The current legal analysis on the blockchain technology focuses on the financial regulation of the cryptocurrencies and little investigation is done in the area of privacy regulation of this technology.
This research shows that the blockchains are much more nuanced than could be served by a one-size fits all approach from regulatory perspective. The GDPR implications for the types of blockchains differ. It is possible to achieve compliance with the GDPR if the authorities adopt a nuanced approach and make reliable advance assessments on specific features are afforded by this technology. In that regard, innovators ought to be assisted by the European Data Protection Supervisor, Article 29 Working Party and local Data Protection Authorities, in particular, on the question of recognition of the data subject as her own controller by way of implementing specific, electronic identity management techniques on top of blockchains. The utility of the blockchains depend on the GDPR regulators to understand and accept that this technological architecture is best regulated by other technological tools which establish the data subject’s agency on her personal data.
The blockchain technology has brought a new tool which can change the way we make legal contracts. This tool is called “smart contracts”. Smart contracts are self-executing contracts which decrease the human intervention and the need for intermediaries for the execution of a contract. This thesis discusses whether smart contracts can really replace the traditional way we conclude legal contracts by comparing them with classic legal contracts based on the Principles of European Contract Law. It introduces a technical background about the blockchain and smart contract technology and questions whether smart contracts can be formed, valid, and executed as legal contracts. The thesis presents the legal challenges of smart contracts and finally concludes that smart contracts can and will replace the traditional way of making legal contracts in the distant future.
This article examines data protection on blockchains and other forms of distributed ledger technology. Whereas the General Data Protection Regulation was fashioned for centralised methods of data collection, storage and processing, blockchains decentralise each of these processes. We engage with the resulting tensions in the below analysis.
The Constitution of the Republic of Serbia from 2006. has been the subject of sharp criticism of many legal experts. The way it was written, adopted and approved in the referendum, for sure it can’t be a praiseworthy example of legality and, with some of its controversial solutions, it inevitably indicates the necessity to be altered. These problematic Constitutional provisions are the subject of this article. Starting from the very preamble of the Constitution, unnecessarily discriminating position between the autonomous provinces, politicizing and the non-coexistence of the Constitutional text could be clearly observed. The Constitutional attack on the freedom of parliamentary mandate has been causing constant and numerous criticism of domestic and foreign public but at no time it did not make most of the parties hesitate to use their unfairly acquired right. Decentralization always causes a live debate, proposing various models and modalities, but only few of them could be possibly finalized by a general consensus. Serbian firm commitment to become a member of the European Union, at one point calls for a constitutional revision which would transfer the execution of certain part of sovereign rights to that supra-national organization. We could only hope that the political elite will not use any future reform to violate guaranteed constitutional rights, as was the case with the reform of the judiciary. Amending the Constitution has been always a difficult and time consuming process, hence the sooner the amending starts, the more likely are the chances to have it completed in democratic and tolerant atmosphere for the benefit of all citizens of Serbia.
This article examines the use of Bitcoin in money remittance markets as a specific illustration of wider emerging regulatory issues relating to the use of cryptocurrencies. While there are many conceivable benefits of using Bitcoin for remittances, there are also many risks for users of these remittance services. This article adopts a user perspective to look at what the major concerns are and what existing protections may be available to persons using cryptocurrencies under New Zealand law through the example of using Bitcoin for remittance purposes. The article then summarises approaches taken by other jurisdictions before suggesting a specific regulatory approach to cryptocurrencies that New Zealand should consider adopting.
