98 92/05 GDR- 6 47%:90% Oct 85 Oct 85 None 95/none 94/none UK-6 28%:80% Oct 85 Jun 85 None 88/03 87/05 France-4 50%:90% Aug 85 Oct 85 None 89/none 91/none Japan-3.4 60%:90% Nov 86 Jun 86 None 88/none 96/none Canada-2 40%:88% Nov 85 Jul 85 None 89/98 97/none Australia-1.5 31%:90% May 85 Jan 85 None 89/none 88/none Ireland-0.3 36%:76% Oct 85 Feb 85 None 91/97 91/97

The review presents the most important provisions of the monograph by E.N. Tonkov and D.E. Tonkov under the title «Legal Realism» (St. Petersburg: Aleteya Publ., 2022. 464 p.) and their assessment. The reviewed work is interesting not only for its in-depth historical coverage of the origin and evolution of legal realism in the USA, Scandinavia and Russia, but also for the analysis of its current state. Legal realism, according to the authors, is one of the most relevant directions for post-modern jurisprudence in the scientific thought of France, Italy, the USA and other countries, including post-Soviet Russia. The relevance of legal realism is justified not only by the search for a «third way» in the legal understanding (between legal positivism and the concept of natural law), but also by bridging the gap between the dogmatic theory of law and legal practice. The first section contains a detailed description and analysis of the main provisions (ideas) of the founders of legal realism in the USA — K. Llewellyn and D. Frank (including from the positions of their modern interpreters), as well as the conceptualization of this trend from the standpoint of today. The distinctive features of the movement (but not the school, which the authors rightly insist on) of legal realism are given. Of particular interest is the analysis and conceptualization of the problem of legal certainty and judicial activism from the standpoint of American legal realists, presented on the pages of the monograph.The second section of the monograph analyzes the main provisions of Scandinavian legal realism — the legacy of A. Hagerstrom, V. Lundstedt, K. Olivecrona and A. Ross. Perhaps, the content of the third section of the monograph devoted to Russian legal realism will arouse the greatest interest among many readers. The study of the relatively recent historical past of our country is extremely important for a lawyer, according to the authors, because the current state of law and order is largely determined by this past. The analysis of the doctrine as a source of law, the multiplicity of legal systems, including individual regulatory systems and the inevitability of conflicts between them, is one of the best places in the reviewed monograph. The fourth section of the monograph is devoted to the analysis of modern postclassical concepts of legal realism presented by B. Leiter, B. Tamanakhi, M. Troper, B. Bix and others, which will undoubtedly arouse considerable interest in the reader, as well as a wonderful monograph as a whole.

The latest trend in modern European constitutionalism is the issue of constitutional identity. Constitutional courts, which are the embodiment not only of the protection of the Constitution, but also of the limitation of power, are influential subjects of assessing the country’s international obligations and their implementation in national legislation. The purpose of the article is to analyze the constitutional identity in the argumentation of decisions of constitutional courts. The research method is a comparative legal analysis of the practice of constitutional review bodies in order to assess the expression of the concept of respect for national identity, which has become a condition and principle of legal integration in the European region. In addition, empirical analysis of decisions of constitutional courts was used. Using the system-structural method, the doctrine of «constitutional boundaries» as a component of constitutional identity is analyzed. It is justified that the concept of «identity» appeared and began to be actively used by European constitutional courts to justify decisions related to the processes of European integration and the expansion of the influence of supranational institutions of international organizations, including the European Union. It is proved that the decisions of constitutional courts should be based on national legal values, taking into account international practice and the principle of the supremacy of the Constitution. At the same time, national courts must take into account the country’s international obligations when making decisions. In today’s world, constitutional courts cooperate with the courts of international organizations, which form a common case law in the member states, in particular on the interpretation of human rights. This is manifested in the citation by constitutional courts in their acts of decisions of supranational judicial bodies. It should also be noted that the constitutional court may be guided by the positions of international courts in forming its legal position, but according to the doctrine of judicial discretion, the national court is free to assess the circumstances of the case and it is best acquainted with national features and specifics of national law. The analysis of the decisions of the bodies of constitutional proceedings, which used the concept of constitutional identity, gave grounds to claim that the courts in their practice in their interpretation appealed to different arguments depending on the specifics of the case. For example, in formulating the doctrine of constitutional boundaries, the Constitutional Court of Italy, in substantiating its decision, used at the same time an argument by analogy, an argument of agreement, an argument of general principles. The Federal Constitutional Court of Germany in its decision in the case of the Maastricht Treaty resorted to naturalistic and systemic arguments. It is concluded that constitutional identity is a system of interpretive arguments used by constitutional courts to substantiate decisions that verify compliance with the national specifics of constitutional norms. Of course, this applies to the categories of so-called «difficult cases», for the argumentation of which requires a system of strong arguments.

