(Ne)konzistentnost “diferenciranog građanstva” u Preporukama za promjenu Ustava Federacije BiH

Author(s): Nedim Kulenovic / Language(s): Bosnian,Croatian,Serbian / Issue: 13/2013

Jedna od karakteristika ustavnih sistema u BiH, pa i onog Federacije BiH, jeste postojanje interne antinomičnosti koja se ogleda u činjenici da su “pojedina ustavna rješenja uzajamno proturječna, i da se, unatoč jednakoj pravnoj snazi, uzajamno isključuju”. Ekspertna grupa za reformu Ustava Federacije Bosne i Hercegovine (Ekspertna grupa) za regulativno područje ljudskih prava i osnovnih sloboda u Ustavu FBiH zapaža da u smislu antinomičnosti postoji “nekonzistentnost” između garantovanih ljudskih prava. Posebno se ističe pravo na nediskriminaciju iz normativnog dijela i preambule Ustava FBiH, gdje se vrši “nominalno razlikovanje” nosilaca suvereniteta, a što u konačnici vodi “različit[om] tretman[u] u pravima”.

„Dzieci w widowisku mężczyzn”? Realizacja biernego prawa wyborczego przez kobiety z województw południowo-wschodnich II Rzeczypospolitej

Author(s): Tomasz Pudlocki / Language(s): Polish / Issue: 1/2017

On November 28, 1918, Chief of State Józef Piłsudski signed a decree prepared by the government of Jędrzej Moraczewski granting active and passive voting rights to women. At the same time, throughout the whole interwar period, civil law remained contrary to the principle of gender equality enshrined in the Constitution of March 1921. It resulted from the provisions of the legal codes of pre-war empires and was under requisition until 1939. Moreover, it is worth remembering that in the world of distribution and power relations, connections and distinguishing the “assigned” roles of male and female were more important than equality in parliamentary elections. The author of the article tries to show that there was a huge gap between the law and the actual political practice during the whole period. He examines pre-election calls for voting articles, reports from political meetings as well as articles on suffrage written by men and women. Different political parties had one thing in common – women were treated by their representatives as a beautification of politics, not as equal partners. It appears that not only men believed that they were better prepared for public world offices – the majority of women, even from the upper classes, shared this vision. The example of the south-eastern provinces of the Second Polish Republic shows huge conservatism of the elite’s mentality.

1866-1947: CONSTITUŢIONALISM ŞI AUTOCRAŢIE LA ROMÂNI

Author(s): Ioan Stanomir / Language(s): Romanian / Issue: 83/2016

The aim of this paper is to trace back the origins of the two conflicting traditions that exist within the framework of the Romanian constitutional history. Between 1822 and 1947, the Romanian constitutional dynamics has been shaped by the aspiration to borrow extensively from the belgium, french and english public law, with the purpose to set up a political regime of constitutional monarchy and ideological moderation. The 1866 constitution is the climax and the coronation of this prolonged effort. There is, however, an alternative legal paradigm evolving in the same period, an alternative promoting the idea of autocracy. By eliminating the checks and balances guarantees and by curtailing severely human rights, this autocratic approach managed, between 1938 and 1944, to impose its own agenda, by dismantling the rule of law state. The legal and political conversation between these two traditions is at the the very centre of Romanian modernization.

20 Years of “Autonomy” For the Gagauz: Reflections on Devolutionary Trends in the Republic Of Moldova

Author(s): Larisa Patlis,Judithanne Scourfield MCLauchlan / Language(s): English / Issue: 01/2015

The Republic of Moldova, a small country landlocked between Romania to the west and the Ukraine to the east, is arguably the most complex of the fifteen countries born out of the collapse of the Soviet Union. Moldova is a borderland that is deeply divided between Romanian speakers drawn towards the European Union and Russian speakers who continue to feel the tug of old ties to Moscow. While Moldova may be on the path toward European integration, in many ways it is a country stuck in the unresolved problems of a Soviet past, especially with respect to territorial and national integrity. Our research will focus on the devolved region in the Republic of Moldova: Gagauzia. Much scholarship is devoted to study of the de facto state of Transnistria, but the situation in the autonomous region of Gagauzia is no less important. Upon the 20th Anniversary of the Gagauz Autonomy, we will provide an overview of the developments in Gagauzia from the proclamation of the Gagauz Republic and the conflict it generated to the present state of affairs in Gagauz Autonomy. We will then evaluate problems and prospects for devolution in Moldova, identifying some acute issues in Chisinau‐Komrat relations. Onceconsidered a success and a potential model for settlement of other conflicts in post‐ Soviet space, we will consider whether autonomy in Gagauzia has been achieved.