The European Court of Human Rights (ECtHR) shows increasing sensitivity to issues of nondiscrimination and―as Carmelo Danisi rightly notes in his article1―the scope of the prohibition of discrimination contained in article 14 of the European Convention of Human Rights (ECHR) has definitely been extended. Not only is the number of cases decided on the grounds (or also on the grounds) of the principle of nondiscrimination growing, but―more significantly―the class of cases based on the aforementioned provision reveals that whenever a highly controversial, delicate, or questionable issue is brought before the Court, the principle of nondiscrimination is always reserved a major role in the judicial reasoning. Undoubtedly, the ECtHR is adopting a more proactive role in the fight against any kind of discrimination, and this new attitude is in part influenced by the EU institutions and other international bodies. The survey of the European jurisprudence provided by Danisi presents a self-confident Court applying severe standards even at the cost of narrowing the margin of appreciation that the ECHR accords to member states. The only notable exception is the case of same-sex marriages. On the basis of the account offered by Danisi’s article, I would like to inquire into the reasons for the expanding role of nondiscrimination in the ECtHR’s case law. I will argue that this expansion is intertwined with the liberal ideal of protecting everybody’s right to the freedom of choice on a neutral basis. Considered in this light, the case law of the ECtHR appears to be more problematic than in the picture portrayed by Danisi. Sometimes the Court’s attitude seems inconsistent and leads to unpredictable results. However, it is more important to notice that nondiscrimination judgments intrinsically lack the neutrality that is often ascribed to them. Many good reasons account for the prominence of nondiscrimination in contemporary European jurisprudence. One of these, and not a minor one, is related to the perception that prima facie nondiscrimination is a commonly shared, non-negotiable principle because it provides a neutral ground on which to settle the most hotly debated controversies of our postmodern society: gender issues, reproductive rights, bioethical problems, the notion and role of the family, law and religion, the protection of ethnic minorities in multicultural contexts, and so on. No matter what one’s personal opinion regarding these disputes may be, the solution should not result in the discrimination of any group. In a way, when a debate touches on the point of nondiscrimination, the tone changes from a judgmental to a neutral one. Whereas controversies about rights and their limitations require difficult balance among competing values and are deeply divisive, nondiscrimination is perceived as a common, undisputed goal. A good example showing the “neutralizing effect” of nondiscrimination is S.H. v. Austria,2 a recent case regarding medically assisted procreation. The case has its origin in an aspects of Austrian legislation which limits access to techniques of artificial procreation that involve the use of ova and sperm from donors. The reasons for these restrictions―as explained by the Austrian institutions and shared by other European states―were based on public values and interests competing with the individual desire to have a child, such as the protection of the biological identity of the children, the prevention of eugenic reproduction, the exploitation of women, and the commercialization of maternity. The European Court does not enter into a discussion about the legitimacy and the justification of the limitations imposed on individual rights by the national legislation. Instead, it takes a different approach: if the right to privacy encompasses “the right of a couple to conceive a child and to make use of medically assisted procreation for that end,” it must be guaranteed without discrimination, the Court says. Therefore, following the Court’s reasoning, all restrictions on medically assisted procreation should be banned because every regulation may have the effect of denying some couples the possibility of having a baby, ultimately amounting to discrimination. The issue that was brought before the Court was a veritable conundrum and did not have any easy solution. However, no matter how disputable any alternative option would be, in this case, it was clear that the arguments based on nondiscrimination worked as a discussion stopper, thanks to its aura of neutrality. As a matter of fact, according to liberal ideals, law is to be neutral in order for all personal choices to be allowed and respected. The liberal ideal wants each person to decide for oneself what one values and how one is going to live one’s life in the light of these values; one must be entitled to a set of “deliberative freedoms,” allowing one to live following one’s personal preferences. Nondiscrimination is a prominent tool for securing these deliberative freedoms3: when nondiscrimination is respected, everybody can freely accede to one of the options at stake, regardless of color, sex, race, or preferences. Liberal ideals affirm that people should not have to factor certain traits of their identity into their deliberations. Nondiscrimination is essential to the liberal project because it urges the removal of all hindrances to free choice. Although in the past liberty and equality were considered competing values, in the current postmodern liberal society freedom of choice and nondiscrimination reinforce one another: they are the twin cornerstones of contemporary legal order. Their intimate kinship is mirrored by the frequent use, in the cases brought before the ECtHR, of article 14 of the ECHR on nondiscrimination in conjunction with article 8 on the right to privacy―the very origin of the right to free choice. The interaction between nondiscrimination and freedom of choice has the ambition of squaring the circle by protecting