Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

Single-sex education responds to a tradition whose roots were diminishing during the end of the 19th century and the beginning of the 20th. The role of coeducation has been overshadowed by the resurgence of teachings that separate boys and girls. The approaches that support this type of education are now different and far from that model based on building and promoting differences between the sexes. Single-sex education has been endorsed by the Constitutional Court, but there is still a long way to go. It is necessary to delimit the competence of the legislator to implement a compulsory system of co-education for public and state-funded centers, or even private ones.

As one of the tools to create an area with no internal borders, the European Union seeks the recognition and enforcement of judgments given in its Member States.In civil matters, the Regulation (EU) No 1215/2012 is the most important law. This Regulation however contemplates some exceptions. Among these, the exception of ordre public and the exception relating to decisions given by default. In both cases, pleading the exception requires the exhaustion of domestic remedies first.Nevertheless, the CJEU has developed a case-law on the requirements of the procedural remedy through the default of appearance exception. This doctrine focuses on the requirements that an appeal must demonstrate to rectify the irregularities previously committed and thus allow the decision to be recognised in the addressed Member State.According to this case-law, the defendant must have the opportunity to challenge the judgement in the Member State of origin, the procedural remedy must be governed by the principle of adversarial proceedings, and it must review whether the defendant was served with the document which instituted the proceedings in such a way as to enable him to arrange for his defence. If these requirements are met, recognition in the addressed Member State will be granted. As long as a procedural remedy is not available or entails an extraordinary effort for the defendant, recognition will be refused.But, that said, an examination of these requirements leads us to wonder if such a procedural remedy is enough to guarantee the respect for the rights of defence, because the ECHR has stated that respect of the right of defence demands a comprehensive exam of proceedings, not limited to the «procedural remedy phase”. Thus the wording of letter (b) of article 45, paragraph 1, of the Regulation (EU) No 1215/2012 appears no to be sufficient to solve all infringements of the right to a defence when it has been committed in a lower instance. Both perspectives seem contradictory, as ECHR case-law could bump into the CJEU’s doctrine. On the grounds of mutual trust, the CJEU has limited domestic courts’ power to review another Member State’s decision, even if the infringement of the right to a defence is involved.This interaction between both courts is currently ruled by the presumption of equivalent protection. Case-law on the presumption lets us deduce that, regarding human rights, there is an unprotected area where some breaches will remain unfixed. This lack of protection is well known and tolerated by both the CJEU and the ECHR, and it arises when a breach of the defendant’s right to a fair trial, though real, has not been manifest and disproportionate. Summary:I. STARTING POINT: LEGAL JUDGMENTS GIVEN BY DEFAULT SUGGEST A QUESTION. II. CJEU’S CASE-LAW: THE PROCEDURAL REMEDY AS A TOOL TO EXAMINE THE MANNER IN WHICH THE DEFENDANT WAS SUMMONED. III. THE PROCEDURAL REMEDY IN THE ECtHR’S CASE-LAW. IV. INTERACTION BETWEEN THE CJEU AND THE ECtHR. THE ECtHR CONTROL OVER THE CJEU. V. THE REVIEW OF EXCEPTIONS TO RECOGNITION OF FOREIGN LEGAL JUDGMENTS: THE LESSONS LEARNT IN AVOTIŅŠ. VI. CONCLUSIONS.

