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Researches Introduction |
European Research Center of Comparative Law publish the individual and collective researches made by Professor Doctor Natalia Bernal Cano in the areas of Comparative Constitutional Law, the fundamental rights, the constitutional procedures and the administrative liability.
The topics of the researches are the following |
| I. The protection of a person against the laws and other acts of public power that directly violate the Constitution and Fundamental Rights |
Research carried out by Professor Doctor Natalia Bernal Cano in relation with this subject has as a main goal the dissemination of knowledge about Constitutional Justice in the world. To achieve this objective, an analysis of different legal systems and the comparison of the protection mechanisms of the person’s rights are undertaken.
In this respect, the most interesting subjects are the proposed solutions to the problems of violation to the fundamental principle of due process in conditions of equality and the obstruction of justice. These problems are defined and analyzed in the book titled “Protection of the person against the law affecting him” (versions in French and Spanish languages) and in the book in French language titled “ la protection de la personne contre la loi qui l'affecte” written by Professor Doctor Natalia Bernal Cano as sole author.
The proposal of a simplified system of access to justice is another subject of research considered in the books titled « Le modèle unique de contrôle de constitutionnalité » and « la protection de la personne contre la loi qui l'affecte » by Professor Dr Natalia Bernal Cano. These works highlight the importance of legally justified resources, censoring at the same time the extremely formal legal practices demanded from the actors at the beginning of the process, the duty to supply all the appropriate arguments to obtain a favorable decision. These very rigorous practices become arbitrary and deny access to justice when the procedural actor has not had the opportunity to actively participate in all the stages of the process and the opportunity to prove his arguments.
Professor Doctor Bernal Cano also analyzes the access problem of the individuals to the Constitutional Court without a lawyer representation. In this case, the mentioned research censors the excessively formal legal practices requiring the individuals the necessary level of legal knowledge to go to the jurisdictions with the purpose to obtain a favorable decision. The book « Le modèle unique de contrôle de constitutionnalité » proposes a unique constitutional procedure open to individuals and institutional actors in order to obtain from the constitutional courts the protection of the fundamental rights affected by laws that violate the constitution. |
| II. The value of jurisprudence as a creative source of law | | The main subject of the research in two languages is judicial reasoning and its dynamic and evolutionary character. Professor Dr Bernal Cano highlight the importance of reciprocal cooperation between the courts and the legislature in different legal systems in order to fill legal gaps and correct laws that violate the Constitution. Professor Dr Bernal Cano also analyze the mandatory nature of judicial precedents in Anglo-Saxon systems and the modification of decision-making criteria in European legal systems. She demonstrate that the activism of judges replaces the simplified function of applying the law with a creative interpretation that broadly protects constitutional rights and principles. |
| III. Cooperation among judges in the defense of rights and autonomy
of their decisions in Comparative Law |
The present comparative study has been undertaken by Professor Doctor Natalia Bernal Cano, by the constitutional judges Brigitte Bierlein, Vice President of the Constitutional Court of Austria, Gaetano Silvestri, judge of the Italian Constitutional Court, Marie Deschamps, former judge of the Supreme Court of Justice of Canada and by the member of Belgian Parliament and Professor Emeritus of the Catholic University of Louvain Francis Delpéré. This is a study published in English and Spanish languages whose central problem is the division of competences among judges through different methods of reciprocal collaboration, especially to protect the fundamental rights and the constitution.
The book is a brief study of Constitutional Procedural Law where the different constitutional procedures in Europe and other legal systems are also analyzed. |
| IV. The relationships between the judges |
Professor Doctor Natalia Bernal Cano in her individual book published in Spanish “Armonía entre los jueces y aplicación razonable del derecho” / “Harmony among judges and reasonable application of the law” analyzes the subject of the relations of reciprocal collaboration among judges to avoid interpretation conflicts of the sources of law and the bad functioning of the administration of justice. Likewise, she analyzes the equivalent value of the sources of law in the legal reasoning of the judges, the variations of jurisprudence in justified cases and the direction of the legislative activity by the constitutional judges.
There are several questions: How can justice be administered in an ordered manner? How can harmony in the administration of justice be ensured when this function is exercised at different levels of power? How can the dialog among judges be encouraged in and outside of proceedings?
The central question of the book “Harmony among the judges” written in English by Professor Doctor Natalia Bernal Cano consists in resolving the diverse controversies that exist between jurisdictions concerning conflicts of interpretation of the constitutions and fundamental rights. The study does not intend to describe or enunciate diverse fonctions but rather illustrate the way through which judges cooperate pacifically and integrate so that there are not any serious divergences of interpretation in their decisions or rulings.
Professor Doctor Natalia Bernal Cano wish to highlight how the sources of law complement each other because of their equivalent value and the cooperative relationship between the legislature and the courts or among the different courts in order to achieve, among other objectives, harmony in the exercise of powers, the perfection of legislation, favorable changes in constitutional law, judicial coherence, the reasonable reiteration of decisions by judges and the unity of interpretative criteria. |
| V. The protection of the pregnant woman and the child to be born. |
On this subject, Professor Doctor Natalia Bernal Cano develops her arguments in favor of both the explicit legal and jurisprudential recognition of the fundamental right to access information about the risks and effects of the voluntary interruption of pregnancy, in one of her individual work titled “El derecho a la información sobre los riesgos y efectos de la interrupción voluntaria de la gestación” / "The right to information about the risks and effects of the voluntary interruption of pregnancy”. The research undertakes deep reflections on the rights of pregnant women as users of the health system in legal systems in France, Spain and Colombia, emphasizing the informed consent and the duties of the healthcare professionals in the supply of integral medical information on the techniques employed in the interruption of pregnancy, the risks in the physical health of the woman, in the reproductive function and in mental health. The book “The right to information on the risks and effects of the voluntary interruption of pregnancy” written in Spanish also includes some scientific interviews of Professor Doctor Natalia Bernal Cano directed to psychologists and Venezuelan and Spanish psychiatrist, along with a concrete presentation of the associations of humanitarian aid to the woman who is not sure to continue her pregnancy or has already voluntarily interrupted it.
Using detailed psychiatric information, Professor Natalia Bernal Cano scientifically demonstrate in the English version of the book titled: "the right to information about the risks of the induced abortion" that abortion affects a woman's mental health. In this way, a woman's health is endangered and the human dignity of both the woman and the unborn child is violated. Professor Bernal Cano aim to stress that all information associated with the techniques and risks of abortion must be obligatorily supplied for the purpose of preventing, not facilitating it. |
| VI. The judge and the immediate protection of fundamental rights |
Professor Doctor Natalia Bernal Cano in her book in English "The judge and the immediate protection of fundamental rights” describes the European domestic and community jurisdictions in a comparative perspective and their reciprocal relationships.
The first part of this analysis presents different jurisdictions in European countries and the multilevel proceedings to protect the fundamental and human rights in concrete cases.
The second part of this analysis addresses the unconstitutional questions formulated by judges a quo to the Constitutional Courts in the events in which a party believes that he/she is affected by a law in a judicial procedure and the procedure of constitutional complaint available to protect fundamental rights in specific situations affected directly or immediately by administrative acts, court decisions or laws in Europe. |
| VII. Comparative Constitutional Law |
Professor Bernal Cano analyses the common constitutional principles of the European States and demonstrate that uniformity in the interpretation and use of these principles could lead to the approval of a common constitutional code for these States.
In her book titled “The normative sources of Comparative Constitutional Law”, Professor Natalia Bernal Cano explains the reference norms used by constitutional courts in different countries in order to protect the Constitution and fundamental rights. |
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