diversity without creating inequality: differences in reality should not matter in the legal realm because nondiscrimination aims at correcting reality.4 Seen through the lens of nondiscrimination, all differences become indifferent before the law. In this perspective, nondiscrimination has a neutralizing effect; it serves the aspiration of liberal society to neutrality.5 I would like to put to the test whether or not the principle of nondiscrimination maintains its promise of neutrality in the practice of the ECtHR by looking at the examples examined by Danisi and other scholars. In the overview of the cases I will focus solely on the issue of neutrality: I am not interested here in discussing the merits of the decisions. Whether or not I agree with the results of the decisions taken into consideration is not relevant to the purpose of the present discussion. According to Danisi’s narrative, the ECtHR is increasingly developing the principle of nondiscrimination, with the relevant exception of same-sex marriages. At first sight, all recent evolution in European jurisprudence fits into Danisi’s analysis, but on closer examination the ECtHR’s case law appears to be more “unprincipled.” It is true that in numerous recent cases discrimination is given prominent attention; however, it seems occasionally to be overshadowed by other prevalent concerns, depending on the factual situation and on a case by case basis. For example, in Opuz v. Turkey,6 a case concerning domestic violence in Turkey, the discrimination issue is intentionally brought into the spotlight by the Court. The decision condemns Turkey for violating articles 2 and 3 of the ECHR because the national authorities failed to take adequate measures to prevent an aggressor from carrying out his threats against the physical integrity and the life of the victims. The Court could have stopped there, as it happens in many cases where the violation of a plurality of rights and of articles of the Convention is alleged by the plaintiffs. In the Opuz case, however, the Court went on to examine the issue of nondiscrimination and reiterated the condemnation of Turkey also on the basis of article 14. The result of the decision in this specific case was not affected by the Court’s further statement, because the violation of the right to life and personal integrity is of paramount gravity; but the insistence on the non discrimination issue gave the Court the opportunity to draw attention to the status of women in Turkey and to the many forms of discrimination to which they are subjected. To put it bluntly: the Court wanted to make a case against the discrimination of women in that society. Let us now consider the following case dealing with discrimination on the grounds of sexual orientation. Santos Couto v. Portugal7 is a decision concerning a man convicted for homosexual relations with adolescents. Since the Portuguese criminal code has two different provisions for heterosexual and homosexual relations with adolescents, the second being more severe than the first, the applicant argued that his conviction was discriminatory and based on his sexual orientation. Notwithstanding a relevant precedent,8 in which a request similar to that filed by the applicant was granted, the ECtHR issued a finding of nonviolation. Focusing on the concrete circumstances of the case, the Court showed that the man would have been convicted even on the narrower grounds of the provision envisaged for heterosexuals. Consequently, in this case, his sexual orientation was not considered a relevant feature to be taken into account. By contrast, in Kozak v. Poland,9 as Danisi says, the European Court attached great importance to the argument of sexual orientation. Despite the unclear nature and duration of the relationship between the two partners, in the Court’s opinion “the relevant element was not the question of the applicant’s residence in the flat or the emotional, economic or other quality of his relationship with [his partner] but the homosexual nature of that relationship.” Had the Court used the same “test of resistance” that was used in the previous case―i.e., had the Court inquired whether or not in that particular case the right of succession to the tenancy would have been denied even if the applicant had been in a heterosexual relationship―the result might have been different. At the same time, in the Santos Couto case, should the Court have stressed that the Portuguese criminal code had stricter rules applying to homosexual relations with minors, the decision might have been the opposite. Not only is the nondiscrimination clause susceptible to being applied inconsistently by judges, but, in most cases, the very structure of the discrimination test as such is responsible for the unpredictable outcomes of the controversies. Nondiscrimination is one of the most valuable principles of our legal civilization, one which has significantly contributed to advancing the legal treatment of vulnerable groups and to the redressing of wrongs which occurred in the past; and yet it is not, and cannot be, a neutral principle. As a matter of fact, judging nondiscrimination implies drawing a comparison between different persons and situations. Comparing people is not a mechanical activity but requires the highlighting of a specific relevant feature which has to be taken into consideration for the comparison. The trouble with determining nondiscrimination is that no two people are alike in every respect and, at the same time, all people are alike in some respect. Consequently, statements of nondiscrimination entail comparisons of two persons by reference to some criteria that determine the relevant aspect in which those persons are alike or different. The choice of the “relevant feature of comparison” governs the outcome of the judgment. Let us return to the case of Orsus v. Croatia,10 examined by Danisi, regarding Roma students who complained about being assigned to separate classes.11 Were they