This research is aimed to find and introduce a new idea on the state administration, which has implications on the international treaty ratification procedure followed by Indonesia and additional authorizations of the Constitutional Court of the Republic of Indonesia. The judicial preview in this research is an international treaty examination procedure by the Constitutional Court before an international treaty is transformed into a law, i.e. such international treaty is a Bill. The judicial preview shall have different terms in each country, such as Review ex ante, abstract review, judicial review. This procedure is applied when an international treaty has not been validated as a country’s national law. The benefits of a judicial preview shall be a solution to connect an ambiguity between the state administrative law and international law. The judicial preview is also the inter-state institutions real check and balance on the international treaty. Out of benchmarking results of four countries following the monism doctrine, i.e. Russia, Germany, France, and Italty and two countries following the dualism doctrine, i.e. Hungary and Ecuador, several additional authorizations of the Constitutional Court shall be summarized, i.e. via the Amendment of 1945 Constitution of the Republic of Indonesia and/or regulations via laws. If both manners are not possible, the Constitutional Court may apply the judicial preview as a state administrative practice. An international treaty draft, which has passed through the judicial preview, may not be submitted to the Constitutional Court to be performed a judicial review, unless 5 (five) year-period has passed since the bill is enacted as a law.

The authors discuss legal nature of the Protocol No. 16 to the European Convention on Human Rights (ECHR) which entered into force on 1 August 2018. With the aim of improving the judicial dialogue between European Court of Human Rights (ECtHR) and highest national courts, the Protocol No. 16 introduced the advisory opinion procedure at the ECtHR level. A detailed analysis of the impact of advisory opinion procedure on the judicial dialogue is included and is further supported by the reviews of cases at the ECtHR against Slovenia, Belgium and Italy, which illustrate how a possibility to request an advisory opinion could have prevented finding of a human right’s violation on the Strasbourg level and raised the effectiveness of human rights standards. The authors believe the Protocol No. 16 has brought a lot of potential for improvement of the judicial dialogue, which could lead to better understanding of ECHR standards, as interpreted by the ECtHR, and therefore prevent human rights violations already on a national level.

Compared with the general population, incarcerated people have a higher prevalence of several communicable diseases, including viral hepatitis. Nevertheless, there is still a lack of literature in field. Our review aims to shed the actual knowledge on viral hepatitis among incarcerated people in Italy. We performed a comprehensive literature search, through key electronic databases (Scopus, Pubmed–MEDLINE) and search engines (Google Scholar), of peer-reviewed publications (articles and reviews), grey literature on viral hepatitis prevalence, and models proposed for active case finding and control strategies in prison settings. We found that viral hepatitis epidemiology drastically changed in the last five years, particularly on hepatitis C virus (HCV), reporting an HCV antibody (HCV-Ab) prevalence decrease from up to 38% to ˂20% in penitentiary institutes, as well as an even more important reduction in active infections. Probably, the availability of direct-acting antivirals is contributing to this scenario. However, there is a lack of data available regarding incarcerated women. For this reason, more tailored interventions are needed for this sub-population. Judiciary and regulatory bodies should be prompted to discuss and define specific regulations to optimize case active finding strategies, guarantee wide access to effective preventive and treatment options for viral hepatitis and enhance treatment management.

In Europe, the modern legal systems, as a rule, provide for the right of citizens to a free and informed choice in matter of family planning and procreation, and therefore the right of women to resort to abortion in case of medical and social indications, or even in case of the mother’s request to terminate an unwanted pregnancy. However, being abortion not only a legal issue, but also a social and moral one, different legal systems adopt a wide range of normative models, which take into account, among other things, the existing cultural traditions and the influence of Church on society. Many states recognize the mother and other relatives’ right to compensation arising from the birth of an unwanted child. Much more controversial is the recognition of the rights of a child with a congenital pathology to indemnity from unwanted birth as a result of medical error. In the present article it is examined the experience of Italy, a country where family traditionally represents a considerable cultural and symbolic value. The paper reviews the main normative acts governing the performance of abortion. The research investigates the issues concerning the legal regulation of the compensation for damages arising in connection with the birth of an unwanted child. The present study examines the trend, emerging in the judicial practice, towards the recognition of the physically challenged child’s rights to compensation for the damage deriving from the birth as a result of medical errors.

