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Judicial remedies for individuals before the highest jurisdictions, a comparative law perspective - The United Kingdom

09-10-2017

The study presented below forms part of a larger project whose aim is to provide a comparative analysis of the rights of individuals in law proceedings before the highest courts of different States and before certain international courts. The objective is to describe the various remedies developed under domestic law that are available through the UK courts including the Supreme Court which, though not a constitutional court in the classic Kelsenian model, does sits at the apex of the appellate court ...

The study presented below forms part of a larger project whose aim is to provide a comparative analysis of the rights of individuals in law proceedings before the highest courts of different States and before certain international courts. The objective is to describe the various remedies developed under domestic law that are available through the UK courts including the Supreme Court which, though not a constitutional court in the classic Kelsenian model, does sits at the apex of the appellate court structure in the UK. The study commences with an historical introduction which stresses the absence in domestic law of a clearly delineated sense of what counts as ‘constitutional’ .In traditional accounts of the UK Constitution there is no hierarchy of higher order ‘constitutional’ and ‘ordinary’ Acts of Parliament. Neither has a separate court structure developed to handle exclusively constitutional claims, although specialised ad hoc tribunals do exist in public law contexts. The underpinning principles remain (i) the doctrine of parliamentary sovereignty and (ii) the rule of law. After this introduction, a review is provided of the main remedies and procedures used for the redress of grievances against public bodies. In a subsequent section of materials, a table of the main sources of individual rights against the state is provided. The domestic status of constitutional conventions and international law are dealt with in this part. Then, an account of the substantive norms informing the standards of effective protection for the individual is given, including some critical commentary on the operation of key provisions. The concluding section compares the benefits and drawbacks of specialised tribunal adjudication, the ‘politicised’ nature of certain judicial review proceedings against a background of increasing privately-owned provision of services to the public and the continuing relevance of private law tort claims where compensation for mistreatment at the hands of the state is sought.

External author

null, EPRS-ComparativeLaw

EU Justice and Home Affairs Agencies: Securing Good Governance

09-10-2017

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, examines the governance structures of EU Justice and Home Affairs agencies. Specifically, it maps and analyses across-the-board agencies’ relationships to the main institutional actors in terms of core reporting and scrutiny mechanisms. Drawing on agency founding acts and interviews, it looks closely in particular at management boards’ composition ...

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, examines the governance structures of EU Justice and Home Affairs agencies. Specifically, it maps and analyses across-the-board agencies’ relationships to the main institutional actors in terms of core reporting and scrutiny mechanisms. Drawing on agency founding acts and interviews, it looks closely in particular at management boards’ composition and operation, ranging from voting allocation to institutional and Member State representation to issues of board expertise. The study further considers some of the implications of the current governance set up with respect to ensuring co-operation from corresponding national structures, identifying existing structural shortcomings inherent to current mandates and proposing suggestions for improvement.

External author

Dr. Madalina Busuioc, Associate Professor, Institute of Public Administration, Faculty of Governance and Global Affairs, Leiden University

Research of the Policy Department for Citizens’ Rights and Constitutional Affairs and the EPRS in the Fields of Responsibilities of the Special Committee on Terrorism

06-10-2017

This paper provides a detailed analysis of the responsibilities of the Special Committee on Terrorism and the corresponding available and upcoming research of the Policy Department for Citizens' Rights and Constitutional Affairs and the EPRS.

This paper provides a detailed analysis of the responsibilities of the Special Committee on Terrorism and the corresponding available and upcoming research of the Policy Department for Citizens' Rights and Constitutional Affairs and the EPRS.

Judicial remedies for individuals before the highest jurisdictions, a comparative law perspective - United States of America

06-10-2017

This study is part of a larger project whose aim is to provide a comparative analysis of the rights of individuals in law proceedings before the highest courts of different States and before certain international courts. The objective is to describe the various remedies developed under domestic law that are available to individuals in American law, and in particular before this country’s highest courts. To that end, after a general introduction setting out the historical background, we will consider ...

This study is part of a larger project whose aim is to provide a comparative analysis of the rights of individuals in law proceedings before the highest courts of different States and before certain international courts. The objective is to describe the various remedies developed under domestic law that are available to individuals in American law, and in particular before this country’s highest courts. To that end, after a general introduction setting out the historical background, we will consider the various remedies available to individuals at both administrative and judicial level. The next step will be to look at the rules used as reference standards for the protection of individuals, and the case law of the highest courts regarding effective legal protection. Finally, we will draw some conclusions on the situation as a whole, with some suggestions for improvements. The immediate study describes the American model of judicial review, a decentralized model in which all courts have the authority to adjudicate constitutional matters alongside other types of litigation. Judicial review has been a part of major controversies throughout American history. The study describes how federal courts may hear constitutional claims of plaintiffs meeting the jurisdictional requirement for a concrete "case or controversy." It further describes the need for a plaintiff to demonstrate a cause of action in order to enforce his or her constitutional right. Remedies for constitutional violations include injunctive relief, declaratory judgments, damages, suppression of evidence, and post-conviction relief. The study also describes the absence in American law of a right to an effective remedy.