assigned to special classes because they lacked a sufficient command of Croatian, as the First Section decided in its judgment of July 17, 2008?12 Or were they victims of racial discrimination, as the Grand Chamber eventually decided? The choice of the comparator determined the results of the two decisions. Who are the “like” students to be compared with in this case? If the linguistic skills were the relevant feature to be taken into account, then the result would be a finding of nonviolation; if, instead, the question of race were to prevail in the analysis, then the Court would reach the opposite result. The hazy character of nondiscrimination judgments is particularly salient in cases concerning the status of the family, same-sex couples, and other types of relationship, which have frequently been brought to the attention of courts in recent years.13 Most of them involve homosexual couples claiming the same rights and privileges as those accorded to married couples. According to Schalk and Kopf v. Austria,14 European states are not obliged to extend marriage license to same-sex couples, since article 12 of the ECHR provides men and women with the right to marry and to found a family. Nevertheless, the Court says that the notion of “family life” under article 8 applies to same-sex and other de facto unions. Consequently, different forms of protection are considered consistent with the European Convention. In many European countries, but not in all of them, registered partnerships have gradually extended to same-sex couples a certain number of benefits and privileges that used to be limited to married couples. Differences between marriage and union partnership can be acceptable, says the Court, especially as far as parental rights are concerned. Moreover, at the opposite ends of the spectrum, some countries recognize same-sex marriage while others envisage neither marriage nor legal partnership for same-sex couples. Is this diversity in the domain of family life a matter of nondiscrimination, or does it have to do with the difference in values that each society attaches to marriage and family ties? The ambivalence of these controversies is made clear by an awkward request brought before the Court in the case of Burden v. United Kingdom.15 Two aged sisters, having lived together their whole life, claimed the same inheritance tax exemptions as married and civil partnership couples. They asserted to be in an analogous position to married couples or civil union partners, and affirmed that the different, unfavorable treatment applied to their situation was discriminatory. The ECtHR, of course, rejected their request. What is interesting for the purpose of our discussion is the Court’s reasoning. The Fourth Section16 justified tax exemption and its scope by evoking the peculiar value that societies attach to marriage and which, in many cases, they extend to civil partnerships: national legislation can legitimately limit fiscal benefits to the relationships most valued in that society. The Grand Chamber, on the other hand, focused on the analogy and differences between two siblings cohabiting for many years and married or union registered couples. The outcome was the same, but, in my view, the legal arguments in the reasoning of the Grand Chamber were weaker and ultimately concealed the real question under debate, namely the interests pursued by the legislature by means of the fiscal policy. It is not difficult to foresee that the Court will be called on again very soon to take sides with respect to different attitudes adopted by national legislatures towards family life, and the question to ask is whether nondiscrimination is the only appropriate grounds on which to settle these disputes. The trouble is that in these cases nondiscrimination is no more neutral than rights-oriented arguments, and it might end up concealing the value choices made. The principle of nondiscrimination proves to be a flexible and fluid benchmark whose shape derives, as we have seen in this quick overview, from the rights at stake and the class of the rights holders involved, the factual circumstances of the case, and the social and political background. In many cases discrimination assessments involve value choices to no lesser extent than any other decision concerning the scope, content, and limitations of rights. If this is true, some consequences should be taken into account by the Court. These include: (a) The burden of proof: a widespread bias about nondiscrimination was pointed out years ago by Isaiah Berlin: “the assumption is that uniformity, regularity, similarity, symmetry … need not be specially accounted for, whereas differences, unsystematic behavior, change in conduct, need explanation and as a rule, justification.”17 In legal terms, this bias translates into a general presumption in favor of equal treatment: whenever a difference in treatment is to be applied, the burden of proof shifts onto the advocates of the difference―in the cases before the ECtHR, usually onto the defendant government. This presumption, and the consequent shift in the burden of proof, must be questioned if we agree that the weight of the nondiscrimination argument needs to be modulated according to the rights and the rights holders involved in each particular case. (b) The margin of appreciation: as Danisi points out, the expansion of nondiscrimination issues has the effect of constraining the margin of appreciation of Member States to the point of rendering it meaningless. However, nondiscrimination does not necessarily imply uniformity of national legislation, as other experiences demonstrate. It can be plainly said in relation to the system of the European Convention that “the default value is autonomy of political and moral identity [of its members] which requires justification only if purposely abused.”18 This is true in all cases, and the margin of appreciation is not necessarily to be ruled out when nondiscrimination comes into play.
