Vienna Journal on International Constitutional Law
ISSN 1995-5855 (Online)
Abstract: This work deals critically with the Islamic full veil ban in public spaces, that is starting to be adopted in some European countries and is being echoed in some regulations in Spanish municipalities. After a brief analysis of the general bans recently passed in Belgium and France and of the partial bans adopted in schools by other countries, like Germany, Italy or the UK, the article analyses the constitutionality of the recently approved municipal bans in Spain from a constitutional perspective, including the case-law of the European Court of Human Rights. The author reaches the conclusion that according to the Sp Const 1978 an adequate interpretation of the limitations to the freedom of religion and the right to one’s own image, involved when wearing an Islamic full veil, would make a general ban on the full veil in each and every public space unconstitutional, but would allow its partial ban regarding the access to municipal buildings or services or regarding teachers and pupils at schools, as far as these partial bans could be justified by constitutional values like safeguarding of public institutions or services, or protecting the fundamental rights of others.
Abstract: The twenty-first century is witnessing a number of initiatives to improve the living conditions of animals – worldwide, at the regional and the national level. While the debate on which status should be granted to animals is still undecided, a consensus has emerged about the need for animal welfare and the (moral and legal) obligations of humans towards non-human animals. Today, animal welfare and our moral obligations towards animals have come to be accepted as part of public morality. This article draws attention to this change in moral and legal thinking over the past decades. The consequences of this change are put to the test with regard to a specific protective measure concerning animals – the prohibition of un-stunned (ritual) slaughter. It will be argued that if public morality in the 21st century does indeed include respect for the welfare of animals, it may serve as a legitimate aim to limit the freedom of religion and with that, the practice of un-stunned ritual slaughter.
Understood But Undefined: Why Do Argentina and Brazil Resist Criminalising Terrorism?
Abstract: This article considers why Argentina and Brazil have resisted global trends and pressures towards the adoption and implementation of laws criminalising acts of terror. It is argued that the development of Argentine and Brazilian understandings of ‘terrorism’, resulting from the considerable experience of each nation with state and insurgent terror, has led to persistent anti-counter-terrorism-law policies. Some lessons are drawn from this discussion to educate the evolution of counter-terrorism law and policy more widely.
Abstract: By acceding to the European Convention on Human Rights (ECHR), the EU’s role as supranational player in the complex human rights architecture of Europe will be finally recognized. On 5 April 2013, the negotiators of the accession procedure of the European Union to the ECHR agreed on a package of draft accession instruments. Constituting a milestone on the road to accession, the now revised Accession Agreement still leaves vast room for discussion. By critically scrutinizing some of its modalities, this article will evaluate its impact on the human rights jurisdiction of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) and the relationship between both courts. To this end, it will address the somewhat disproportionate involvement of the European Union in the future jurisdiction of the ECtHR and in the decision making of the Council of Europe in matters linked to the ECHR. Furthermore, it will focus on the compatibility of the Draft Agreement with the principle of autonomous interpretation of European Union Law: a highly relevant discussion for the ECJ’s future Opinion under Article 218 (11) TFEU on the compatibility of the finalized draft agreement with the Treaties – the next hurdle for accession.
Based on an appeal against a notification filed with the Austrian Constitutional Court by a same-sex partner applying for a change of his second name the Court eventually found a provision concerning the change of name contrary to the principle of equality: It is discriminatory to entitle married couples to change their family names also after their marriage whereas same-sex couples may apply for a change of their last names only together with the registration of their partnership.
The competence of the District Administrative Authority instead of the Office for matters of Personal Status to conclude a registered Partnership
The Constitutional Court rejected applications of two same-sex couples, who alleged discrimination because they were not allowed to contract marriage or to conclude a registered partnership at the Office for matters of Personal Status. The Court held that there was no obligation imposed on the legislator to grant the same regulations for marriage as well as for registered partnerships. Consequently, the legislator enjoys a margin of appreciation as regards of establishing the competence of District Administrative Authorities to conclude registered partnerships.
Non-Discrimination between Weddings and the Conclusion of Registered Partnerships: The Ferris Wheel goes round?
In the judgment the Court abrogated a provision of the Civil Status Act that did not allow for the conclusion of registered partnerships outside the office of the competent Authority, whereas the same law allowed for weddings to be held at any place corresponding to the significance of marriage. The Court could not find a justification for this differential treatment and held it to be a violation of Art 14 in conjunction with Art 8 ECHR. With regard to the other aspects of the ceremony for weddings and the conclusion of registered partnerships the Court ruled that the legal provisions read against the background of the constitution did not differentiate unconstitutionally.
The Constitutional Court dismissed the applications against the ESM Treaty and the interpretative declaration thereto as unfounded. While the Court found that both the ESM Treaty and the interpretative declaration could be challenged separately under Art 140a Federal Constitutional Law, the contentions against the ESM Treaty were found to concern primarily policy arguments which the Court was not competent to decide on. Moreover, the Court held that the ESM Treaty contained no unlimited additional funding commitment and that the limits of Art 9 para 2 Federal Constitutional Law regarding the transfer of specific Federal competences to the ESM and EU institutions were respected. Also the new constitutional participation and information rights were found to be compatible with the ESM Treaty. Since the interpretative declaration did not modify the ESM Treaty, it did not need an approval by the National Council according to Art 50 Federal Constitutional Law.
Hungarian Constitutional Court: The Rules of Criminal Procedure in High Priority Cases
The Hungarian Constitutional Court annulled certain provisions in the Code of Criminal Procedure in so-called ‘high priority cases’ for violation of the Hungarian Constitution and the European Convention on Human Rights. The main reasons for their unconstitutionality were the violation of the right to personal freedom and the violation of the right to a fair trial. The ‘criminal procedure in high priority cases’ as a new special procedure was meant to accelerate the administration of justice in the most serious criminal cases (eg murder, cases in connection with organized crime).
Slovak Constitutional Court: Interpretation of the Constitution established a new gap in the constitutional system
According to the Slovak Constitution, the President of the Slovak Republic is obliged to deal with the proposal of the Parliament regarding the appointment of the General Prosecutor if the latter has been elected in accordance with the valid and effective legal rules. The President is obliged to either appoint the proposed candidate within reasonable time or to notify the Parliament about his refusal to appoint the candidate.