Identitätskontrolle (German Edition)
Show synonyms for Leibesvisitation. Send us feedback. Are you missing a word, phrase or translation? Submit a new entry. Compile a new entry. Demand that the practice of subjecting prisoners to full body searches each time they enter or exit their cells cease immediately. Following the big lodging problems for the demonstrators, squats were opened in Nice. The security staff is authorised to conduct body searches.
Eine Dame aus einem Etablissement wurde dort zur Wache genommen und sollte sich einer Leibesvisitation unterziehen. A lady from an establishment was put there to guard and should undergo a body search. In particular, procedures such as identity checks, taking into police custody and body searches — often carried out on the street - should not be carried out solely on the basis of skin colour. As outlined previously, mechanisms — such as local contact points - should be set up to ensure that victims of mistreatment are able to bring complaints, and an independent body should be set up to ensure that such complaints are properly investigated.
The entry has been added to your favourites. You are not signed in. Please sign in or register for free if you want to use this function. An error has occured. Please try again. Thank you! Your message has now been forwarded to the PONS editorial department. No, the person did not appear in person at the trial resulting in the decision.
However, point 2, in which the requesting authority confirms that the person to be extradited did not appear in person at the trial resulting in the decision, was left open. L of 18 July , p. L 81 of 27 March , p. Decisions rendered following a trial at which the person did not appear in person. L 97 of 16 April , p. Legal assistance and transmission of data without request shall not be granted if this would conflict with basic principles of the German legal system.
According to the Higher Regional Court, the information given by the Italian judicial authorities did not provide the necessary certainty that, after his surrender, the complainant would be given the opportunity of a full review of the sentence handed down in his absence by way of a re-examination of the facts relating to the charges and of the ensuing legal consequence. In the opinion of the court, it cannot be inferred from the European arrest warrant that the complainant would be able to achieve this by means of a simple appeal that does not require certain conditions to be met and that does not impose on him the burden of proof.
According to the Higher Regional Court, the extraordinary remedy of retrial under Art. Furthermore, the letter stated [ English translation of the ] quote from the [ German ] translation commissioned in the initial proceedings :. Should the application be granted, a new trial must be held against the convicted person, who will again be summoned by order. The convicted person is assured his right of defence without reservations. An excerpt from this reads as follows [ English translation of the ] quote from the [ German ] translation commissioned in the initial proceedings :.
If a judgment by default, or a penal order, has been issued, the convicted person will, upon application, be granted reinstatement to the time limits for appeal or objection, unless he or she was aware of the proceedings or the order and has voluntarily waived the right to object or appeal. To this end, the judicial authorities will undertake every necessary examination. Furthermore, referring to German legal doctrine, he stated that reinstating him into the position to lodge an appeal was no equivalent to being granted the right to a trial at first instance, of which he had been deprived.
He stated that, normally, no new evidence was heard during the main hearing of the appeal. He claimed that the court would decide on the basis of the case files only, and that the hearing of fresh evidence was only possible in exceptional cases. According to him, the present legal situation did not provide for the hearing of fresh evidence in case of a conviction in absence.
The complainant informed the Higher Regional Court of the content of the relevant Art. Since its entry into force in , sections 1 to 3 of Article CPP have not been amended.go here
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If a party has applied, in the brief of appeal or statement of reasons submitted pursuant to Article section 4, for a new hearing of evidence, which had already been heard during the trial at first instance, or for hearing fresh evidence, the court shall order a new hearing of evidence in the main hearing if it is not in a position to decide the case on the basis of the case file.
If the fresh evidence did not come into existence or was not discovered until after the trial at first instance, the court shall, within the limits provided for in Article section 1, order a new hearing of evidence in the main hearing. The court shall order on its own accord a new hearing of evidence in the main hearing if the court considers it to be indispensable sec. The complainant asserted that, under Art. The complainant also provided the wording of Art. The court shall also order a new hearing of evidence in the main hearing, upon application by the accused who had been absent by default at the trial at the first instance and if he shows that he was unable to appear due to events of a coincidental nature, or force majeure , or because he was not aware of the decree summoning him to appear, provided that he is not responsible for these circumstances or that he has not deliberately evaded taking note of the trial proceedings if the summons to the first instance was served on the defence counsel in the cases provided for in Article , Article section 4 and Article The complainant argued that the provisions on the burden of proof and the burden of production in Art.
According to him, pursuant to these provisions, the convicted person is subject to the burden of proof and of production with regard to the fact that he or she had not been aware of the proceedings. He stated that according to the unanimous jurisprudence of the higher regional courts such legal arrangements constitute an obstacle to extradition. He claimed that it should have been obvious to the court that Art.