This paper aims to contribute to the dogmatic development of the duty to compensate unequal public burdens as a correlate or direct effect of the constitutional guarantee of equality before public burdens. To this end, it seeks to contradict the legal reasons on which the compensatory omission is based in certain hypotheses of national law and to propose a list of situations in which the restoration of the lost symmetry should operate.As to the characteristics of the compensatory duty of asymmetrical public burdens, it should be noted that: a) the unequal burden satisfies a public interest; b) the inequality that motivates the compensation is unjustified; c) the compensation only extends to the pecuniary damage effectively caused;and d) the non-existence or omission to exercise compensatory powers does not affect the levied party but only produces the mutation of the compensatory title from distributive equality towards the liability of the State for uncompensated damage in pursuit of public interest.Although the constitutional provision on the equality of public burdens does not establish state liability for unequal levies, it guarantees a compensatory state duty whose infringement gives rise — only then — to state liability (Articles 6 and 7 of the Constitution).The regulation of specific or statutory compensatory powers does not mean that the constitutional guarantee requires them to be operative. The compensatory duty emanates directly from the constitutional guarantee. The reason for its explicit regulation is due to the need to incorporate greater normative precision in particular cases. Therefore, the duty to pay applies even in the absence of specific compensatory powers, although on the ground of State liability for failure to pay.Formal equality in the imposition of a public burdens can also lead to material inequality for those who have had their legitimate expectations frustrated by the introduction of the burden. Likewise, partial indetermination of the compensatory obligation of Article 19 Nº. 20 does not prevent its enforceability either, when the duty to fix it corresponds to the State debtor. Unjustifiably unequal public burdens can be imposed by means of various powers. They are, inter alia, State acts of public interest that oblige a subject in good faith to give or do something in the performance of a public function; or to bear the deprivation or special limitation of property over tangible or intangible assets, the frustration of protected expectations, the repetition of an encumbrance procedure, and the greater onerousness of a legal duty due to unforeseeable events that cannot be attributed to the parties. Summary:I. INTRODUCTION. II. THE DUTY TO COMPENSATE UNEQUAL PUBLIC BURDENS. III. CRITICISM AND DEFENCE OF THE DUTY TO COMPENSATE UNEQUAL PUBLIC BURDENS. IV. UNJUSTIFIABLY UNEQUAL PUBLIC INTEREST BURDENS. 1. State act that obliges a bona fide person to give or do something for the performance of a public function. 2. State act that produces a special deprivation of ownership of tangible or intangible property. 3. State act limiting ownership that frustrates a legitimate expectation of intangibility of ownership. 4. State act repealing a law, revoking or invalidating an administrative decision that frustrates a legitimate expectation of favourable stability of a public legal relationship. 5. Act of the prince that frustrates the protected expectation of favourable stability of an onerous legal relationship. 6. State act that entails risks of overburdening or damage due to supervening events that are non-attributable to any of the parties of an onerous public legal relationship. 8. State act that reiterates an encumbrance procedure that has expired due to preclusion or breach attributable to the authority. I. INTRODUCTION. II. THE DUTY TO COMPENSATE UNEQUAL PUBLIC BURDENS. III. CRITICISM AND DEFENCE OF THE DUTY TO COMPENSATE UNEQUAL PUBLIC BURDENS. IV. UNJUSTIFIABLY UNEQUAL PUBLIC INTEREST BURDENS. V. CONCLUSION.