External author

EPRS-ComparativeLaw

Secondary movements of asylum-seekers in the EU asylum system

03-10-2017

Secondary movements occur when refugees or asylum-seekers move from the country in which they first arrived to seek protection or for permanent resettlement elsewhere. While most asylum-seekers seek protection in countries close to their countries of origin, some are compelled or choose to move (often in an irregular manner) onwards from or through countries in which they had, or could have sought, international protection, to other countries where they may request such protection. Many different ...

Secondary movements occur when refugees or asylum-seekers move from the country in which they first arrived to seek protection or for permanent resettlement elsewhere. While most asylum-seekers seek protection in countries close to their countries of origin, some are compelled or choose to move (often in an irregular manner) onwards from or through countries in which they had, or could have sought, international protection, to other countries where they may request such protection. Many different factors may influence such movements and the decision to settle in a particular country. The objective of the current instruments of the Common European Asylum System is to limit secondary movements of applicants for international protection between EU Member States. However, the mass inflow of asylum-seekers to Europe in recent years has shown that the system has been unable to discourage such movements. For this purpose, among others, the European Commission proposed in 2016 a comprehensive harmonisation of asylum rules and a range of new measures on asylum policy.

Policy Departments’ Monthly Highlights - October 2017

02-10-2017

The Monthly Highlights publication provides an overview, at a glance, of the on-going work of the policy departments, including a selection of the latest and forthcoming publications, and a list of future events.

The Monthly Highlights publication provides an overview, at a glance, of the on-going work of the policy departments, including a selection of the latest and forthcoming publications, and a list of future events.

The citizens of the Union and their rights

01-10-2017

Individual citizens’ rights and European citizenship are enshrined in the Charter of Fundamental Rights of the European Union (EUCFR), the Treaty on the Functioning of the European Union (TFEU) and Article 9 of the Treaty on European Union (TEU). They are essential factors in the formation of a European identity. In the event of a serious breach of basic values of the Union, a Member State can be sanctioned.

Individual citizens’ rights and European citizenship are enshrined in the Charter of Fundamental Rights of the European Union (EUCFR), the Treaty on the Functioning of the European Union (TFEU) and Article 9 of the Treaty on European Union (TEU). They are essential factors in the formation of a European identity. In the event of a serious breach of basic values of the Union, a Member State can be sanctioned.

Free movement of persons

01-10-2017

Freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship, established by the Treaty of Maastricht in 1992. The gradual phasing-out of internal borders under the Schengen agreements was followed by the adoption of Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the EU. Notwithstanding the importance of this right, substantial implementation obstacles persist, ten years after the deadline for implementation ...

Freedom of movement and residence for persons in the EU is the cornerstone of Union citizenship, established by the Treaty of Maastricht in 1992. The gradual phasing-out of internal borders under the Schengen agreements was followed by the adoption of Directive 2004/38/EC on the right of EU citizens and their family members to move and reside freely within the EU. Notwithstanding the importance of this right, substantial implementation obstacles persist, ten years after the deadline for implementation of the Directive.

The Charter of Fundamental Rights

01-10-2017

The Charter of Fundamental Rights sets out the basic rights that must be respected both by the European Union and the Member States when implementing EU law. It is a legally binding instrument that was drawn up in order to expressly recognise, and give visibility to, the role of fundamental rights in the legal order of the Union.

The Charter of Fundamental Rights sets out the basic rights that must be respected both by the European Union and the Member States when implementing EU law. It is a legally binding instrument that was drawn up in order to expressly recognise, and give visibility to, the role of fundamental rights in the legal order of the Union.

An area of freedom, security and justice: general aspects

01-10-2017

The Lisbon Treaty attaches great importance to the creation of an area of freedom, security and justice. It introduced several important new features: a more efficient and democratic decision-making procedure that comes in response to the abolition of the old pillar structure; increased powers for the Court of Justice of the EU; and a new role for national parliaments. Basic rights are strengthened by a Charter of Fundamental Rights that is now legally binding on the EU.

The Lisbon Treaty attaches great importance to the creation of an area of freedom, security and justice. It introduced several important new features: a more efficient and democratic decision-making procedure that comes in response to the abolition of the old pillar structure; increased powers for the Court of Justice of the EU; and a new role for national parliaments. Basic rights are strengthened by a Charter of Fundamental Rights that is now legally binding on the EU.

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