Vienna Journal on International Constitutional Law

ISSN 2306-3734(Print)
ISSN 1995-5855 (Online)

Abstract: One of the most serious human rights violations today is occurring throughout the US. In US jails and prisons, individuals are held in solitary confinement for weeks, months and even years. Solitary confinement can cause significant psychological damage, including cognitive delays, increased suspicion and paranoia, increased anxiety, fear, aggression and hostility, heightened feelings of helplessness and depression, and increased thoughts and attempts at self-mutilation and suicide. Many prisoners held in this severe form of isolation are juveniles or individuals with serious mental illness, to whom it is particularly damaging. Although solitary confinement is common in the rest of the world, nowhere is it more prevalent as a long-term prisoner management tool than in the United States. US courts have found that solitary confinement is a violation of the Eighth Amendment to the US Constitution in certain situations, yet the practice persists. As a global movement against solitary confinement grows, the United Nations and regional human rights tribunals have spoken out against the practice. A robust body of international case law has defined the contours of when solitary confinement is cruel, inhuman or degrading treatment, and the instances in which it is torture. International bodies prohibit solitary confinement for juveniles, prisoners with mental illness, and prisoners on death row or with life sentences. International tribunals generally find solitary confinement for all prisoners contrary to applicable law where it constitutes incommunicado detention, where it is unnecessarily prolonged without justification, and where the totality of conditions of confinement cross a threshold into unacceptable cruelty. As international law prohibiting solitary confinement crystallizes, the practice in the United States may be curtailed through reliance on international law by US judges. Further, the US executive may take an increased interest in curbing solitary confinement to avoid reputational damage among the global community.

Abstract: The main argument of this work is that the discourse of social and economic rights in Brazil has been appropriated by privileged economic groups with the result that the constitutional protection of those rights is no longer carrying out its function to reduce economic inequality. This article will be divided into three parts. The first is a discussion of the historic context of patrimonialism in Brazil as well as the origins of economic inequality in the country. The second part is devoted to the theoretical debate surrounding the constitutional protection of social and economic rights in light of what is often referred to as ‘new constitutionalism’, along with an interpretation of the structure for protecting social and economic rights that is present in the Brazilian constitution. The third part consists of a case study of the current state of the judicialization of the right to health in Brazil, with special attention to free concession of medicine and the new legislation on the subject. In conclusion, the paper argues that judicial decisions on the right to health, in particular, and social and economic rights, in general, have been formalistic, with little regard to their (often negative) distributive impact. The solution is then not to move from individual litigation to collective litigation (eg class actions), but to move from an ‘individual rights’ approach to a ‘distributive’ approach, which takes into account the effects of court decisions not only with respect to the parties involved but also to the rights of the poorest of the poor.

Abstract: The past decade has seen impressive gains for human rights activists desiring greater protections for lesbian, gay, bisexual, and transgender (LGBT) persons. However, it has also seen regression: concerted attempts by leaders, particularly in Africa, the Middle East, and Asia, to further criminalize sexual orientation and same-sex sexual activity while vilifying and marginalizing LGBT citizens. This Article explores the recent attempt by the United States and United Kingdom to effectuate a possible solution to the rapid proliferation of these antigay statutes – threats to tie portions of foreign aid disbursements to the ways in which countries treat their LGBT citizens. After examining recent attempts at antigay legislation in a number of nations, most notably Malawi and Uganda, this Article discusses the fundamental differences between the newly proposed American and British foreign aid policies, and critiques the theories underlying their development and implementation. Ultimately, this Article concludes that the American and British attempts to protect LGBT persons through aid conditionality serves as a powerful signaling effect, but will ultimately fail to convince antigay leaders and legislators from further passing these dangerous laws.

Abstract: Taking the financial crisis in Portugal, Italy, Greece and Spain, (commonly referred to with the derogatory acronym PIGS), as backdrop to this analysis, the article claims that institutional design in Europe (focusing on Greece and Portugal in particular) has not addressed the state of economic emergency. This gap in institutional design, together with the unpopularity of emergency austerity measures, raises serious doubts concerning their legitimacy and constitutionality. The article analyses two theoretical responses to this grey area of constitutional legality: the first one construes social unrest in Greece against austerity measures as a legitimate exercise of the right to resistance, entrenched in Art 120 of the Greek Constitution. The second response selected for analysis is the constitutional review of austerity measures by the Portuguese Constitutional Court, which is presented as a robust example of successful constitutional review. The article argues that constitutional review with regards to emergency financial measures oscillates between strict adherence to the rule of law and deference to legislative authority in a time of economic crisis, thus raising serious doubts as to its efficiency and persuasiveness. States of economic emergency should be addressed as an urgent matter of institutional design.

Abstract: The purpose of the paper is to examine the interaction between the sovereign debt crisis and the doctrine of state immunity. For this purpose, the ‘bail-out scheme’ for Greece and more specifically the Loan Facility Agreement concluded between Greece and its Eurozone partners is taken as a case study. The Agreement was signed by the contracting parties on 8 May 2010 and it included an undertaking by Greece to waive its immunity. The contracting parties have conferred exclusive jurisdiction over any dispute that might arise from the Agreement to the ECJ. The main consequence of this is that Greece cannot invoke the plea of immunity, regardless of the inclusion of the waiver in the Agreement. The possibility of a Member State invoking the plea of immunity during proceedings at the ECJ would make the existence of the Court pointless. There would be no formal measures to enforce the ECJ’s decision as such measures are not provided by the Treaties framework for the procedure under Article 273 TFEU. A way of enforcement that involves the institutions of the Union has to be provisioned by the Agreement, which has not been done in this case. Moreover, the judgment should not be enforced as a ‘common’ decision of a national court. Overall, the paper concludes that the notion of state immunity plays a limited role in the sovereign debt crisis.

In administrative penalty proceedings there is no violation of the right to an oral hearing conveyed by Art 6 ECHR when – despite the appellant’s request – the Panel dispenses with it on the grounds that the facts of the case are clear and the decision can be rendered on the basis of the case-file. This is also the case when the only reason for the request was to submit a decision of an authority and this decision was taken into account by the Independent Administrative Panel.

The Constitutional Court repealed the legal provision prohibiting the Austrian Broadcasting Cooperation (ORF) from acting in existing social networks in order to protect the rights of its competitors. However, the Court found the measure of banning the ORF from providing an own social network to be proportional in the light of Article 10 ECHR. The legal dispute has not yet been entirely resolved as a further complaint is pending at the Constitutional Court.

The provision of the Security Services Act empowering the authorities to process personal data by means of DNA analysis for identification purposes is unconstitutional due to its lack of sufficient determinateness and differentiation amongst various types of offences. Moreover, the provisions governing the erasure of retained personal data are only constitutional as far as they allow a complimentary application of the general principles for data processing including the proportionality principle set forth in the right to data protection.

The Constitutional Court held that the mandatory retirement of judges according to § 90 and § 230 of Act CLXII of 2011 on the Legal Status and Remuneration of Judges violate the judicial independence enshrined in Article 26 para 1 of the Fundamental Law. Therefore, the Court annulled these provisions with retroactive effect to the date of entry into force of the Act (1 January 2012).