Italia. Curtea de Casatie despre discriminare fata de “tiganii hoti”

Din The Guardian. Si nu, in speta materialul nu este romanesc.

Italy’s highest appeal court has ruled that it is acceptable to discriminate against Roma on the grounds that they are thieves.

(…)

The ruling by the court of cassation, which appears to provide judicial backing for the government’s policies, was handed down in March, but reported only yesterday. The judges overthrew the conviction of six defendants who signed a leaflet demanding the expulsion of Verona’s Gypsies in 2001.

Among those convicted of racially discriminatory propaganda was Flavio Tosi, an official of the anti-immigrant Northern League, who has since become Verona’s mayor. He was quoted by a witness at his trial as having said afterwards: “The Gypsies must be ordered out because, wherever they arrive, there are robberies.”

The court of cassation decided this did not show Tosi was a racist, but that he had “a deep aversion [to Roma] that was not determined by the Gypsy nature of the people discriminated against, but by the fact that all the Gypsies were thieves”. His dislike of them was “not therefore based on a notion of superiority or racial hatred, but on racial prejudice”. The judges scrapped the two-month jail sentences and ordered that the case be reheard.

Their ruling was published hours before police in Verona arrested eight Roma of Croatian origin accused of having induced minors to carry out burglaries in northern Italy. The arrests were co-ordinated by the prosecutor who charged Tosi and the others seven years ago.

Franco Frattini, the foreign minister, who until earlier this year was the European commissioner for justice and human rights, applauded the fingerprinting initiative, saying: “These things are done in many other European countries.” He and other government supporters said the main beneficiaries would be Roma children at risk of being forced to break the law.

But an opposition MP, Gian Claudio Bressa, said the government was enacting measures “that increasingly resemble those of an authoritarian regime”. On Sunday Maroni’s top aide was reported to have imposed a vow of silence on three special commissioners appointed to deal with what the Italian media calls “the Roma emergency”.

Franta, noua lege privind organismele modificate genetic & Consiliul constitutional

Din L’Express… Instanta constitutionala s-a pronuntat, constatand ca legea e conforma Constitutiei & principiului precautiunii.

Ce e interesant de sesizat este ca (aproape) toti (actorii implicati) sunt multumiti. Strange, isn’t it? Promitem sa urmarim evolutiile viitoare.

Ce datoreaza CE/UE gandirii juridice din SUA. Articol

Giuseppe Martinico - “Comparative Legal Studies and European Integration: Looking at the Origins of the Debate” (*); redam aici incheierea:

In conclusion, it can be said without any doubt that the intuitions of the American scholars have had a very important impact on the legal reasoning of the European Court of Justice and on the academic debate in the following years respectively. On the contrary, the impact on the language and activity of the European Federalist Movement is less evident.

Concerning the first kind of influence on the legal reasoning of the European Court of Justice, one could say that the features of the initial case-law, more oriented to the French style (short judgements), do not permit to “find” the explicit confirmation of such an influence. In any case, as Weiler and Cappelletti proved later, the technique of integration used by the Court and the “premises” of cases like Van Gend en Loos or Costa/Enel clearly bring to mind the instruments of American federalism integration: doctrine of implied powers, supremacy, incorporation, expansion of federal jurisdiction. The influence on the language of the European Federalist Movement was not fundamental: in their writings, in fact, Albertini and Levi, instead, adopted a notion of federalism and a language which is quite different from that of the American comparative lawyers. On the contrary, later scholars (both from Europe and US) undoubtedly “applied” their lesson by translating the categories and the techniques of federalism in contexts not centred on the national state (international and supranational organizations).

 

European Constitutional Law Review (EuConst), Volume 4, 2008

European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

***, The Difference, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

Clemens Ladenburger, Police and Criminal Law in the Treaty of Lisbon, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

Yves Haeck, Clara Burbano Herrera and Leo Zwaak, Non-compliance with a Provisional Measure Automatically Leads To a Violation of the Right of Individual Application … or Doesn’t It?, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

Elena Simina Tănăsescu, The President of Romania, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

Luuk van Middelaar, Spanning the River, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

Thomas Vandamme, Prochain Arrêt: La Belgique!, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

Florian Geyer, European Arrest Warrant: Advocaten voor de Wereld VZW v. Leden van de Ministerraad, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

Jo Shaw, The Political Representation of Europe’s Citizens: Developments, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

Adam Łazowski, Poland: Constitutional Tribunal on the Preliminary Ruling Procedure and the Division of Competences Between National Courts and the Court of Justice, European Constitutional Law Review (EuConst), Volume 4, Issue 01, February 2008

 

Drept si politica la Curtea Suprema a SUA

O tema intr-adevar fascinanta este aceasta a discernerii preferintelor ideologice din spatele unei hotarari/decizii/jurisprudente a unei instante judecatoresti… Ei bine, semnalam aici un articol recent despre Curtea Suprema a SUA:

Bailey, Michael & Maltzman, Forrest, Does Legal Doctrine Matter? Unpacking Law and Policy Preferences on the U.S. Supreme Court

Abstract:     

To understand and assess the impact that the law has on judicial decision-making on the U.S. Supreme Court, one must disentangle the effects of law and policy preferences. In this paper, we elaborate the fundamental character of this challenge, and then present a novel approach to measuring the effect - if any - of the law on justices‘ decisions. Key to our approach is the use of positions taken by political actors outside of the court who put less emphasis on legal considerations. The positions taken by these actors allow us to pin down policy elements of voting. We use these elements to identify statistically the effects of legal forces including adherence to precedent, judicial restraint in the form of deference to Congress and a strict interpretation of the First Amendment’s protection of speech clause that may guide judicial decision-making. The evidence suggests that legal factors play an important role and that their effects vary across the justices in interesting ways.