Abstract Scholarly debate concerning the judicial review of parliamentary proceedings has mainly focused on the constitutional principles in the light of which such a review should be excluded/grounded/limited. However, the equilibrium point between these principles remains elusive. This essay does not attempt to resolve this issue, since appropriate solutions can differ greatly from one legal order to another. Moreover, this being a matter of balance, a solution cannot be given once and for all, even domestically. Instead, this essay aims to enrich existing studies, suggesting a methodology for viewing (and critically analysing) the equilibrium point in a domestic setting. First, however, supranational/international ‘constitutional’ principles should also be considered. Some examples of case-law (mainly concerning Italy) will be given. Secondly, such a balance should be viewed within the theoretical framework of the specific system of constitutional justice established domestically (i.e. types of standards, acts to be reviewed, jurisdictional disputes, subjects that can initiate disputes, violations of the Constitution). The validity of this second approach is then proved as it relates to Italy.

PurposeThe purpose of this paper is to compare the different performance-based budgeting models used in the judiciaries of three European countries: Italy, Finland and the Netherlands. In particular, this paper focusses on the criteria adopted by these three countries to fund the courts, and it analyses the effects of these criteria on the distribution of resources and performance variability among first instance courts.Design/methodology/approachThis exploratory research is based on a literature review and data analysis of three case studies. Equity in resource distribution and equality in courts' performance are assessed using the coefficient of variation.FindingsThe preliminary findings suggest the following: (1) funding models with a close link between performance and budget better guarantee equitable allocation of resources among courts and, therefore, more equal performance among courts within a country; (2) unbalanced allocation of resources is associated with disparities among courts in terms of judicial efficiency and effectiveness and consequently, unequal treatment of/outcomes for citizens coming before the law.Research limitations/implicationsThis paper is part of a broader research project aimed at analysing the impact of performance budgeting on the efficiency, quality, organization and values of judiciaries. This study only considers quantitative aspects of performance, but it will be followed by further analysis that will explore performance and judicial budgeting from other perspectives.Practical implicationsThis paper describes examples of three different models of performance-based judicial budgeting from other countries, which aim to reform the budgeting processes of the judiciaries in question. The paper emphasizes the importance of adopting rational and transparent funding criteria in order to ensure judicial independence and accountability and to balance courts' performance, guaranteeing the principle that every citizen must obtain the same treatment before the law.Originality/valueThis paper contributes to the existing performance-based budgeting literature by studying its application to the judiciary, which, due to its peculiarities, is an area that has been overlooked in previous studies and deserves further attention. This study contributes to the court administration literature by exploring the issue of budgeting, which, despite its importance, is still a neglected subject.

AbstractThis paper examines the right to health care. Various expressions of this right may be distinguished. These include both individual rights and social rights which could be based upon international treaties and constitutional rights. They may be found in national health legislation and, in some cases, in jurisprudence. To analyze the consequences of limiting the right to health care, a framework for judicial review has been developed which encompasses these expressions of the right to health care. The framework was used to examine legal and health policy developments in three Western and two Eastern European countries. In Italy and the Netherlands the right to health care is protected constitutionally (but on differing legal bases) while the United Kingdom does not have a written constitution. In contrast, Hungary and Poland have for many years seen the state take responsible for the provision, administration and allocation of health care services and the right to health care was guaranteed theoretically but not in practice because of the lack of (financial) means. However, the Polish Constitution explicitly anticipates possible limitations of the right to health care. What all these countries have in common is a cost containment perspective where the future will bring even tighter limits on what resources patients may consume. Despite differences in legal structure between these countries, where they seem to converge is on the consequences of putting limitations on the right to health care. The courts in Italy, the Netherlands and the UK have formulated conditions drawn from the acceptance that this right has to be judged within the context of limited resources. It may be concluded that finding a compromise between the right to health care and cost containment policies could also be an issue, Eastern European countries will have to face in the future.