Almost 75 years ago the constituent legislator placed the notion of work at the basis of the architecture of the Italian Republic. The formula contained in Art. 1 of the 1947 Constitution was the fruit of an intense parliamentary debate. It involved illustrious personalities from that moment of Italian history, political subjects with different ideological backgrounds who were able to recognize and enhance the very profound link between the notion of work and the principle of human dignity.This study examines this inescapable link, its meaning and scope in the context of the Italian Constitution. To do so, the author attempts to reconstruct the concept of dignity, drawing on the most consolidated doctrinal and jurisprudential theses, to define this constitutional principle as the expression of a legal duty-being linked to the real context of the life of a human person, to its physical, organic, and spiritual dimension.The labor aspect constitutes a significant aspect of that existence and is, therefore, a central factor that affects the achievement of a dignified existence: through work, each individual can express his capacity to be, develop his personality fully and freely and, thus, achieve those conditions that allow him to be the master of his present and the architect of his own future. For these same reasons, the constitutional notion of work also concerns the political dimension of a democratic system: through work, configured as a duty to contribute to progress and collective well-being, the premises are provided so that each member of our social groups can exercise, in freedom and conscience, that set of rights and duties that are a consequence of the condition of citizenship. For all these reasons, the logical sequence that links the notion of work with that of dignity, produces further effects that have to do with the strengthening of values that are fundamental to a constitutional model: freedom, participation, and democracy.However, it should not be forgotten that the notion of work capable of producing such important effects can only be that which enjoys the protection of certain constitutional guarantees.The social, political, and economic reality that Italy is going through is radically different from that of the late 1940s. The present day brings us back to existential scenarios that testify to a weakening of those clauses established to guarantee the dignity of the working person. Therefore, today more than ever, it is necessary to reflect once again on the constitutional notion of work that still survives in the formula enshrined in Art. 1 of the Italian Constitution. Summary:I. FOREWORD: WORK, DIGNITY, AND DEMOCRACY. II. «UNA REPUBBLICA DEMOCRATICA, FONDATA SUL LAVORO». ART. 1 OF THE ITALIAN CONSTITUTION BETWEEN TELEOLOGICAL AND ORGANIZATIONAL PRINCIPLES. III. THE NOTIONS OF HUMAN DIGNITY AND WORK AS FOUNDATIONS OF THE ITALIAN REPUBLIC. IV. «IL LAVORO DEGNO». CONSTITUTIONAL GUARANTEES AS A PROTECTION OF THE DIGNITY OF WORK. V. CONCLUSIONS. THINKING «THE IMPOSIBLE».

This paper adopts as its starting hypothesis the positive impact of the Drittwirkung doctrine as the basis of an expanding European constitutionalism aiming at strengthening the multi-level protection of fundamental rights. In this respect, recent developments in this field in European law are examined, particularly in the case-law of the European Courts in Strasbourg (Council of Europe) and Luxembourg (European Union). Thus, the first part recalls the way in which this German doctrine has been imported and consolidated in comparative constitutionalism, including the Spanish Constitutional Jurisdiction since its first rulings. The second part analyses the direct horizontal effect in the evolutive case-law of the European Court of Human Rights, mainly through the notion of positive obligation. The third part criticises the restrictive approach of the European Court of Justice to the Drittwirkung theory. The last part scrutinises recent European case-law developments on Drittwirkung by arguing that the restrictions arising from the respective human rights instruments (material scope of the European Convention on Human Rights, distribution of competences between the EU and Member States, or the distinction between principles and rights in the Charter of Fundamental Rights) should not be an obstacle, on the one hand, to reconsider the rejection of the horizontal direct effect of some rights (especially the Court of Justice in relation to the social rights recognised in the EU Charter) and, on the other hand, to improve synergies between the two European Courts, without forgetting the interaction with other European and international human rights standards in the search for the best attainable solution for human dignity. Ultimately, modern trends in multi-level constitutionalism mean that Drittwirkung and favour libertatis/pro personae principle must go hand in hand. Summary:1. INTRODUCTION: THE POTENTIAL OF THE DRITTWIRKUNG AS A CONSTITUTIONAL PROCEDURAL TECHNIQUE FOR THE PROTECTION OF FUNDAMENTAL RIGHTS. 2. DEVELOPMENTS WITHIN THE COUNCIL OF EUROPE: THE EVOLVING CASE LAW OF THE ECTHR, FROM POSITIVE OBLIGATIONS TO THE ENHANCEMENT OF DIGNITY. 2.1. The classic enabling basis of family life and its evolving dimensions. 2.2. The classic horizontality of labour relations and its evolving aspects in the world of work. 2.3. Recent profiles of respect for dignity through horizontal effectiveness in the face of discrimination and vulnerability in the family, work and more broadly social spheres. 3. DEVELOPMENTS IN THE EUROPEAN UNION: THE OSCILLATING CASE-LAW OF THE COURT OF JUSTICE, BETWEEN PRINCIPLES AND FUNDAMENTAL RIGHTS: 3.1. The classic and the new elements of horizontality in anti-discrimination matters as well as the civil and political aspect of fundamental rights. 3.2. Recent developments in the socio-labour field. 4. CONCLUSIONS: INTERPRETATIVE SYNERGIES IN FAVOUR OF THE PROTECTION OF FUNDAMENTAL RIGHTS IN HORIZONTAL RELATIONS.