Aici

 

 

Brazilia. Hotarare judecatoreasca referitoare la avot & dreptul la viata

Stirea suna astfel:

Brazilian judge declares abortion in cases of rape of minor unconstitutional

Rio de Janeiro, Apr 24, 2008 / 11:44 am (CNA).- A judge in Rio Verde has ruled that a Brazilian law allowing abortion in cases of rape of a minor is unconstitutional because it violates the right to life protected by Brazil’s constitution.
 
Judge Levine Raja Gabaglia Artiaga of Rio Verde refused to authorize a request for an abortion for a young pregnant girl who was allegedly raped.
 
He said abortion goes against human life, “the most protected legal good in the constitutional order,” and that norms that violate the right to life cannot be approved in order to safeguard legal goods that are of lesser importance.
 
Article 5 of the Brazilian constitution states, “All are equal before the law, without any distinction whatsoever, guaranteeing Brazilians and alien residents in the country the inviolable right to life, liberty, equality, security and priority.”
 
Judge Gabaglia rejected the plaintiff’s arguments in the case that giving birth to a baby conceived through a violent sexual act could lead to birth defects because of the father’s genes.
 
He said abortion violates the protection guaranteed in the country’s Civil Code and usurps the rights that are conferred on the unborn, such as the right to life, prenatal protection, and other rights.

Articol despre conflictul intre drepturile fundamentale din perspectiva CEDO, CJCE & a instantelor nationale…

Fundamental Rights and Other Interests - Should it Really Make a Difference?
Janneke H. Gerards

University of Leiden, Department of Public Law
In: Brems, E. (ed.), Conflicts between Fundamental Rights, Antwerp/Oxford: Intersentia 2008

Abstract:     
When speaking about conflicts between fundamental rights, we have the impression that we speak about something special. Courts appear to be willing to decide a case concerning an infringement of a classic fundamental right, such as a civil or political right, since they feel they can do so on the basis of clear legal standards. On the other hand, they are reluctant to adjudicate claims concerning social or economic interests, as they consider political and policy arguments to be of more importance there. Accordingly, courts generally show a larger measure of deference in the latter type of case than in cases concerning clearly identifiable individual interests or rights.The question is, however, whether the distinction we make between classic fundamental rights and other interests is always reasonable and if it is justifiable to attach far-reaching judicial consequences to the distinction. The choice of judicial method and intensity of review should not solely depend on the question whether an individual interest is protected by national or international instruments containing enforceable fundamental rights. This thesis is elaborated in this paper on the basis of the case law of the European Court of Human Rights, the European Court of Justice and administrative courts in the Netherlands and the United Kingdom. On basis of these case law analyses, conclusions are reached regarding the difference between fundamental rights and interests in the assessment methods of national and European courts. Also, a tentative effort is made to formulate an alternative approach.

Aici (*).

Comparatie intre SUA si UE din perspectiva rolului constitutional al instantei supreme sau despre Van Gend & Madbury

Concluzia unui articol:

Van Gend is often casually compared to Marbury simply because in each case the high court declares itself to be the final arbiter of central government law. But there is a good deal more to the comparison than that. Both cases serve up what is perhaps the single most profound and complex issue of their respective constitutional systems: multiple competing claims of ultimate legal authority. In addressing this issue, both decisions make important claims for central judicial authority. And yet, both inaugurate a regime of mutual accommodation among the competing actors lasting to this very day.

To be sure, the nature of the competition in the two cases is rather different. In the United States, the competition is mostly horizontal and institutional, i.e. between the Court, the President, and Congress, as well as the People themselves. And the competition surrounds the interpretation of a single object: the United States Constitution. In Europe, the competition is mostly vertical and systemic, i.e. between the legal orders of the European Union and its Member States. Here the constitutional order of the European Union claims primacy over the constitutional orders of the Member States and vice versa. (In Europe there is also competition among different institutions to interpret the Union’s foundational charter. But this institutional competition is ultimately based on the deeper, systemic competition, i.e. a battle about which legal system(s) trumps the other(s) in cases of conflict.)

And yet, despite these differences, the practice of accommodating institutional pluralism in the United States shares important features with the practice of accommodating constitutional pluralism in Europe. By juxtaposing accommodation in the two systems, we may understand these practices far better than if we limit ourselves to only one or the other legal order. In particular, we recognize that actors in both systems seem to rely on considerations of voice, expertise, and rights to manage the pluralist standoff.

Articolul este denumit “Constitutionalism and Pluralism in Marbury and Van Gend“, Daniel Halberstam (*)

Curtea constitutionala federala (Germania) despre neconstitutionalitatea legii landului Rinul de nord-Westfalia privind supravegherea internetului

Stirea suna asa: 

The court overturned a controversial law adopted in the western state of North-Rhine Westphalia in 2006 that gave intelligence agencies wide-ranging powers to hack into terror suspects’ computers.

“The law violates the right to privacy and is null and void,” the court said in a statement.

It added that Internet surveillance risked being a greater intrusion on privacy than telephone tapping and that it therefore had to close loopholes in legislation that did not take into account new technology and the central role it played in people’s lives.

But it ruled that in principle introducing software onto suspects’ computers to facilitate surveillance could be allowed in cases where “rights of supreme importance” were at stake.

The court said that in each case, the surveillance had to be approved by a judge, and that even then intelligence agencies would not be allowed to use the information if it pertains strictly to people’s private lives.

The court ruling came in response to a legal challenge to the North-Rhine Westphalia legislation brought by a left-wing opposition politician, three lawyers and a journalist.

Stirea intreaga aici (*).