By the entry into force of the current Code of Criminal Procedure on 01.02.2014, the national legislator aimed to create a clear, accessible and predictable judicial system for all participants involved in a criminal proceeding, but also to place this system on the pillars of new principles in order to precisely respect human rights and fundamental freedoms. Its objectives have been specifically set out from the very preliminary theses of the adoption of the Code of Criminal Procedure, among which we mention that of establishing an appropriate balance between the requirements for an effective criminal proceeding and respect for the fundamental human rights of all participants in a criminal trial. This was a pressing need, because Romania ratified the European Convention on Human Rights (hereinafter E.C.H.R.) on 20.06.1994, introducing the obligation to respect it by the national judicial bodies, an aspect subsequently transposed into the internal legislation by adopting Article 20 of the Constitution (amended in 2003), as well as by introducing Article 1 (2) of the current Code of Criminal Procedure. Although the role of the European Court of Human Rights (hereinafter E.Ct.H.R.) is not defined by a court of judicial review of the decisions adopted by the national courts, not being able to modify or abolish them, it plays a subsidiary role to the national judicial systems which subsequently must verify the compatibility of internal legislation with the mandatory requirements of the European Court. From the content of the File on Romania, drawn up by the Strasbourg Court Registry, published in January 2021, as well as of its Report for 2020, both published on the website of this institution, it results that between 1997 (the date of the first conviction against Romania) and December 2020, a number of 1578 judgments and decisions passed against our country, and this ranks it in the top four member countries, after Turkey (convicted in 3742 cases), Russia (convicted in 2884 cases) and Italy (convicted in 2424 cases). Statistics also show that, after Romania, there are Ukraine (convicted in 1499 cases), Poland (convicted in 1197 cases), France (convicted in 1048 cases), Bulgaria (convicted in 737 cases) and Moldova (convicted in 473 cases). At the end of 2020, our country was convicted in 82 cases by E.Ct.H.R., and an analysis of the violated fundamental rights shows that the most common is the right to a fair trial provided for in Article 6 of E.C.H.R. (in 82 cases) which includes the right of defence of the person accused of having committed a criminal offence in its content. In accordance with Article 6 (2) and (3) from E.C.H.R.: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law... Everyone charged with a criminal offence has the following minimum rights: to be promptly informed of the nature and cause of the accusation against him in a language which he understands and in detail...; to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”

Abstract Theorists have flirted with the idea of revolution for quite some time, mainly exploring the political, social and constitutional implications of this idea. Revolutions are easily associated with images of violent upsurges, social unrest and overturning of ruling leaders. However, there is a close link between revolutions and constitutionalism more generally: in fact, a revolution is often followed by a new constitutional moment, and the idea of ‘revolution’ has even been used in the context of judicial decision making. In theoretical terms, the intersection between constitutions, constitutionalism and revolution has emerged as a theme in academic legal scholarship in the past few years.1 In this review article, we engage with one of the latest publications in this area, Constitutional Revolution by Jacobsohn and Roznai whose purpose is to offer a theoretical and comparative account of the concept of revolution as applied in/to constitutional law. The article is structured as follows. First, we consider the central claim made in the book, and then comment on some of the methodological choices made by the authors. Next, we situate the book within the broader scholarship on revolutions, exploring the resurgence of the idea of (constitutional) revolutions as unfolded in the social sciences. We then try to ‘recast’ the concept of revolution in constitutional theory by exploring the analytical value of the theorisation and some limits to its application, reflecting on some of the tensions that emerge from such conceptualisation. Finally, we test the theory through the constitutional experiences of two jurisdictions not considered in the book: Sri Lanka and Italy.