The transposition of Directive 2019/790 on copyright in the digital single market into national legislation has once again shaken the European scenario, and especially the Spanish one, in the dispute that the US company has been holding with publishers, who claim remuneration in terms of copyright for linking to protected content. In our country, Royal Decree-Law 24/2021 transposing the Directive has meant the repeal of the so-called AEDE canon, eliminating the inalienability of its collection and allowing its individual management in an attempt to adapt copyright to the digital environment and correct market imbalances. Along these lines we reflect on the controversial adaptation of copyright to the digital environment and the dispute with Google in various European countries, with special attention to Spain; the positions of the two specific actors in the digital law market — news aggregators or media monitoring services and press publishers — are analysed; and we examined the recognition of the related right in favour of press publishers against online uses of their publications by digital content aggregators, one of the most debated aspects of the copyright model in Directive 2019/790. Summary:1. INTRODUCTION: THE PRESS AND ITS ADAPTATION TO THE DIGITAL ENVIRONMENT. 2. THE BATTLE FOR COPYRIGHT: GOOGLE NEWS. 2.1. Regulatory background: the reform of Spanish intellectual property legislation in 2014. 2.2. Arguments for and against the payment of royalties. 3. THE TRANSPOSITION OF DIRECTIVE (EU) 2019/790 INTO THE SPANISH LEGAL FRAMEWORK: KEY POINTS OF THE REFORM OF INTELLECTUAL PROPERTY LAW. 4. THE PAYMENT OF TECHNOLOGY COMPANIES FOR CONTENT: THE END OF THE CONFLICT BETWEEN PRESS PUBLISHERS AND LARGE PLATFORMS? 4.1. The reality of the negotiation: individual and confidential agreements. 4.2. The right of journalists to adequate remuneration. 5. FINAL REFLECTIONS.

The majority constitutional dogmatic and the jurisprudence of the Constitutional Court have consistently affirmed that the inapplicability action implies a concrete control of the constitutionality of the laws. In the opinion of this dogmatic and jurisprudence, this control does not examine the constitutionality of the legal precept, but controls whether its application in a specific case produces unconstitutional effects.However, certain vices of constitutionality are original and affect the constitutionality of the legal norm. In which case, they would not be controllable in this way. However, subsequent control has been exercised with respect to them through the action of inapplicability.In this sense, the premise that guides this work is the following: the constitutional process in course opens a space to differentiate two types of exams in the field of inapplicability action. A control of the unconstitutional effects that a legal precept, not affected by a vice of unconstitutionality, generates by its application in a specific judicial management. And another, of a legal precept that will necessarily produce unconstitutional effects because it is unconstitutional. The first leads to concrete control and the second to abstract control. But above all, it is an opportunity to separate the current action of inapplicability into two actions, one of concrete control that resolves the cases in which a legal precept, applicable in a pending procedure, produces unconstitutional effects, and another action that implies an abstract control of the vices of unconstitutionality that affect a norm. Summary:1. INTRODUCTION. 2. PREMISE, METHODOLOGY AND PLAN OF ANALYSIS. 3. THE PHYSIOGNOMY OF THE ACTION OF INAPPLICABILITY ACCORDING TO THE CONSTITUTIONAL COURT JURISPRUDENCE. 4. THE QUESTIONING BY CERTAIN AUTHORS OF THE SPECIFIC CHARACTER OF THE ACTION OF INAPPLICABILITY. 5. THE VICES OF UNCONSTITUTIONALITY AND ABSTRACT CONTROL. 5.1 The problem. 5.2. Practices of the Constitutional Court practice, regarding the vices of unconstitutionality. 6. PRELIMINARY CONCLUSIONS ON THE APPROVED TEXT.

