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"Dialogue" of the High Courts CJEU – CCR – HCCJ, regarding the prescription of criminal liability

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"Dialogue" of the High Courts CJEU – CCR – HCCJ, regarding the prescription of criminal liability

Author(s): Tudorel Toader / Language(s): English Issue: 01/2022

The constitutional order is ensured by the jurisprudence of the constitutional court. The Court of Justice of the European Union cannot call for violation of the balance between state powers, nor for non-compliance with the principle of legality. The Supreme Court cannot disregard the case-law of the the Constitutional Court of Romania, it cannot establish the existence of a systemic risk, it cannot violate the principle of legality. The competences of the three High Courts are complementary without any collision.

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"Zlaté rybičky" aneb jde platit náhradu škody za res nullius?

Author(s): Jaroslav Knotek / Language(s): Czech Issue: 3/2006

S účinností od 14. dubna tohoto roku došlo k významově poměrně zásadní novelizaci zákona č. 115/2000 Sb., o poskytování náhrad škod způsobených vybranými zvláště chráněnými živočichy, ve znění pozdějších předpisů (dále jen zákon o náhradách). V čem lze význam této novely provedené v rámci zákona č. 130/2006 Sb., kterým se mění zákon č. 154/2000 Sb., o šlechtění, plemenitbě a evidenci hospodářských zvířat a o změně některých souvisejících zákonů (plemenářský zákon), ve znění pozdějších předpisů a některé další zákony (dále jen novela) spatřovat? Nota bene, jde-li o novelu spočívající v doplnění všeho všudy sedmi slov do stávajícího zákona o náhradách? Je to právě v samé podstatě provedené novely, která výrazně vybočuje z dosavadních mantinelů zákona o náhradách a možná nejen jich.

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"Отварящата" функция на Конституцията на Република България

Author(s): Galina Pisarska / Language(s): Bulgarian Publication Year: 0

This article aims to examine the theoretical legal aspects of one of the main functions of the Constitution of the Republic of Bulgaria, which opens the national legal order to the direct impact of international law. The so-called ‘opening’ function marks the implementation of the norms of international law into the Bulgarian legislation and their interaction. Outlining the characteristics of the other functions of constitution, its significant place and role in the life of society and state is analyzed.

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#METOO AND US POLITICS: ANALYSING THE TWITTER CONVERSATION

Author(s): Vittoria Bernardini / Language(s): English Issue: 3/2021

The #MeToo movement has had a profound cultural impact on US society, and notably on US party politics. While many studies have addressed the #MeToo-related controversy arising from the Brett Kavanaugh nomination to Supreme Court Justice in 2018, the relationship between #MeToo and US politics before this event has remained understudied. This article, therefore, addresses this gap by looking at the role of politics at the beginning of the #MeToo movement. Focusing on the first six months of online activity on Twitter (October 2017 – April 2018), over 2 million tweets with the #MeToo hashtag are analyzed to identify the main activity patterns across the dataset and to gain insight on user behavior and participation in the conversation. Results point to the weaponization of #MeToo in the political context from its inception. It is suggested that #MeToo reflects the polarized political climate in the US and that it can be conceptualized as part of the wider “culture wars” (Hunter 1991) that characterize the public debate.

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(In)Efficient Use of International Law: Case Study of the Dayton System in BiH

Author(s): Tomáš Jungwirth / Language(s): English Issue: 4/2013

This paper aims to analyse the existent legal and political system of Bosnia and Herzegovina from the viewpoint of effective applicability of international law. It first deals with the general issue of the relationship between international law, domestic political structures and the individual, consequently moving to the specific case study of the Dayton system. The question arises whether such an excessive intervention was at all capable of establishing a stable institutional framework and of uprooting the enmities between the sides to the conflict. Certain criteria for the effective application of international law are drafted, in light of which the presented data are evaluated. A critical conclusion follows, defining the key setbacks of the Dayton system and hinting to possible alternative approaches.

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

Author(s): Nedim Kulenović / 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”.

