Fundamental Rights and Freedoms

On October 14, 2023, Australian electors voted in a referendum regarding a proposal to change the Constitution by explicitly recognizing Aboriginal and Torres Strait Islander people through the insertion of a Voice to Parliament and Government. A majority of electors in each State voted against the change, as did a majority of electors nationally. Therefore, the referendum failed. This article explains the proposal from a public law perspective and includes brief reflections regarding the public debate surrounding the referendum.

This essay concerns the protection of freedom of expression in the EU legal system. The paper aims to identify the limits of, and possible restrictions to, this fundamental right. The paper focuses on the reaction of the European Union to the regime propaganda promoted by several Russian broadcasters to justify the attack on Ukraine. The paper has three aims. First, the paper evaluates whether the limitations on freedom of information, contained in the EU sanctions, represents a novelty in European law regarding human rights. Second, the paper highlights the recent trends in European jurisprudence regarding the protection of freedom of expression (“hate speech” and “fake news”), and considers their interaction with the recent sanctions of the European Council. Finally, the paper addresses whether the EU General Court, called upon to assess the legitimacy of these sanctions, followed the established process to conclude that the compression of freedom of expression is justified.

Section I of the Regional Administrative Court for Umbria in a recent case reaffirms the non-binding nature of the opinion of the national Institute for Environmental Protection and Research on the hunting calendar drafted by the Region under the provisions of law n. 157 of 1992, Rules for the protection of warm-blooded wildlife and for hunting. The ruling provides an opportunity to reflect on the state of legal protection of wild animals at national and EU level, in light of constitutional reform and recent regulatory amendments.

The contribution deals with the application of the principle of proportionality in the jurisprudence developed by national courts, the Court of Justice and the European Court of Human Rights to sanctions in the context of urban planning and construction. To this end, it first analyses the traditional categories of sanctions as they have been developed by national case-law. Secondly, it evaluates whether and how the principles developed by CJEU and ECHR have led to change.

In the Italian legal system – a constitutional State that has emerged from the ferocious totalitarianisms of the 20th century – access to judges is filtered by a control of worthiness that is based on indeterminate concepts, namely variable and personal tables of values. It is therefore possible – necessary, perhaps – to use the paradigm of legitimacy to argue for a broadening of access. It is necessary to loosen, if not quite sever, the hitherto tight and suffocating bond between the proximity of the subject to the physical place where the administrative decision impacts, and the actionability of the claim. There is a minimum objective, recently framed by the Plenary Assembly of the Council of State: to understand vicinitas in terms of contiguity that is no longer only material, but also axiological. And then a more ambitious one: to “de-subjectivise” the claim, to the point of configuring trans-subjective rights, that is, “without master”.

The article aims to explore the role of oral hearing in Slovenian and Italian administrative procedural law. In both countries the oral hearing is a pivotal moment in the judicial review of administrative decisions. The study aims to identify common elements in each system to determine a unitary content of oral hearing as a human right.

Public administration is immersed in a major technological disruption that raises interesting questions and legal debates. The use of artificial intelligence is undoubtedly one of them. However, this phenomenon must be analysed in the context of the general transformation that the public sector is undergoing, the so-called “public governance”, with all that this implies, in short, a new relationship between citizens and public authorities, which marks the scenario in which the current Administration must act. Bearing in mind that the very essence of administrative law hinges on a constant duality, this paper analyses the use of artificial intelligence in the public sector, seeking the eternal balance between efficiency and guarantees.

In 2025, the obligation for Austrian public officials to maintain confidentiality about all facts of which they have obtained knowledge exclusively from their official activity, enshrined in Article 20 (3) of the Federal Constitutional Law (B-VG) and thus of constitutional status, will celebrate its centenary. Since 1987, flanked by an obligation to impart information pursuant to Article 20 (4) B-VG, it guarantees the protection of information acquired by the public administration when communicating with citizens. With a view to a transparent administration, several attempts have been made since the beginning of the millennium to replace official secrecy with freedom of information in order to achieve a “transparent state”. However, despite the high degree of digitalization of the Austrian public administration, the path to this goal remains still challenging.

This article critically analyzes the regulation of administrative penalties, starting with Decree Law No. 19/2020, that have the intention of sanctioning conduct that has the potential to increase the spread of Covid-19.

The use of algorithms and A.I. systems in administrative action has strongly challenged the requirements of administrative due process. Due to the absence of national statutory rules on administration by algorithm, administrative courts have established a set of principles (the so-called “principles of algorithmic legality”) in order to protect the legal position of citizens involved in administrative procedures, borrowing them mostly from the EU General Data Protection Regulation (GDPR). Case law specifically requires public bodies to comply with: a) the citizen’s right to access to meaningful information concerning the automated decision-making; b) the citizen’s right not to be subject to a decision based solely on automated processing; c) the prohibition of algorithmic bias. After a brief overview of the content of these principles, this paper aims to analyse the relation between them and Article 21-octies, par. 2 of Law No. 241/1990. This paper questions whether they have been understood by the courts as reinforced procedural rules to avoid the “weakening” effect, provided by Article 21-octies with regards to procedural impropriety of non-discretionary decisions. In particular, this paper questions whether the strengthening of the procedural rules could be aimed at counterbalancing the lack of substantive legality, due to the exercise of implied powers by the public bodies in using algorithms, or whether it should be based on a different legal reasoning.