2014 ALTERNATIVE PROGRESS REPORT: POLITICAL CRITERIA

Author(s): / Language(s): English / Issue: 3/2014

This is the second Alternative Progress Report on Bosnia and Herzegovina’s path towards the EU membership. The report is a joint effort of dozens of individuals and organizations whose common goal was to show the current state of integration of Bosnia and Herzegovina from the perspective of civil society organizations. Having in mind that the official Progress Report on Bosnia and Herzegovina is a political report of the European Commission, we believe that the publication of the Alternative report can affect its content. Because of this, we are publishing this Alternative Progress Report nearly three months before the publication of the official one, hoping that it will have an impact on the formulation of the formal report. The report completely relies on the so-called political criteria, focusing on the following questions: - Democracy and the functionality of the State, - Rule of law and corruption, - Human rights, especially the rights of minorities and vulnerable groups, and - Transitional Justice During the 2013 and 2014, we have witnessed that no relevant progress has been achieved. The process of implementation of the Sejdić and Finci v. Bosnia and Herzegovina ruling is completely displaced from the Parliament. Performance of the democratic parliaments and governments on state, entity and cantonal levels is extremely low. The work of the institutions is characterized as unstable, inefficient and with notable lack of transparency. The decisions of the constitutional courts are still not implemented. No significant and systematic policies to combat human rights violations have been adopted. Judicial reform has been stopped and Structured Dialogue on Justice between B&H and the EU does not show any progress. Not a single significant case of corruption has been processed. Minority and vulnerable groups still live in difficult conditions. Discrimination and violence are all-present, and the law on prohibition of discrimination did not show the expected results, having in mind that five years after the enactment of the law, only two final judgments were passed. Comprehensive anti-discrimination policies for social integration either do not exist, or are almost never applied. Floods additionally hit the most vulnerable groups in society. Furthermore, the most vulnerable groups in society have been affected by the recent floods. The prosecution of war crimes and dealing with the past, as prerequisites for creating a healthy environment and building a common state, represent an additional problem. Political support for war criminals by the leaders of political parties only further divide the already highly fragmented society. We hope that the general elections in October of 2014 (although held by discriminatory rules) will bring more stable political structure, ready to face different problems. Initiative for the Monitoring of the European Integration of Bosnia and Herzegovina will certainly advocate change, in terms of adopting new laws and policies, and the implementation thereof. We also hope that the BiH authorities and the EU institutions will support a stronger representation of civil society within the various forums within the EU integration. Civil society must become the third actor in this process along with the State and EU institutions.

51. kongres Essener Gespräche zum Thema Staat und Kirche, Mülheim an der Ruhr, březen 2016

Author(s): Záboj Horák / Language(s): Czech / Issue: 64-2/2016

52. kongres Essener Gespräche zum Thema Staat und Kirche, Mülheim an der Ruhr, březen 2017

Author(s): Záboj Horák / Language(s): Czech / Issue: 67-2/2017

A “Constitutional” Coup in Hungary between 2010–2014

On Some Aspects of the Exclusive Systemic Exercise of State Power with Regard to Constitutional Law, International Law, and European Law

Author(s): Imre Vörös / Language(s): English / Publication Year: 0

The Fundamental Law, drafted in 2011 and instituted on 1 January 2012, was amended no less than five times over a year and a half.Hungary’s sitting prime minister since 2010 had formulated his intent to stay in power for an extended period of time in his state-of-the-nation speech delivered in Kötcse, as early as 9 September 2009. As well, he expounded the necessity of building a system of political institutions that could guarantee the realization of this plan, practically by establishing a one-party state. His idea of a “central field of power,” especially if designed for the long term, was neither reconcilable with democracy, nor with a multiparty system, let alone with the electoral law which was in force until 2010.