Photo by National Cancer Institute on Unsplash INTRODUCTION Gift-giving by patients or their families to physicians has happened since there were patients and physicians, and in many places, it’s still quite common. It’s also potentially problematic, and the why and how of it offer important insight into the physician-patient relationship and human relationships more broadly. Yet ethicists, regulators, and the public have not paid much systematic attention. In the United States, no federal or state legislation directly addresses it. Only in the past two decades did the American Medical Association (AMA) release guidance to physicians about it. That guidance, which permits physicians to accept certain gifts by certain patients under certain circumstances, namely, when it will not influence their medical judgment or cause hardship to the gift-giver, is vague and incomplete – indeed, it’s all of 200 words.[1] Other physician professional organizations have little to add.[2] A few academics and opinion columnists have studied or reflected on the psychology of gift-giving and -receiving and recommended everything from categorical rejection of patient gifts[3] to erring on the side of accepting them, provided they are of modest value, and the motivation behind them can be discerned.[4] However, insufficient attention has been paid to the when and where of those gifts or the significance of clinic-, hospital- or other systems-level ethical safeguards. ANALYSIS When deciding whether they will accept a gift from a patient or their family, physicians must balance the possibility that the gift could cloud medical judgment, lead to favoritism, exploitation, and slippery slopes, or pressure other patients to give, and perhaps even debase the meaning of medical treatment, against the prospect that gift-giving could increase patient trust and satisfaction, as well as empower patients and respect their autonomy and culture.[5] Performing this harm-benefit calculation case by case is challenging and time-consuming. Unsurprisingly, many physicians opt simply to tell would-be gift-giving patients that they appreciate the sentiment, but, as a rule, they accept no gifts. I submit many physicians do this also because they are unaware of how meaningful giving a gift can be for patients or anyone in a disadvantaged position with respect to the gift recipient. They may also not know that there are simple accountability mechanisms they can institute that may prevent many of the possible adverse consequences of gift-giving and -receiving in the context of the physician-patient or physician-patient-family relationship. Unfortunately, many instances in which accepting a gift would have led to net benefit are foregone. It is my belief a consensus could quickly be formed about which types of gifts would clearly be wrong to accept. Few would defend the physician who agrees to use a patient’s villa in the Bahamas or welcomes expensive jewelry or lewd photos. The timing and intent of a gift also matter. Few would forgive the physician who accepted even a modestly valuable voucher to eat at a patient’s restaurant while their eligibility for transplant was being debated or after they had run out of opioid painkillers and were denied a prescription renewal. On the other hand, I doubt even Charles Weijer or the College of Physicians and Surgeons of Prince Edward Island, which views accepting gifts from patients as “boundary crossing,”[6] would demand an orthopedic surgeon turn down the happy picture a pediatric patient drew after recovering from a hip injury and resuming sports. They are also unlikely to criticize an oncology team that graciously receives a fruitcake baked by the sister of an elderly cancer patient after the decision was made and agreed to, around Christmastime, not to initiate another round of chemotherapy. These unlikely refusals may be because rejecting those gifts, all things considered, would seem cruel. But it might also be because there is disagreement about what constitutes a gift: whether it must be a tangible object (are heartfelt thank-yous and hugs not also “gifts”?) or whether it must be something that requires the physician actively do something, e.g., get on a plane. These disagreements about definitions may also partially underlie disagreements about practice. Suppose a patient in a sparsely populated, heavily wooded part of Maine takes it upon himself to offer a sack of apples from his orchard to his internist, who regularly waives fees for those who cannot pay them or will make a house call at any time of the night. In that case, the internist may not consider the apples a gift. He may not think of them as payment or re-payment either. They may exist in some in-between category, much like the knitted slippers brought in by a patient in whose culture “thank you” is seldom said. But clearly, some things are widely perceived as gifts or to have substantial gift-like character. Should they, at least, be rejected? I don’t think so. The act of gift-giving and -receiving can be a sort of ritual and gradually lead to trust and closeness.[7] Perhaps a shy patient whose wife previously sent chocolates to his physician around Christmastime will come to see the physician as a part of his extended family. Perhaps he needs to do so to feel comfortable talking about his erectile dysfunction. Gifts can be expressions of caring.