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Democrazia e Sicurezza – Democracy and Security Review
Roma Tre Law Review
Open Data & Open Research Data
Lo stato di emergenza e la (irrinunciabile) saldezza dei valori di libertà di un ordinamento democratico
The state of emergency, be it strictly military character, or connected with the outburst of indiscriminate violent acts of terrorism, puts legal systems, inspired by the basic principles of modern constitutionalism, in the difficult position to provide tools for prevention and / or repression, that ensure an acceptable level of safety and do not compromise, irreparably, the hard core of the values enshrined in democratic constitutions. This implies the need to identify a priori appropriate bodies to approve the state of siege and involves the logical corollary to define the official and substantial limits, within which the (temporary) suspension of fundamental human rights can possibly be arranged, in order to find the right balance including the need to preserve the immanence of free institutions, without, at the same time disclaiming and / or mortifying the axiological foundations on which they themselves are ruled, in view of the affirmation of a political/constitutional settlement directed to the sense of protection and promotion (even towards enemies) of the individual’s inviolable rights.
In the Fight Against Terrorism, Does Article 15 of the ECHR Constitute an Effective Limitation to States’ Power to Derogate From Their Human Rights Obligations?
This paper will focus on Article 15 of the European Convention on Human Rights (ECHR), which allows national authorities to declare a state of emergency and, consequently, to derogate from certain human rights obligations. It is worth observing that it is in time of emergency that there is a greater risk for human rights violation, due to the possible abuse of powers by states. For this reason, it will be illustrated which rights can be derogated from and when a derogation is deemed to be valid in the light of Article 15 ECHR. The case‐law of the European Court will show that only on very few occasions states have relied on this provision. However, when the derogation power has been invoked, the Court has given a wide margin of appreciation to contracting states when assessing the compliance with the requirements under Article 15.
This approach has been criticised for being too deferential and for weakening the Court’s authoritative position vis‐à‐vis national governments. Although Article 15 ECHR should limit states’ right to derogate, in practice the wide discretion left to them nullifies the effectiveness of this provision.
L’esperienza spagnola: dal terrorismo interno alla minaccia globale. Strumenti di difesa di una democrazia “banco di prova”
Isabella Lo Presti
The Spanish System represents a minor reality in a context in which Western European Democracies have opted to exclude from their Constitutions the preventive provision of the so‐called state of emergency and the specific case of terrorism. After all, the events that affected Spain are well‐known. Since many years, Spain has been active in the conflict against the Basque Terrorism and the democratic dilemmas, because of the presence in the Parliament of parties linked to the terrorist group Eta. And exactly the well‐known Ley organic sobre los partidos políticos 6/2002, which outlawed the Batasuna Party and other political organizations connected to the Eta group.
Therefore, in the Spanish System the article 55, II clause, as well as the legislation related to the political parties tagged as anti‐system, represent the fundamental profiles of peculiarity in the field of anti‐terrorism legislation. Nevertheless, through this article we will try to demonstrate that the distinctive characteristic in the Spanish discipline does not lie on the provision of extraordinary measures in the Constitution. Instead, the main point is that this phenomenon has been disciplined by a legislation deliberately “fabricated” for a specific subject: Eta.
La costituzionalizzazione dell’emergenza in Italia
In many Western States where a special legislation against terrorism has been enforced, the judges have reacted by reducing the impact of those laws limiting constitutional freedoms. On the contrary, in Italy, often the judges apply such laws in an extensive way, without monitoring the respect of human rights and freedoms of individuals. This paper aims to illustrate which are and how are applied in courtrooms the main legal instruments to counter terrorism, so as to identify the most critical aspects which risk being in contrast with the constitutional order. In particular, changes of the criminal, administrative and penitentiary systems and their applications in court are analyzed.
