Suchergebnisse

The Ph.D. project aimed to analyze the right to privacy in light of the recent restrictions and derogations put in place in international and European law, particularly in response to the terrorist attacks that occurred on 11th September, 2001. In this context, tensions peaked in 2013 when former NSA employee, Edward Snowden, denounced mass surveillance programs put in place by the American government. These programs, made also possible by the collaboration of the most important American internet service providers, aimed to monitor American citizens and not. Undeniably, in 2013 the international community gained greater awareness of the potential risks connected to the indiscriminate collection of personal information by the National Security and law enforcement authorities. In fact, there are still many States that consider mass surveillance an effective tool in protecting national security and preventing terrorist attacks. However, these measures simultaneously contain considerable risks for citizens' rights, due to either the frequent lack of adequate jurisdictional control at a national level or the indiscriminate nature of the data collected. Despite the importance of the right to privacy, there is still a lack of adequate legislation in this matter. This is especially evident at the international level. Notably, Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights both fail to explicitly provide for the protection of personal data. Furthermore, there is no mention of this right in article 8 ECHR. The legal deficiencies, mainly caused by the lack of adequate technical knowledge on the matter during the period that these conventions were drafted and ratified, have been partially compensated for by the development in case-law put in place by the European Court of Human Rights, beginning with the Klass and others v. Germany sentence until the more recent Big Brother Watch and others v. United Kingdom. In particular, according to the judges of Strasbourg, any limitation must be provided for by law, pursuing a legitimate aim, is necessary in a democratic society and respectful of the principle of proportionality. From a legislative point of view, the situation seems to be consistently more favorable in the European context where the right to privacy has become a fundamental right, according to Article 8 of the Charter of Fundamental Rights of the European Union and Article 16 TFEU. In the final part of the project have been also identified and analyzed other significant unresolved issues in the context of the right to privacy, regarding in particular corporate responsibility for illegitimate transmission of personal data to National Security and law enforcement authorities, which violates international standards protecting human rights, and possible extraterritorial exercise of jurisdiction by monitoring bodies.

Owing to globalization processes, the nation-state is facing the problem of re-examining its ability to create & maintain order through legislation & law enforcement, as well as its capacity to direct the economy in line with citizens' choices. The use of globalized economic & juridical patterns by private individuals is a great leap forward in economics & personal freedom, considering that the state is continuously loosing its monitoring & checking ability. At the same time, these individuals still live within the framework of the state & also acknowledge its power. Ironically, while trying to sidestep the state, the citizens still look to it to solve their everyday problems. The author investigates the reasons behind the crisis into which a specific model of state -- the Kelsenian & Keynesianan model -- has fallen in recent years. Nevertheless, the crisis of that model does not imply the loss of the possibility of managing the economy & globalization processes. The nation-state remains the most important producer of a great many services & its role in promoting advancements in knowledge & technological innovation is still a central one. One of the most important roles of the nation-state in the global era is that of removing the barriers to the global economy & pursuing the efficiency & innovation of its infrastructures & bureaucratic machinery. In the light of global changes, it is important to rethink the idea that the production of law & institutions can only be legitimated by ballots, or at least that voting always represents the best solution. Other kinds of legitimating processes should instead be considered by contemporary political theory -- for example, considering how people make their political choices like consumers in the free market. Adapted from the source document.

The growing interest in intellectual property is closely linked to the role it plays in modern society, characterized by continuous technological and cultural progress and a knowledge-based economy. Therefore, intangible assets have become increasingly important and indispensable for the success of individuals and businesses on the market. In order for this value to be preserved and made profitable, it is necessary that IP rights are effectively protected against counterfeiting and plagiarism. Indeed, thanks to technological innovations and easier access to information, these phenomena have reached worrying proportions, so much so as to test the adequacy of the responses of our legal system. In particular, in the general strategy of IP enforcement, a prominent role is played by infringement damages, intended as a tool by which to allow the owner of the infringed right to obtain fair compensation. However, traditionally, the institution of compensation has not always been up to this task, especially in view of the characteristics of intangible assets and counterfeiting phenomena, as well as due to a compensatory function focused too much on the damage suffered, so as to miss the other direct consequence of the harmful conduct: the profits gained by the infringer. With the intention of making up for this shortcoming, the legislator has been inspired by common law systems, in particular the US system and the remedy of disgorgement of profits, for the introduction of the retroversion of profits, an instrument foreign to our civil tradition that allows the return of profits unlawfully obtained from the violation of IP rights. Consequently, the remedy not only plays a compensatory function, but also a preventive-deterrent and punitive-sanctioning one. This thesis aims to critically analyze how the introduction of the retroversion of profits has led to redefine the concept of damages and, more generally, of civil liability in the field of intellectual property. Moreover, through a comparative analysis of the US and ...