[8] Perhaps an elderly Texan patient imagines her younger physician, whom she has known for thirty years and often sees at the grocery store, as her son and asks to prepare a homecoming mum (traditionally a chrysanthemum flower corsage) for his children’s school dance. Perhaps doing so will give her purpose, make her feel useful, as all her own children have moved away. Giving gifts may also provide patients with a sense of control and help them feel as if less of a power imbalance exists between them and their physician. Perhaps a young judge, who is not used to not being in control, and was previously misdiagnosed with rheumatoid arthritis, is now struggling to come to terms with his Lupus. Perhaps giving the physician who made the correct diagnosis a moderately-priced bottle of scotch restores his confidence or sense of pride to. Gifts are also undoubtedly important to the recipient. When medical providers receive a gift, they may interpret it as a sign that they are valued. While it would be wrong to practice medicine to receive gifts or expect them, there are times, like when ERs and ICUs are overwhelmed because of a viral pandemic,[9] which threatens the will to continue working, and most anything (within reason) that bolsters resolve can be considered good. There is also no obvious distinction between the satisfaction physicians normally receive on seeing their patients recover or being thanked or smiled at and what they feel when they receive a small or “token” gift, like a plate of homemade cookies. The point is that the physician-patient relationship is a human one. Many advocate it should be personal, that physicians should be emotionally invested in their patients, care about and have compassion for them in ways that professional oaths do not fully capture.[10] This dynamic is particularly important in primary care or when the physician-patient relationship continues for long periods. According to one Israeli study, many patients even wish for a relationship with their physician akin to friendship. Those who felt they had such a relationship were more satisfied with their care than those who believed the relationship was business-like.[11] The precedent for this “friendship between unequals” goes back at least to the time of Erasmus, some five hundred years ago.[12] There may be good reasons for physicians to draw the line before friendship, but if accepting certain gifts builds intimacy, and that intimacy does not cross over into an inappropriate relationship, e.g., a sexual or romantic relationship, and if it has the chance to improve healthcare outcomes through improved mood or early disclosure of problems, I think it should be done. Physicians have a prima facie duty to do good for their patients.[13] Most physicians want to do good for their patients and respect their traditions and preferences. I suspect that accepting the gifts from the patients in the examples above would do a lot of good, or at least that rejecting them could do significant harm, including making them or their families feel estranged from the medical community, impeding future care. Physicians might be more comfortable accepting gifts if receiving gifts would not subject them to scrutiny or penalty. They also may feel better if they knew that receiving gifts would not harm their patients and that rejecting gifts might. They should document all gifts they receive.[14] This will enable them to detect if gifts from a particular patient are increasing in frequency or lavishness or changing markedly in character, which could warrant attention. I maintain this “Gift Log” should be maintained in common with everyone at the clinic or in the relevant hospital department and potentially made available to hospital administration for audit. Investigation might be necessary if a gift is given (and accepted) with no explicable context, e.g., not near holiday season or after a treatment milestone is achieved. When possible, gifts should be shared communally, such as placing fruit baskets or chocolates in the staff room. Other gifts, like artwork, can be displayed on the walls. Others should be encouraged to hold physicians accountable if they feel patients who have given gifts receive preferential treatment, including something as seemingly small as priority for appointment bookings. Appearances matter and even the appearance of impropriety can affect the public’s trust in medicine. The culture of medicine has already changed such that nurses now reproach physicians they feel violate the standard of care,[15] and this would be an extension of that trend. Depending on the set-up of the practice, a staff member can be designated for receiving gifts and politely declining those that ought to be declined. Staff members should tell patients, who give gifts in full view of other patients, that they cannot do so in the future. Physicians can politely rebuff patients who wish to give inappropriate gifts, or gifts at inappropriate times and suggest they donate to charity instead. Medical practices and hospitals should develop a gift policy in consultation with staff and patients to avoid needlessly rejecting gifts that benefit both doctor and patient and to avoid pressuring patients into giving gifts. The policy should be flexible to account for the crucial human element in any provider-patient relationship and the cultural nuances of any practice setting. Psychiatrists, who work with particularly vulnerable patients, may need to be more vigilant when accepting gifts.