The complainant provided the Higher Regional Court with the wording of the decision of the Corte di Cassazione. He claimed that further evidence proving that Art. According to the Higher Regional Court, it could assume that an actually effective legal remedy of reinstatement to the former legal position was available to the complainant, which was dependent upon his application and not subject to the discretion of the Italian judicial authorities.
At the same time, according to the court, a comprehensive review of the sentence rendered in absence was guaranteed. The court based its opinion on the following considerations: that the provision is based upon Art. In the opinion of the court, the opportunity to be heard and being able to defend oneself effectively after becoming aware of the sentence were sufficient. The court was of the opinion that, according to this letter, the complainant would, in case of a reinstatement, be granted the express right to a retrial and a new summons, and he would, without reservations, be assured of his right to defence.
The court considered it therefore unnecessary to obtain a legal opinion on the current legal situation in Italy. CPP , since Art. The complainant claimed that, under Italian criminal procedural law, he would only under very exceptional circumstances have the right to question witnesses for the prosecution or to have them questioned, or to have witnesses for the defence summoned and examined under the same conditions as apply to witnesses for the prosecution, since he bears the burden of proof that he had not been aware of the original proceedings against him at the relevant time.
He claimed that, in addition, it is at the discretion of the judge whether to take fresh evidence or not. It further stated that according to the case-law of the European Court of Human Rights, there was no right to have the trial at first instance repeated if, at the first instance, the sentence had been rendered in absence; rather, according to the court, a new trial before a court of appeal is considered sufficient.
However, the court stated that, even when taking into consideration the objections raised by the complainant, it was unable to discern any such restrictions of competence on the Italian court of appeal with regard to the appeal proceedings now applicable to the complainant. The court stated that, in this respect, in deciding on whether an extradition to another Member State of the European Union is permissible, the specific structure and practice of appeal proceedings under German law could not be taken as the standard to be expected.
In his constitutional complaint, the complainant claims a violation of his fundamental rights under Art. He claims that at no point in time was he aware of investigation proceedings or criminal proceedings being conducted against him in Italy. He further argues that there is no guarantee that after his extradition to Italy, he will be afforded the right to a trial in which the charges against him will be re-examined on fact and in law in his presence.
According to the complainant, the Italian government did not provide a sufficient assurance in this respect. He claims that the letter by the Florence Public Prosecutor General of 7 October does not have the necessary binding effect under international law. According to the complainant, the court failed to avail itself of existing opportunities to obtain information, such as obtaining an expert opinion from the Max Planck Institute for Foreign and International Criminal Law. He reasons that since Art.
According to him, appellate proceedings are conducted solely on the basis of the case file; new evidence is only heard in exceptional cases, which would depend on the complainant being able to prove that he was not aware of the proceedings conducted against him in absence. Furthermore, in his opinion, it would be at the discretion of the judge whether to take new evidence.
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The files of the initial proceedings were available to the Senate. Of the parties entitled to submit statements only the Generalbundesanwalt has submitted a statement. In his view, the constitutional complaint is unfounded. The Generalbundesanwalt further argues that under the Constitution, the Higher Regional Court was not required to further clarify the facts of the case. In his opinion, the fact that the Higher Regional Court trusts the statement of the Florence Public Prosecutor General is constitutionally unobjectionable. He bases his view on the following considerations: Italy is a Member State of the European Union, and as such is bound by the requirements of the European Union Framework Decisions and the European Convention on Human Rights when applying its national law.
Therefore, in his view, the Higher Regional Court could not be expected to assume that Italy would violate the obligations under international law entered into, in particular since this would counteract the principle of mutual recognition, a principle characteristic of the law of the European Union. According to the Generalbundesanwalt , the complainant errs in claiming that the Higher Regional Court inadequately interpreted the rules of Italian criminal procedure law.
In the opinion of the Public Prosecutor General of the Federal Court of Justice, the submissions in the application do not support such interpretation. In addition, the statements of the complainant primarily refer to the provisions on nullity proceedings which were apparently repealed in In the view of the Generalbundesanwalt , this version cannot be interpreted to contain a burden of proof to the detriment of the accused.
In his opinion, the Higher Regional Court, therefore, had no reason to assume that, in a new trial, the complainant would have to prove that he had not been aware of the proceedings in his absence against him. The Generalbundesanwalt states that in view of the assurance given by the Italian authorities, the Higher Regional Court did not have to consider the question whether the new main proceedings against the complainant would be conducted as first instance proceedings or — in case of an unsuccessful application to declare the judgment rendered in absence void — as appellate proceedings.