This research study inscribes itself within that particular area of the juridical knowledge named Legislation Science, and it aims at expanding on the drafting techniques of criminal law. The analysis is first conducted in the frame of the constitutional principles, especially in the light of the principle of legality in those of its declinations which more directly affect the definition of the relations between the Parliament and the juridical order: precision, steadfastness and imperativeness. On the other hand, a truly complete reconstruction of the constitutional dimension of the principle of penal legality claims – in our opinion – a conceptual broadening regarding the criminal trial, mainly in the attempt to endow that principle with more meaningful contents and to enforce its value as a parameter of constitutionality of the ordinary penal legislation. Penal legality, thus, is put in strict correlation with the different principle (rectius: with the rule) of cross-examination for the evidence (art. 111 Constitution). The clear and precise formulation of the penal case in point, actually, proves to be a necessity imposed not only by the principle of legality, but also by the principles of the so called "fair trial", from whose accurate implementation depends the functioning of an accusatorial judgment, which relies on the cross-examination method and on the effective exercise of the right of defending oneself by evidence. As much fundamental appears to be a reconstruction of the international dimension of the principle of legality/steadfastness. What is here mainly pointed out is the regulatory and jurisprudential system of the European Convention on Human Rights, without leaving aside the Institutive Statute of the International Criminal Court, inside which the principle of clarity certainly has a key role. After having outlined the overall frame of the Gründnormen able to act as points of reference during the drafting of the penal rules, the research is directed toward an analysis of the current "spiritual situation" of criminal law, in order to highlight the noticeable creativity which characterizes the present interpretative and applicative activity of our jurisprudence. A creativity which has to be ascribed to an almost deliberate and already fairly settled activity of judicial supply. After verifying the very low level of the applicative hold of the criminal law's principle of steadfastness, the work largely focuses on the main technical procedures of lawmaking on the matter. The practical needs of criminal law are thus considered in the light of the different writing alternatives provided by legislation science: synthetic or general clauses technique and case-studies technique; descriptive or regulatory concepts (both judicial and extrajudicial); legal definitions and legal denominations. The treatment of the above-mentioned techniques of penal rules formulation takes always place with the look constantly directed to some of the most impressive hypothesis of drafting deficit shown by current criminal law. That aims at offering a picture of those jurisprudential enforcements which mostly show a "bad use" of the aforesaid techniques criminal law formulation. De iure condito e condendo, this research ends with the offer of some interpretational proposals directed towards a recovery of the steadfastness, having taken into account especially the solutions provided until now within various reform projects of the penal code since 1992.

Recent recognition of increased anthropogenic demands and influence on marine resources and ecosystem has led to a strong push for "active" marine conservation (Hockey e Branch, 1997; Lubchenco, 1997). The value of marine protected areas, particularly no‐take marine reserves, and the fundamental importance of understanding marine environments is now jointly recognized by politicians, conservation and management scientists and commercial fishermen. In this context are framed he remarkable results achieved by the establishment of restocking areas (no‐take areas), established in the seas surrounding Sardinia and aimed at improving the state of a resource of high commercial value such as the spiny lobster Palinurus elephas. Despite the fact that Sardinia, along the eastern part of Sicily, has always been one of the Italian regions with the highest productivity of lobster (data IREPA, 2007), in recent years the international community had become increasingly aware that the current management regulations were not longer sufficient to ensure a rational exploitation of the resource. The worrying picture of the state of the resource has therefore made necessary the search for innovative management policies, through the adoption of new management measures, that would lead to the increase of the stock. In this perspective the Ministry of Agriculture before and after the Autonomous Region of Sardinia, in collaboration with the University of Cagliari, have implemented several measures to protect the resource, including in 1998 the establishment of an area of restocking in the central‐western Sardinia. The restocking action of the reserve Pallosu, that now has lasted 14 years (1998‐2011), led to an increase in biomass of the species by 550% compared to 1997, the year before the establishment of the protection. Important results are also the effects recorded in the commercial areas of fishing surrounding the no‐take area in which, as a result of a continuous spillover of specimens (Follesa et al., 2007a,2011), an increase in productivity of the lobster up to a distance of about 6 km from the center of restocking has been highlighted, with the record of signs of this effect up to an area of about 20 km away. The validity of the research undertaken through the activation of restocking areas is actually witnessed not only by management results but also by the possibility of enhancing of knowledge of the lobster biology, that it proved to be useful in the management of the resource itself. For example, collecting a large amount of data during the breeding season has revealed that the size of the maximum reproductive potential, for Sardinian lobsters, is reached at 75‐85 mm LCS, well below the minimum capture imposed since 2006 by the same European Economic Community (LCS = 90 mm). This appeared a remarkably important result which confirmed the validity of the rules of governance currently imposed in the management of the lobster fishing. The minimum legal size (MTL), in our case, being well in excess of 15 mm compared to the size of the maximum reproductive potential (75 mm LCS), would enable females to have the opportunity to reproduce more than once before reaching the legal size. Protection of the youngest not only through an imposition of a minimum size of capture (MTL) but also of large specimens through the establishment of additional areas of protection and/ or re‐stocking and the introduction of controls on landing would be desirable for a more and better management of the resource. A careful enforcement of the management together with the support of the action exerted by the major areas of active recovery could undoubtedly improve the management of this important species of great commercial importance in the Mediterranean Sea. It is still to be emphasized that these results are important both from a management and scientific perspective, they would not have been achieved without the full cooperation of fishermen which believed in this experimentation. We hope that initiatives like the ones of the Autonomous Region of Sardinia that, in consequence of the positive results achieved in Su Pallosu, has activated in 2009 other 14 restocking areas, can be multiplied in many other Mediterranean areas. Given the positive result, it is thought that such experiments, together with the management rules currently in force, can contribute to better regulation of the resource in the entire basin.