Детайлен анализ на свързаните с правото на ЕС изисквания към исканията от съд до Конституционния съд – II част

Author(s): Atanas Semov / Language(s): Bulgarian Issue: 7-8/2024

Judgments due ipso jure by the judge in each case, which must also be set forth in a request to the SC. In this second part, all judgments related to the PES are indicated, which each judge (judicial panel) owes ipso jure in each case and ex officio - and in the sequence that their practical implementation requires and as therefore indicated by the Supreme Court.

Искане за установяване на противоконституционност

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 1/2024

Преюдициално запитване до Съда на Европейския съюз от 13.07.2023 г. по адм. дело № 12013/2022 на Върховния административен съд

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 1/2024

Directory of judicial acts

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 1/2024

DOBRA OD OPĆEG INTERESA

Author(s): Larisa Velić,Ismet Velić / Language(s): Bosnian Issue: 33/2023

Goods of common interest exist in the form of construction land, agricultural land, forests and forest land, and other assets. Due to their significance, they hold a special place in the economic and legal system, and, accordingly, they traditionally enjoy specific legal protection. The legal regime for these goods is regulated by the Law on Rights in rem, as well as particular rules regarding construction land, agricultural land, forests and forest land, and other specific regulations. Regarding the legal existence of goods of common interest in the previous as well as the current legal system, significant transformations of rights in rem on these assets have occurred in terms of establishing state, social, or traditional ownership rights. In connection with this, certain actions, especially by entities, aimed at appropriating these goods have been noted, leading to specific disputes that resulted in special procedures and decisions, with established positions of the Constitutional Court of Bosnia and Herzegovina regarding the constitutionality of laws and the status and belonging of the subject goods. Despite numerous provisions of relevant entity regulations in this area being repealed, the process of their harmonization and the adoption of appropriate regulations by the competent authorities of Bosnia and Herzegovina to establish an adequate normative-legal framework for the complete and adequate regulation of this area is still pending.

Narrativity and the Idea of Narrative Identity in Law

Author(s): Marta Andruszkiewicz / Language(s): English Issue: 3/2024

How can an extension of the legal perspective with the idea of narrative unity be presented using the law and literature movement? Considering law as a complex semiotic object that is a product (and carrier) of culture makes it possible to see elements of narrativity from a theoretical and legal perspective. This is a significant phenomenon, especially after the cultural turn in the humanities. This article presents a problematisation of narrativity in legal discourse and the theory of law. As is well known, the theory of narration and the concept of narrativity have been widely used in the humanities, mainly in literary theory. I propose extending the narrative perspective to law by showing what research directions can be observed when using the concept of narration in the ethical and aesthetic dimensions of law. Finally, I discuss the thesis of narrative identity in relation to law. I adopt the perspective of examining law in the light of literary analysis.

Grundnorm and Grounding A modern Metaphysics for Hans Kelsen’s Pure Theory?

Author(s): Monika Zalewska,Carsten Heidemann / Language(s): English Issue: 3/2024

This article explores the possibility of reconstructing Hans Kelsen’s neo-Kantian theory of the basic norm (Grundnorm) with the help of the theory of (metaphysical) grounding. First, we outline Kelsen’s theory of the basic norm as an integral part of his neo-Kantian transcendental idealism and give a sketch of grounding theory; we then try to fit these theories together. As it turns out, grounding theory has some internal flaws. More importantly, several of the features of a metaphysical ground are not compatible with the roles which Kelsen ascribes to the basic norm – its roles as a keystone of the legal hierarchy and as a transcendental-logical condition of legal cognition. Finally, an alternative conception is examined, according to which the legal system is grounded not by the basic norm but by social facts, with the basic norm serving as a bridging principle. However, this alternative is flawed as well; its main problem seems to be that it violates the dualism of ‘Is’ and ‘Ought’. The argument is relevant for the concept of personhood, because Kelsen treats the term ‘person’ in law as a mere expression for the unity of a specific set of legal norms, so that the identity of persons is ultimately dependent on the identity and function of the basic norm of the legal system.