A közszolgálati média alkotmányos helyzete, problémái a posztkommunista korszakban – a magyarországi tapasztalat

Author(s): László Majtényi / Language(s): Hungarian / Issue: 28/2015

The lecture analyzes the changes in the functions of public broadcasting within the digital era. It demonstrates the control models of public broadcasting with a special focus on Eastern Europe. In addition, it gives a detailed insight into the Hungarian experience: starting from the regime change, until its practical burnout in the illiberal state. In the author's opinion, despite the negative experience, there are very strong arguments for the maintenance of public media broadcasting in a country like Hungary that is so isolated language-wise, and that has such a small media market. To make this happen, the author thinks that cheap and professional control system is needed.

A Matter of Interpretation – The Dead and the Living (Constitution)

Author(s): Andreea Verte?-Olteanu,Andrei Lacatusu / Language(s): English / Issue: 01/2015

On the face of things, a living Constitution definitely sounds better than its counterpart, a dead Constitution ‐ as William H. Rehnquist playfully puts it, “it would seem that only a necrophile could disagree”. If the question is worth asking a future Associate Justice of the Supreme Court of the United States, it surely still deserves to be analysed, especially given the rejuvenation of the debate thanks to the Obergefell v. Hodges case (2015) and the almost simultaneous recent publication of two antagonist studies: Jack Balkin’s Living Originalism (2011) and David Strauss’s The Living Constitution (2010) which, despite both having the word “living” in their titles, offer two current and opposing alternatives on the battlefield of legal interpretation of the Constitution.

Activities of Intelligence Services as a Synonymous of Fear and Intimidation

Author(s): Fisnik Sadiku,Besnik Loka / Language(s): English / Issue: 2/2015

Intelligence services are an important factor of national security. Their main role is to collect, pro-cess, analyze, and disseminate information on threats to the state and its population. Because of their “dark” activity, intelligence services for many ordinary citizens are synonymous of violence, fear and intimidation. This mostly comes out in the Republic of Kosovo, due to the mur-derous activities of the Serbian secret service in the past. Therefore, we will treat the work of intelli-gence services in democratic conditions, so that the reader can understand what is legitimate and legal of these services. In different countries of the world, security challenges continue to evolve and progress every day, and to fulfil these challenges, the state needs new ways of coordinating and developing the capabil-ity to shape the national security environment. However, the increase of intelligence in many coun-tries has raised debates about legal and ethical issues regarding intelligence activities. Therefore, this paper will include a clear explanation of the term, meaning, process, transparency and secrecy, and the role that intelligence services have in analyzing potential threats to national security. The study is based on a wide range of print and electronic literature, including academic and scien-tific literature, and other documents of various intelligence agencies of developed countries.

Adoption of a child by homosexuals in light of the best interests of the child principle in accordance with its understanding in Polish family law – subjective interpretation of the author

Author(s): Marta Prucnal-Wójcik / Language(s): English / Issue: 37/2017

RESEARCH OBJECTIVE: The purpose of this article is to present arguments against the admissibility of adoption of a child by a homosexual person in light of the best interests of the child principle in accordance with its understanding in Polish family law. It has to be emphasized that the article presents solely subjective author’s interpretation of Polish legal provisions regulating the institution of adoption. THE RESEARCH PROBLEM AND METHODS: Since Polish legislator has not explicitly accepted or prohibited the adoption of a child by a homosexual person, the question of the admissibility of adoption of a child by such a person is raised in light of the principles of family law in force in Poland. There has been applied the method of critical and comparative analysis as well as the analysis of the reference Polish literature, rulings of the Supreme Court of the Republic of Poland and Polish reference legislation. THE PROCESS OF ARGUMENTATION: After having initially defined the aim of the study, the author indicates the function and purpose of the adoption and its premises. Two basic premises of adoption are explained in detail - the premise of the best interests of the child and the appropriate personal qualifications of the adopter. The essential part of the argumentation is to find the answer to the question on whether adoption of a child by a homosexual person in light of Polish family law is admissible or not. RESEARCH RESULTS: The result of this research is the statement of inadmissibility of adoption of a child by homosexuals in light of Polish family law. CONCLUSIONS, INNOVATIONS AND RECOMMENDATIONS: The analysis confirmed the author’s opinion that adoption of a child by a homosexual person/ homosexuals appears to be in contradiction with the principle of the child's best interests principle in accordance with its understanding in Polish family law.

