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In his article, the author asks how legitimacy of law and the concept of rules of law can be described taking into account the interaction between aspects of philosophy and sociology as well as the will of the state in states' constitutions. As the rule of law, versus other kinds of rules in our society, should be regarded as a rule of "three-dimensionality" " an interaction between the will of the state, the social, historical, and economic factors, and the idea or concept of justice ", the author focuses his interest on the examination of these three factors always taking into account that law is the will of the state, but that not every decision of the state can be considered as law.
Although geographically it belongs to Europe, as far as the constitutionality control of the statutory provisions is concerned, Greece follows the American system. That means that there is no Constitutional Court and, on the contrary, every court (even those of first instance) are entitled, and indeed obliged, to control the constitutionality of the laws (Articles 87 par. 2 and 93 par. 4 of the Greek Constitution). The Greek Courts examine only the substantial and not the formal constitutionality of the statutory provisions. If a court comes to the result of the unconstitutionality, then the statutory provision is not annulled and removed from the legal order, but it is not applied by the court in the relevant court procedure. The only – rather rare – case where a statutory provision is erga omnes annulled is when this is ordered by a decision of the Highest Special Court (Article 100 of the Greek Constitution), following a disagreement between two of the three highest Courts, namely between Symvoulio tis Epikrateias (highest Administrative Court), Areios Pagos (Cassations Court in Civil and Criminal procedures) and Elegtiko Synedrio (Court of Audit).
The presentation is going to examine the origins of the Greek system of the constitutionality control. It will also focus on the advantages and disadvantages of the Greek system and on the scientific and political discussion. Last but not least, the presentation will examine the role of the Council of State, which, although formally not a Constitutional Court, in practice issues the vast majority of the court decisions which accept the unconstitutionality of statutory provisions.
Religion, churches and religious communities have growing importance in the Law of the European Union. Since long a distinct law on religion of the European Union is developing. This collection of those norms of European Union Law directly concerning religion mirrors today's status of this dynamic process.
Religion, churches and religious communities have growing importance in the Law of the European Union. Since long a distinct law on religion of the European Union is developing.rnThis collection of those norms of European Union Law directly concerning religion mirrors today's status of this dynamic process.
The unrestrainable evolution of medical science and technology is drastically changing health-care, enabling new medical procedures and remedies, which are increasingly intertwined with moral principles. Although a uniform European approach on assisted suicide is lacking, a common trend is developing: the boundary between euthanasia, assisted suicide and end-of-life care and the frontiers of legitimate medicine are becoming increasingly blurred. In Italy, a ruling of the Constitutional Court, no. 242/2019, declared the partial unconstitutionality of article 580 of the Italian Criminal Code, which prohibited assistance in suicide.
Specifically, article 580 excluded the criminal liability for the person who, in the manner provided for in Articles 1 and 2 of the law 22 December 2017, no. 219, “facilitates the execution of intention of suicide, autonomously and freely formed, of one person kept alive by life-sustaining treatments and suffering from an irreversible pathology, source of physical or psychological suffering that he/she deems intolerable, but fully capable of making free aware decisions, provided that such conditions and methods of execution have been verified by a public structure of the national health service, following the opinion of the territorially competent ethics committee.” The present paper analyzes the legal regime of assisted suicide in Italy, the role of the rule of law, and the crucial boundary between the branches of government with regard to this delicate issue, and investigates current legal challenges and potential future legal tracks.
Subject of this publication is torture as an interrogational instrument in criminal proceedings from a legal history point of view. Thereby, the author makes a distinction between torturing the accused on the one hand and, on the other hand, torture as an instrument to force a witness' incriminating testimony against third parties (in German: Zeugenfolter), torture as a means to avert dangers (lifesaving torture), torture as an additional cruelty to the accused's punishment (in German: Straffolter), and corporal punlishment for lying in a court. Only the first manifestation, namely torturing the accused intending to extort his confession, is the real subject of this paper.
The article deals with the responsibility of the financial sector under criminal law in Germany. This question has been of special interest since the beginning of the financial crisis. The author argues that the transactions of asset-backed securities based on American subprime mortgages fulfill all legal elements of the criminal offence "breach of trust" (Untreue). From the author's point of view, the people's legal loyalty would be severely affected if there were no criminal proceedings against such bankers who purchased those toxic asset-backed securities without sufficient information on their structure and value. Refraining from criminal prosecution even in cases causing high loss would send a dangerous signal towards the investment banking industry.
Germany as law-exporting nation is a worldwide role model especially for its criminal law and criminal procedure law which has influenced several East Asian countries. The author offers a short historical overview on the establishment of the rule of law in Germany. He describes the role of the German Federal Constitution as source of criminal procedure law by referring to fundamental constitutional principles as well as giving specific case examples. The second part of the essay focuses on the relevance and application of the European Convention on Human Rights. The author points out basic principles of the European Convention on Human Rights and illustrates its influence on German legal practice.
The article deals with the untenable overloading of German criminal trial court judges presenting the overloading in detail and analyzing its reasons and consequences. In this context, serious failures by the German federal and state executive and legislative organs as well as undesirable developments of the Federal Constitutional Court's (BVerfG and the Federal Supreme Court of Justice's BGH) case law.
Subject of this publication is torture as an interrogational instrument in criminal proceedings from a legal history point of view. Thereby, the paper at hand is the continuation of Volume I (published in 2014, number 68 of the Legal Policy Forum).
Volume II covers the following historical periods: Late Middle Ages and Early Modern Age; the latter ending with the 18th century as the so called Century of Enlightenment, being the actual beginning of the Modern Age in criminal law and criminal procedure law.
The paper ends with critical remarks against the predominant view that the torture's reign of terror in the former inquisitionsprozess merely was the inevitable consequence of the unreasonable kaw on evidence applicable at that time.