EU administrative law has some specific characters when compared with national administrative law. This is particularly so because of the weak democratic legitimacy of EU rules. EU administrative law however shares a number of developments with national legal orders, such as a general trend to strengthen the judicial review of individual measures, and this especially so when fundamental rights are at stake. When compared with some national legal orders, dialogue seems to be still in an early phase. This is a shame because the political circle linking the decision makers to the People through representative democracy is weak and benefits could had by supplementing it by more closely involving the civil society and the stakeholders. The little in terms of developments we have, however, is enough to confirm the role of law and courts in this different perspective as the tools «to police conditions of access to decision-making networks. A powerful incentive to dialogue for European institutions could however come – in sectors like competition policy – from a possible shift from a French administrative law presumption of legality pattern to a US adversarial adjudication model, the latter substantially imposing on EU institution a burden of proof where before was a duty to give reasons. Taken down from the high throne where traditional continental administrative law has placed it, it makes sense for the Commission to double its efforts to come at some sort of agreements with the undertaking concerned.
In relation with Article 3 of the European Convention of Human Rights (ECHR, from now on), which prohibits torture and inhuman or degrading treatment or punishments, the European Court of Human Rights (ECtHR, from now on) has established there are no exceptions or limitations, no matter what the victim�s actions were. The ECHR has stated that the referred prohibition would be inefficient without an �effective official investigation� in those cases where the existence of torture is reported. The Spanish Constitutional Court has tried to comply thoroughly with the ECtHR�s Judgements. In this sense, we must note the broad and generous interpretation that the Spanish Constitutional Court has made of the prohibition of using proof obtained under torture. In spite of this, Spain suffered a sentence by the ECtHR for this reason in 2004. It involves the case Martinez Sala and others v Spain, Judgment of 2 November 2004. Now then, our Constitutional Court has been consistent with this Judgement of the ECtHR. The cases in which tortures are reported during detention cannot be approached without taking into account the fundamental right at stake, considered in Article 15 of the Spanish Constitution (CE from now on, for its initials in Spanish): right to life and to not suffer torture or inhuman or degrading treatment. This demand of reinforced motivation in judicial sentences which affect the content of an important fundamental right has had great importance in relation with the case of the filing of statement of torture since the STC 224/2007, of 22 October.
This Note proposes such a consistent approach, arguing that courts in international extradition cases should focus on the accused's risk of flight rather than on the presence or absence of specific "special circumstances." Part I briefly discusses the international extradition process and outlines the important societal and individual interests at stake in the bail decision. Part II discusses the origin and evolution of the judicial approaches to bail in international extradition cases and demonstrates the inconsistency in the lower courts' treatment. Part III suggests an approach for making bail decisions in international extradition cases. It argues that the determinative factor in the bail decision should be the accused's risk of flight, not the presence of specific "special circumstances." Part III also shows that the burden of proof in the bail decision is properly on the accused, and it argues that the standard for bail should be more stringent after the accused has been determined extraditable.