[16] CONCLUSION Though we tend to think health innovation occurs in urban medical centers and spreads outward, there may be something big-city physicians can learn from their rural colleagues about personalized patient-physician relationships. The value of gifts is only one example. Normalizing the acceptance of patient gifts in appropriate restricted circumstances has the added benefit of shining a spotlight on the acceptance of patient gifts in dubious ones. By bringing an already fairly common practice into the open and talking about it, we can create policies that respect patients as persons, prevent abuse, and deconstruct the stereotype of the austere and detached physician. While there is no reason to think that gift-giving would get out of control if appropriate safeguards are put in place, the medical community can always re-evaluate after a period, or an individual medical practice can re-evaluate based on the circumstances of their practice environment. Gift-giving, especially when gifts are of small monetary value, should be recognized as a culturally appropriate gesture with meaning far beyond that monetary value. It is best governed by reasonable gift-giving policies, not banned altogether. - [1] Council on Ethical and Judicial Affairs. “Ethics of Patient-Physician Relationships.” In AMA Code of Medical Ethics, 11. Chicago: American Medical Association, 2021. https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/code-of-medical-ethics-chapter-1.pdf. [2] Sulmasy, Lois Snyder, and Thomas A. Bledsoe. “American College of Physicians Ethics Manual.” Annals of Internal Medicine 170, no. 2_Supplement (January 15, 2019): S1–32. https://doi.org/10.7326/M18-2160; Committee on Bioethics. “Pediatrician-Family-Patient Relationships: Managing the Boundaries.” Pediatrics 124, no. 6 (December 1, 2009): 1685–88. https://doi.org/10.1542/peds.2009-2147. [3] Weijer, Charles. “No: Gifts Debase the True Value of Care.” Western Journal of Medicine 175, no. 2 (August 2001): 77. [4] Lyckholm, Laurie J. “Should Physicians Accept Gifts From Patients?” JAMA 280, no. 22 (December 9, 1998): 1944–46. https://doi.org/10.1001/jama.280.22.1944; Spence, Sean A. “Patients Bearing Gifts: Are There Strings Attached?” BMJ 331, no. 7531 (December 22, 2005): 1527–29. https://doi.org/10.1136/bmj.331.7531.1527; Gaufberg, Elizabeth. “Should Physicians Accept Gifts from Patients?” American Family Physician 76, no. 3 (August 1, 2007): 437; Caddell, Andrew, and Lara Hazelton. “Accepting Gifts from Patients.” Canadian Family Physician 59, no. 12 (December 2013): 1259–60. [5] See above commentators and Drew, Jennifer, John D. Stoeckle, and J. Andrew Billings. “Tips, Status and Sacrifice: Gift Giving in the Doctor-Patient Relationship.” Social Science & Medicine 17, no. 7 (January 1, 1983): 399–404. https://doi.org/10.1016/0277-9536(83)90343-X. [6] College of Physicians and Surgeons of Prince Edward Island. “Respecting Boundaries.” Accessed April 4, 2021. https://cpspei.ca/respecting-boundaries/. [7] The Atlantic’s Marketing Team. “What Gifting Rituals from Around the Globe Reveal About Human Nature.” The Atlantic, 2018. https://www.theatlantic.com/sponsored/hennessy-2018/what-gifting-rituals-around-globe-reveal-about-human-nature/2044/. [8] Parker-Pope, Tara. “A Gift That Gives Right Back? The Giving Itself.” The New York Times, December 11, 2007, sec. Health. https://www.nytimes.com/2007/12/11/health/11well.html. [9] Harlan, Chico, and Stefano Pitrelli. “As Coronavirus Cases Grow, Hospitals in Northern Italy Are Running out of Beds.” Washington Post. Accessed April 4, 2021. https://www.washingtonpost.com/world/europe/italy-coronavirus-patients-lombardy-hospitals/2020/03/12/36041dc6-63ce-11ea-8a8e-5c5336b32760_story.html. [10] Frankel, Richard M. “Emotion and the Physician-Patient Relationship.” Motivation and Emotion 19, no. 3 (September 1, 1995): 163–73. https://doi.org/10.1007/BF02250509. [11] Magnezi, Racheli, Lisa Carroll Bergman, and Sara Urowitz. “Would Your Patient Prefer to Be Considered Your Friend? Patient Preferences in Physician Relationships.” Health Education & Behavior 42, no. 2 (April 1, 2015): 210–19. https://doi.org/10.1177/1090198114547814. [12] Albury, W. R., and G. M. Weisz. “The Medical Ethics of Erasmus and the Physician-Patient Relationship.” Medical Humanities 27, no. 1 (June 2001): 35–41. https://doi.org/10.1136/mh.27.1.35. [13] Beauchamp, Tom L., and James F. Childress. Principles of Biomedical Ethics. 7th edition. New York: Oxford University Press, 2012. [14] Caddell and Hazelton, 2013. [15] See, e.g. Peplau, Hildegard E. “A Glance Back in Time: Nurse-Doctor Relationships.” Nursing Forum 34, no. 3 (1999): 31–35. https://doi.org/10.1111/j.1744-6198.1999.tb00991.x and Ahmad, Ahmir. “The Doctor-Nurse Relationship: Time for Change?” British Journal of Hospital Medicine (2005), September 27, 2013. https://doi.org/10.12968/hmed.2009.70.Sup4.41642. [16] Hundert, Edward M. “Looking a Gift Horse in the Mouth: The Ethics of Gift-Giving in Psychiatry.” Harvard Review of Psychiatry 6, no. 2 (January 1, 1998): 114–17. https://doi.org/10.3109/10673229809000319.