The Personal Identity of the Human Being and the Right to Privacy from the Perspective of Standards of the European Court of Human Rights: Theoretical Legal Reflections

Author(s): Bartosz Liżewski / Language(s): English Issue: 3/2024

This article seeks to present the problem of the personal identity of the human being as an important element of the right to one’s private life being respected. The presentation is from the point of view of the guarantees related to the establishment of standards for the protection of human rights by the European Court of Human Rights in Strasbourg. Relevant for this reflection is the theoretical legal approach to this matter, with particular reference to the methods of interpretation of the European Convention on Human Rights. The article discusses the problem of understanding personal and social identity in a cultural context related to group and individual axiology. It presents historical determinants of the ideology of approaching the status of the individual within the state and the general standards of the right to have one’s private life respected. Two key methods of interpretation for devising standards of protection, i.e. the evolutionary interpretation and the method of the cultural margin of assessment, are also analysed. Not only do these methods allow for taking changes in European social axiology into account, but they also allow for the distinctiveness of social axiology at the local level. From this perspective, an answer is given to the question, do the ECHR’s standards for the protection of the right to respect for private life serve to reinforce the personal identity of a human being?

Identity Claims and the Legal Order: Secular or Religious?

Author(s): Ivan Padjen / Language(s): English Issue: 3/2024

The problem addressed in this article is the challenge that identity claims stemming from identity politics, commonly recognized as left liberalism, pose to the secularity of the modern legal order. The paper: (1) postulates human dignity as the highest value and assesses the potential of philosophy and law to find a balance among the conflicting demands posed by this value; (2) identifies constitutional principles and/or jus cogens as the basis for the identification and appraisal of identity claims; (3) describes major identity claims embodied in the Istanbul Convention and appraises them on the basis of the principles; (4) ascribes identity politics and its claims to a worldview with traits of a religion, termed culturalism, as their condition. The conclusion proposes alternative decisions (de lege ferenda) more in accord with the principles, most notably with the freedom of thought, conscience and religion.

For centuries, the law accepted the legal gender of an individual that was indicated at birth by the appearance of their genitalia and stated on their birth certificate. Nowadays, however, we have plenty of scientific, medical and psychological evide

Author(s): Agnieszka Bielska-Brodziak,Aneta Gawlik-Starzyk,Tomasz Jakubowski,Małgorzata Trofimiuk-Müldner / Language(s): English Issue: 3/2024

For centuries, the law accepted the legal gender of an individual that was indicated at birth by the appearance of their genitalia and stated on their birth certificate. Nowadays, however, we have plenty of scientific, medical and psychological evidence (and thus reasons) to revise the adopted way of thinking about legal gender to associate it more with gender identity. Most people do not perceive a potential conflict between genital sex and gender identity, because their genital sex is consistent with their gender identity. Trans- and intersex comunnity needs recognition of their gender identity independent of their genital sex as a condition for a life of self-determination, personal freedom, respect and dignity; these are, after all, values that are extremely important for the law. The purpose of this analysis is to determine whether the concept of gender identity is perceived generally in the Polish language and the Polish legal system in a way that takes into account current medical knowledge and the legitimate needs of the individual. If not, then what de lege ferenda recommendations can be made to change this situation?

Gender Identity in Cis-Heteronormative Legal Orders: A Comparative Approach – Poland and Mexico

Author(s): Anetta Breczko,Agata Breczko / Language(s): English Issue: 3/2024

In this article, we examine the legal challenges encountered by LGBT+ individuals in Poland and Mexico within the context of prevailing cis-heteronormative structures. These structures deeply influence societal and legal systems in both countries, resulting in marginalization and discrimination. We compare the development of LGBT+ movements and their impact on legislative changes by analysing enacted laws, court cases, and law proposals. The study highlights the progress and obstacles to achieving equality in each case: Mexico has made significant strides in recognizing non-binary perspectives and advancing LGBT+ rights, while Poland has faced setbacks due to the continuous rejection of progressive reforms. Both countries continue to navigate unique challenges in their pursuit of greater inclusivity for the LGBT+ community, offering valuable lessons from each experience.

The Evolution of Same-Sex Marriage Case Law in Europe

Author(s): Elżbieta Kużelewska,Marta Michalczuk-Wlizło,Bruna Žuber,Matevž Bedič,Mariana Mesquita Vilas Boas,Luísa Ramos Naia / Language(s): English Issue: 3/2024

The number of countries allowing same-sex marriage is gradually increasing. Currently, 37 countries have laws regulating same-sex marriages, specifying their status and/or the possibility of adopting children. These solutions counter discrimination against same-sex couples and are part of the protection of human rights. Against the background of other countries, the pan-European tendency to accept the institution of same-sex marriage is garnering positive attention, although it is still controversial in some countries. Regulations of European law and the case law of the Court of Justice of the European Union, the European Court of Human Rights and the constitutional courts, which play an essential role in anti-discrimination measures and are in favour of respecting human rights, provide crucial support. This article discusses the evolution of the jurisprudence of the ECtHR, the CJEU and the national courts of selected countries (Slovenia, Spain, Portugal, Germany and Austria) concerning same-sex marriage. It highlights how recognising the right to same-sex marriage does not come at the expense of the rights of others or the public interest.