AFIRMACIJA LJUDSKIH PRAVA KAO POLAZIŠTE ZA REDEFINISANJE POLITIČKOG I DRŽAVNOPRAVNOG KONCEPTA BOSNE I HERCEGOVINE

Author(s): Mirjana Nadaždin-Defterdarevic / Language(s): Bosnian / Issue: 2/2016

This paper deals with the issue of organizational principle of the state of Bosnia andHerzegovina – which currently rests on the concept of the three constituent peoples – questioning its relationship with the principles of equality and non-discrimination, which havebeen proclaimed both in the state and entity constitutions. The conclusion that follows confirms the thesis that a divided society, in which the ethno-cultural divides are politically most important, underlying the political fragmentation of society, is an environment in which thevalue of these guaranteed principles cannot be realized. By analysing the content and through teleological method, research particularly focuses onthe aspect of human rights where, through the application of the criteria of ethnicity, we can clearly see their discriminatory effects. This paper seeks the answer to the question of what is the most reliable basis on which thestate and society of Bosnia and Herzegovina should develop. The author finds that for this purpose the most suitable is the affirmation of the principle of “differentiated citizenship”, which allows the self-determination of each individual, thus giving them the possibility of freedom that they will use in the way that suits them the best. In this way, the current differentiation in human rights – according to the criterion of ethnicity – would lose its objective and reasonable justification.

AHD-NAMA MURATA III STANOVNICIMA BARA IZ 1575. GODINE

Author(s): Hamdija Šarkinovic / Language(s): Bosnian / Issue: 35-36/2006

U našim pravnim naukama ustavna istorija predstavlja nedovoljno proučeno područje. Moderna ustavnost počinje raspadom feudalne države, a u razvoju te iste države postojalo je dosta dokumenata koji se mogu nazvati klicama moderne državnosti čije je upoznavanje preduslov razumijevanja prvih pisanih ustava. Prvi i najpoznatiji od ovih dokumenata je Magna Carte libertatum (Velika povelja o slobodama) od 15. juna 1215. donijeta u borbi između engleskih feudalaca i njihovog vladara Jovana »bez zemlje«, koja se odnosila na jedan sloj engleskog plemstva-barone i zato je u prvim godinama svog važenja i nazvana i nazvana »Carta Baronum«. Ona je svakom slobodnom čovjeku garantovala izvjestan stepen zaštite protiv zloupotrebe kraljeve vlasti, što je u to vrijeme bio samo baron. U 63 paragrafa Magna Carta posebno ograničava sudske prerogative kralja, propisujući zakonitost u lišavanju slobode i pravo na zakonito suđenje. Baronima je priznato i pravo na pobunu protiv vladara u slučaju da se ne pridržava obaveza propisanih Poveljom.

Aktualna wiedza medyczna a stosowanie homeopatii

Author(s): Joanna Haberko / Language(s): Polish / Issue: 1/2009

The paper discusses medical practitioners’ responsibility defined in Art. 4 of the Act on the Professionsof Physician and Dentist in relation to Art. 4 of the Code of Medical Ethics. The responsibility concerns the doctor’s acting in conformity with current medical knowledge, and this isexamined in the context of prescribing homeopathic medicinal products. Thus the paper attempts to answer the question whether prescribing the said products conforms to current medicalknowledge. This is achieved by reviewing the regulations issued by the medical self-governmenton the application of selected medicinal products which in the self-government’s opinion infringesthe standards of current medical knowledge. Particular attention is devoted to the analysisof the position of the Supreme Medical Council no 7/08/V of April 4, 2008 on the applicationof homeopathy and related methods by medical practitioners and dentists and on training sessionsorganized in this respect as well as the position no 2/09/V of February 13, 2009 on the motionof the Minister of Health to revoke or change the Council’s position no 7/08/V.On the basis of findings discussed in the paper it is concluded that the SMC has passed a resolutionwhich infringes on the regulations of the act on the chambers of physicians and dentists.