In his view, this was assured in the statement by the Florence Public Prosecutor General of 7 October under letter d. According to the Generalbundesanwalt , in addition, the constitutional requirements are met if, after his surrender , the complainant is afforded his right to be heard and to effective defence in a trial. In his view, based on the assurance given, the Higher Regional Court was allowed to assume that these minimum requirements would be met. The constitutional complaint is admissible. The possibility that the complainant, after his surrender to Italy, will not be provided with a legal remedy with which he can challenge the sentence rendered in absence in a manner that safeguards his rights of defence that are, under the Basic Law, inalienable and encompassed by the guarantee of human dignity under Art.
If a violation of the guarantee of human dignity is asserted, the Federal Constitutional Court reviews such a serious violation of a fundamental right in the context of the identity review cf. The constitutional complaint is also well-founded. In general, sovereign acts of the European Union and acts of German public authority — to the extent that they are determined by Union law — are, due to the precedence of application of European Union Law Anwendungsvorrang des Unionsrechts , not to be measured against the standard of the fundamental rights enshrined in the Basic Law 1.
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However, the precedence of application of European Union Law is limited by the constitutional principles that are beyond the reach of European integration integrationsfest pursuant to Art. This in particular encompasses the principles contained in Art. It has to be ensured that, also in applying the law of the European Union or legal provisions that originate from German public authority but that are determined by Union law, these principles are guaranteed in every individual case 4.
However, one can only claim a violation of this inalienable core of fundamental rights protection before the Federal Constitutional Court if one submits in a substantiated manner that the dignity of the person is in fact interfered with 5. Pursuant to Art. Uniform application of its law is of central importance for the success of the European Union cf. In this respect, Art. Therefore, through the authorisation to transfer sovereign powers to the European Union — an authorisation provided under Art.
As a rule, the precedence of application of European Union Law also applies with regard to national constitutional law cf. Based on Art. This in particular applies to the legislature at federal and at state level if they transpose secondary or tertiary law without possessing a leeway to design Gestaltungsspielraum cf. In contrast, the legal acts that are issued in using an existing leeway to design are amenable to scrutiny by the Federal Constitutional Court cf.
However, the precedence of application of European Union Law only applies insofar as the Basic Law and the Act of Assent permit or provide for the transfer of sovereign powers cf.
The national order giving effect to Union law at national level Rechtsanwendungsbefehl , contained in the Act of Assent, may only be given within the framework of the applicable constitutional order cf. This is compatible with the principle of sincere cooperation Art.
The constitutional identity is safeguarded by the identity review conducted by the Federal Constitutional Court. Such an act cannot be based on an authorisation under primary law, because the legislature deciding on European integration matters, despite acting with the majority required by Art. Nor can it be based on initially constitutional conferrals that have supposedly evolved through a development of the law, because the institution or the agency of the European Union would thereby act ultra vires cf. This is underlined by Art. An identity review may also be triggered by a constitutional complaint Art.
It is rather inherent in the concept of Art.
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The European Union is an association of sovereign states Staatenverbund , of constitutions Verfassungsverbund , of administrations Verwaltungsverbund and of courts Rechtsprechungsverbund. This structure is ultimately based on international treaties concluded between the Member States. It is not decisive whether this rule — as in France Art.
Court of Appeal, Macarthys v. Corte Costituzionale , Decision no. This approach does not entail a substantial risk for the uniform application of Union law. On the one hand, violations of the principles of Art. On the other hand, the powers of review reserved to the Federal Constitutional Court are to be exercised with restraint and in a manner open to European law cf. To the extent required, it will base its review of the European act in question on the interpretation of that act provided by the Court of Justice of the European Union in a preliminary ruling pursuant to Art.
This does not only apply in the context of the ultra vires review, but also applies to declaring inapplicable an act of an institution, body or agency of the European Union in Germany, because it affects the constitutional identity protected by Art. The interests that are protected by the constitutional identity laid down in Art. The protected interests that, according to Art. This holds especially true with regard to Art. Human dignity constitutes the highest legal value within the constitutional order cf. To respect and protect human dignity forms part of the foundational principles of the Basic Law cf.
Against this backdrop, the Federal Constitutional Court, by means of the identity review, guarantees without reservations and in every individual case the protection of fundamental rights that is indispensable according to Art. The strict requirements for activating the identity review are paralleled by stricter admissibility requirements for constitutional complaints that raise such an issue.
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