Transformation of the Constitutional Identity in South Africa after the Fall of Apartheid

Author(s): Patryk Wawrzyński,Joanna Marszałek-Kawa,Neo Sithole / Language(s): English Issue: 3/2024

This article investigates the designed transformation of South African political identity and its constitutional framework as a core aspect of the democratization of South Africa. It compares the racist and exclusive identity of the apartheid state with a redesigned identity of an inclusive and open ‘Rainbow Nation’, a concept coined by Archbishop Desmond Tutu and spearheaded by Nelson R. Mandela along with the African National Congress. The study considers changes in the legal framework of identity politics, from the Republic of South Africa Constitution Act of 1983 (and the previous apartheid republican Constitution of 1961) through the interim democratic Constitution of 1993 to the Constitution of the Republic of South Africa of 1996. It discusses the possible significance of the 18 amendments to the act regarding South Africans’ social and political identities, and establishes a complex and detailed portrayal of the republic’s legal framework of identity politics. The study combines legal, political, and cultural analysis of the role of law in formatting social and political identities, using survey results to test its impact on society. In conclusion, the paper considers the effects of post-apartheid identity transformation in South Africa.

Akty typu soft law Prezesa UOKiK i ich wpływ na określenie sytuacji przedsiębiorcy w postępowaniu antymonopolowym

Author(s): Beata Wieczerzyńska / Language(s): Polish Issue: 3/2024

Wraz z przyjęciem acquis communitaire polska administracja została skonfrontowana z dużąliczbą aktów prawa miękkiego wydawanych przez administrację unijną, a także sama zaczęła szeroko z nich korzystać. Systematyczne „utwardzanie” aktów prawa miękkiego powoduje, że instrumenty te wykazują rozbieżność między ich formalnie niewiążącym statusem a fak-tycznym zamierzonym znaczeniem i skutkami – mają często charakter „ukrytej dyrektywy”, czy nawet bardziej imperatywnego środka, wywierając skutki prawne i określając sytuacjęprawną np. przedsiębiorców. Dlatego wysuwa się postulat, aby akty typu soft law mogły byćpoddane autonomicznej kontroli sądowej w zakresie zarówno wykładni, jak i stwierdzenia ich nieważności.Ta kże Prezes UOKiK może wydawać urzędowe wyjaśnienia i wytyczne, które odpo-wiadają definicji aktów o charakterze soft law. Wytyczne dotyczące ustalania wysokości kar pieniężnych dla przedsiębiorców mają istotny wpływ na określanie sytuacji prawnej przed-siębiorców, a orzecznictwo sądowe w coraz większym stopniu odnosi się bezkrytycznie do określonej w nich metodologii ustalania kar pieniężnych.

Здравноосигурителният контрол по чл. 72, ал. 2 ЗЗО като производство

Author(s): Nina Chilova / Language(s): Bulgarian Issue: 3/2024

defined as a specific administrative, unilateral and uncontested proceeding. It is a complex legal fact, incorporating a series of statutory procedural actions involving at least two persons. These features characterize it as a dynamic-multiple factual composition. It is a control – determination proceeding, the activity of which is predominantly legal in nature.

Юриспруденция. Решение на СЕС по дело C-512/08

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 3/2024

Конституционните изменения VS. Конституцията

Author(s): Raina Nikolova / Language(s): Bulgarian Issue: 4/2024

The study is an analysis of the constitutional amendments made by the 49th National Assembly, which caused the constitutional case No. 1 of 2024 to be filed before the Constitutional Court of the Republic of Bulgaria and the constitutional case No. 2 of 2024 to be joined to it. It is a kind of continuation of the opinion already expressed by the author against some of the amendments concerning the dual citizenship of the members of the National Assembly, the Council of Ministers and the President of the Republic and the constitution of some executive bodies. It thoroughly clarifies the substantive positive preconditions and the procedure for the adoption of amendments to the Constitution of the Republic of Bulgaria by the ordinary National Assembly. Examines in detail the content of the request to declare unconstitutional the adopted amendments to the Constitution. Contains the views of the Constitutional Court on the amendments so made.

Искане за установяване на противоконституционност

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 4/2024

Тълкувателно решение на Върховния административен съд № 5 от 25.06.2024 г.

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 4/2024

Решение № 6084 от 17.05.2024 г. по адм. дело № 452/2024 г. на Върховния административен съд

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 4/2024