This text gives account of the origins and definition of the Popular Legislative Initiative (PLI), as well as its characteristics and implementation at international level. Through a comparative study of this constitutional mechanism, a methodology is proposed for its better legal and practical adaptation. The analysis is developed around what can be considered the three fundamental axes of the regulation of the PLI: substantial elements (subjects and topics), formalities (signatures and sources of technical / economic support) and parliamentary treatment. This scheme is transferred to the Spanish model in order to complete the required reforms to enjoy of effective functionality. This legal analysis is complemented with the desiderata expressed by the political parties in Spain about the PLI. All this considering that a properly configured PLI should enjoy the capacity to empower the proponent citizens and the legislators who —in dialogue with those— must decide on the proposals. This, from its consideration as mechanism called to promote democratic dialogue between citizens and political representation, avoiding the effects of rupture and confrontation of direct mechanisms such as referendums and without losing sight of the importance of political will in order to grant its validity. Summary:I. INTRODUCTION. II. DEFINITION, ORIGIN AND SCOPE OF THE PLI. III. METHODOLOGICAL ANALYSIS OF THE PLI. 1. Substantial dimension. a) Topics. b) Subjects. 2. Formal dimension. a) Formulated character. b) Signatures. c) Mechanisms of technical and/or financial support. d) The new technologies. 3. Parliamentary dimension. IV. THE PLI IN THE SPANISH MODEL: REGULATION AND PRACTICE. 1. The regulation of the PLI in Spain. a) Substantial dimension. b) Formal dimension. c) Parliamentary dimension. 2. The practice of the PLI in Spain. V. PERSPECTIVES FOR THE PLI IN SPAIN: THE PROPOSALS OF THE POLITICAL PARTIES. VI. CONCLUSIONS.

The approval of Organic Law 3/2021, of 24 March, regulating euthanasia, imposes on all healthcare centres the duty to provide assistance in dying to people who request it. At the same time, the Law does not recognise the right of institutions to conscientious objection. This article considers whether such an exclusion is consistent with the Spanish constitutional framework. To this end, the paper (1) analyses the legal framework of the right to conscientious objection in Spain; (2) discusses the arguments for and against institutional objection; and (3) makes some clarifications regarding the right to object of public sector entities and private legal entities that indirectly provide public services in the field of health. The article concludes by pointing out that admitting institutional conscientious objection is the option most in line with the current Spanish constitutional framework. Summary:I. INTRODUCTION. II. THE RIGHT TO CONSCIENTIOUS OBJECTION AND ITS RECOGNITION IN SPAIN. III. THE INSTITUTIONAL OWNERSHIP OF THE RIGHT TO CONSCIENTIOUS OBJECTION. IV. A NOTE ON CONSCIENTIOUS OBJECTION BY LEGAL-PUBLIC PERSONS AND PUBLIC SERVICE CONCESSIONAIRES. V. CONCLUSIONS.

The requirement of the COVID-19 certificate by the regional Ministries of Health generalised in December 2021 to access leisure, catering and socio-healthcare establishments as an instrument to contain the pandemic and encourage vaccination limits, among others, the following fundamental rights: equality, physical integrity, privacy, freedom of movement and free enterprise. Given its novelty the literature on the topic is still in its infancy. This work analyses the legal basis of this instrument to establish such limitations, its proportionality and the constitutionality of the measure as a nudge to promote vaccination taking into account its real effectiveness and safety. The study concludes evaluating the general COVID-19 vaccination campaign’s constitutionality. Summary:I. INTRODUCTION II. PROBLEMS RAISED BY THE CERTIFICATE. III. THE LEGAL AUTHORISATION INVOKED IN THE LIGHT OF CONSTITUTIONAL JURISPRUDENCE. IV. PROPORTIONALITY OF INTERFERENCE. V. VACCINE-NUDGING.