La armonización penal en materia de terrorismo como ejemplo de irracionalidad político-criminal. Referencias al caso español
Noelia Corral Maraver
For decades the terrorist phenomenon has generated interest of the supranational bodies. Thus, we can find many treaties and conventions on combating terrorism both within the United Nations and the Council of Europe. The European Union is also involved in this struggle, which only became a real priority issue after the terrorist attacks of 11‐S 2001 in the US. However, the EU approach to terrorism is improvised and show scant regard for fundamental rights and legal guarantees. The European criminal law are changing the Member States´ criminal systems in a harsher way. In the Spanish case, the transposition has been carried out by the Laws 5/2010 and 2/2015, that are not consistent with such fundamental rights and legal guarantees.
Tra diritti fondamentali e smart sanctions: l’interessante caso degli individui e delle società wrongfully listed
As per article 41 of the United Nations Charter, the Security Council may adopt sanctions to prevent States or individuals and entities from threatening international peace and security. States and regional organizations, such as the European Union, may as well adopt unilateral sanctions. The frequent use of targeted sanctions, especially in the fight against terrorism, has caused progressive concerns of potential human rights abuses, especially violations of the principle of due process. One of the least analysed topics, in this context, is the problem of wrongfully listed individuals and entities, and their right to a fair compensation for the damage suffered. This issue has become the object of an evolutionary jurisprudence of European courts. Furthermore, the Security Council has recently adopted resolution no. 2253, which specifically analyses, for the first time, the issue of wrongfully listed individuals and entities.
Sicurezza e libertà: margini e orizzonti di (buon) senso, con uno sguardo comparato
Security and freedom are often in conflict (this can be observed also comparing the first contractual theories of natural law, proposed by Hobbes and Locke): this happens more frequently in a multicultural society. This paper focuses on some aspects related to this conflict. First of all, positive and negative consequences of establishing or not establishing (written) rules about declaring states of emergency are analyzed. Then the role of the concepts of “margin” (as a border or as a margin of appreciation) and “common sense” is investigated, taking into consideration some different national experiences (state of emergency not provided by Italian Constitution, rules about declaring states of emergency and banning political parties associated with terrorism in Spain). Particular attention is paid to conflicts between security and freedom about the use of cultural and religious symbols, like Muslim veils and the burqini, the swimming costume worn by some Muslim women and substantially banned (July‐August 2016) by some French mayors, but then the Conseil d’Etat suspended the ban. The last part of the paper tries to suggest a way to overcome fear of foreigners – even in these bloody periods because of many terrorist attacks – through a correct intercultural and dialogic approach, in order to avoid serious misunderstandings.
The effectiveness of the social sciences, in the understanding the todayʹs intercultural conflicts, can improve studying the phenomenon of the shamanism, that has assumed an increasing importance both to national level and international. The apprentices are, in fact, in contact with mythical‐ritual complexes of intercultural nature, thanks to which they can acquire connected ability to the dialogue among different cultures. They can also build trans‐cultural nets and flows.
Spread in the Usa, in Canada and in other countries of western culture, these practices have acquired visibility in Italy from the beginning of this century. A sociological research in progress has begun to explore this particular vital world, with the method of the grounded theory, with the purpose to reconstruct the lived spirituality and the trials of the shamanic activities.
From the analysis of the data, the story of a deep cultural transition emerges in action in the Country. A radical change of the sensibility and the mentality is upcoming, that as trans‐cultural metànoia can be framed. Putting in communication different worlds, and building transcultural experiences, observed realities develop an important function in the social body. They furnish philosophical and emotional support to the people and the communities, that will be able of resistance to the mainstream of the dominant culture and of the unique thought.
La fenice nera della democrazia: per una fenomenologia della tortura
Torture is an extreme manifestation of the inhumanity of human beings. A cruel practice that we believed had disappeared because it had been condemned to be buried forever in the dark depths of history. However, in reality, as evidenced by Donatella Di Cesare in her recent book entitled Tortura, it has remained a constant presence in human history that threatens to trample on the rights and dignity of human beings while undermining the pillars of our democracies.