Aktuelni prijedlog izmjena Izbornog zakona Bosne i Hercegovine

Author(s): FCJP Fondacija Centar za javno pravo / Language(s): Bosnian,Croatian,Serbian / Issue: 12/2013

Da li je potreban uvod o temi kakav je izborni zakon? Odgovor se sam nameće jer je važnost izbornog zakona, odnosno, izbornog sistema nemoguće zaobići, ne samo u Bosni i Hercegovini nego ni u jednoj drugoj državi.

AKTY PRAWNE Z MOCĄ USTAWY W POLSKIM PRAWIE KONSTYTUCYJNYM W LATACH 1921–1947

Author(s): Malgorzata Grzesik-Kulesza / Language(s): Polish / Issue: 15/2014

Non-parliamentaly legal acts are part of a tradition of Polish constitutionalism and were treated differently in the various systems of Government. They existed in the Polish constitutional law during the period of the second Polish Republic, during World War II and immediately after its completion. During the preconstitutional legislation was delegated at the time of functioning of the makeshift Government after the recovery of the Polish State's independence in 1918 and it was theprimary instrument of lawmaking. Polish constitutions showed various forms of non-parliamentaly legal acts with the force of law and in a variety of ways laid down the scope and legal basis of their establishing. Only the March Constitution adopted in 1921 did not provided distinctly the acts of this kind.

Akty ustrojowe i konstytucje Islandii

Author(s): Stanislaw Sagan,Viktoriya Serzhanova / Language(s): Polish / Issue: XXXI/2014

The main aim of the article is to analyze the political and constitutional acts of Iceland. Icelandic constitutionalism was developing in the shade and under the influence of Danish political achievements. Danish law belongs to the so called western circle of Nordic legal culture. In Iceland the original institutions of government, which dates back to the beginning of the thirteenth century, have developed. The annexation of Iceland by Denmark at the end of the fourteenth century tied the fate of Icelanders with this country and its legal culture until the mid-twentieth century. This caused that the development of the indigenous political institutions of Iceland, which dates back to the beginning of the tenth century, was stopped. The Authors refer to the legal acts concerning political system of Iceland in the pre constitutional period, Icelandic historical constitutions and the constitution of 1944, which is still in force. Currently, Icelanders are preparing a revision of their constitution. Original, yet unique feature of this process is that for the first time in the history of global constitutionalism Icelanders have prepared the text of a new constitution through online consultations. Such procedure of the preparation of the draft of a new constitution has been considered as the unprecedented manifestation of direct democracy.

Akty wewnętrznie obowiązujące jako przedmiot abstrakcyjnej kontroli Trybunału Konstytucyjnego

Author(s): Grzegorz Wierczynski / Language(s): Polish / Issue: XXXI/2014

The first part of the article includes the analysis of the way in which the conditions concerning the control of internally binding acts are interpreted in Polish legal science and the case Jaw of the Polish Constitutional Tribunal. These conditions are expressed in art.188 p. 3 of the Polish Constitution. The second part of the article concerns the question of the adequacy of Art. 93 of the Polish Constitution as the specific model for the control of internally binding acts as well as the provisions authorizing their release. Finally, the Author presents conclusions concerning changes in the currently applied way of the interpretation of Art. 93 of the Polish Constitution.

Alternative approaches of the „American model - European model” dichotomy

Author(s): Adela Elena Micica / Language(s): English / Issue: 5/2016

This paper endeavours to briefly present European scholars’ reflections upon the models of constitutional review and to propose a possible new model registered at European level, which is focused on individuals and their legal protection. This means it is necessary to rethink the classical approach of the constitutional justice in light of legal traditions, positive law within legal systems and comparative methodologies. The criteria used for the distinction ”American model-European model” have lost their topicality and relevance concerning the effective protection of human rights. As we can all agree, there are no differences in terms of results between the American and the European system of constitutional justice. In a globalized context of human rights, we meet a certain merger, a transformation of the legal world’s diversity into a great unity.