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

Author(s): Nedim Kulenović / Language(s): Bosnian

U ovom veoma kratkom osvrtu razmotrene su posljedice koje dalja institucionalizacija „diferenciranog građanstva“ ima po prava pripadnika grupe koja se prethodno imenovala kao „Ostali“. Iako nisu provedena dublja teorijska razmatranja samog koncepta „diferenciranog građanstva“, i njegove opravdanosti u bosanskohercegovačkom kontekstu, uočen je značajan stepen nekonzistentnosti u njegovom modeliranju u Preporukama ekspertne grupe. Naime, ovakvo rješenje može rezultirati daljim različitim postupanjem, sada između dvije kategorije „Ostalih“, odnosno pripadnika nacionalnih manjina i etnički neopredijeljenih, a čije je barem pravno opravdanje veoma upitno. Ako je ovo zaista bila namjera Ekspertne grupe takva vrsta sistematskog isključivanja jedne kategorije građana iz participacije u strukturama vlasti FBiH zahtijevala bi naročitu vrstu opravdanja – kako s aspekta prava, tako i političke teorije – a koja ni u Preporukama, ni u Analizi, nije ponuđena. Ukoliko je, međutim, ovo posljedica omaške u formulisanju preporuka, nužno je pristupiti njihovom temeljitom usklađivanju, od definicije Federacije pa na dalje, s obzirom da se ova „greška“ spominje u više od dvadeset preporuka. Mora se na kraju upozoriti da još uvijek postoji teorijsko neslaganje u pogledu izvršenja balansiranja između etničkog i građanskog elementa u ustavnopravnom uređenju BiH. To je rezultiralo različitim institucionalnim modelima, od onog na nivou države i entiteta, do Brčko Distrikta BiH, odnosno Kantona Sarajevo, koji se karakterišu različitim intenzitetom etniziranja prava, odnosno diferenciranja građanstva. Nužno je biti pažljiv kako se u daljim pokušajima pluralizacije postojećih etnokratskih aranžmana na nivou entiteta ne bi prekludirala mogućnost da se naročito u kantonima – koji će sada postojati kao pojedinačne „laboratorije etničkog upravljanja“ – osigura veći spektar prava pripadnicima nacionalnih manjina i etnički neopredijeljenim od onoga što je moguće ostvariti na Federalnom i višim nivoima vlasti.

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(Nejen) tržní řády v ústavní pasti

Author(s): Stanislav Kadečka / Language(s): Czech Issue: 1/2001

The article points to the important (for law theory as well as praxis) problem of position of substatutory law in relation to the constitutionally guaranteed freedom of business activities. The author mentions especially the article 18 of the Trade Act and the article 26 of the Charter of Fundamental Rights and Freedoms. The article also describes as though new law situation - the article 10 of the Municipal Act, and the article 96 of the Protection of Public Health Act. The text is then concerned with some (in their conclusions) different findings of the Czech Constitutional Court and their consequences. Finally author of the text summarises and concludes that there is necessity of change of judicature of the Constitutional Court and presents two possible ways of this change.

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(Nie)konstytucyjne przeciwdziałanie przestępczości na tle seksualnym wobec nieletnich

Author(s): Natalia Woszczyk / Language(s): Polish Issue: 3/2018

The article addresses the issue of alterations to the bill preventing sexually motivated crime in relation to the constitutional rights. The author presents and analyses the new regulation with emphasis on the unknown for the polish legal system solutions such as Sex Offenders Registry which will be accessible in two versions: with limited access and to the general public, and a publicly available map of sexual crime threats. What is more, doubts are raised as to the effectiveness of the measures to reduce sexual offenses.

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(Nie)zatarte skazanie osoby ubiegającej się o pozwolenie na broń – analiza przypadku

Author(s): Adam Pachucki / Language(s): Polish Issue: 13/2021

Under Polish law a person applying for a firearms license (the author uses the example of a person applying for a firearms license for hunting purposes) is obliged to attach thereto medical and psychological certificates confirming that an applicant may bear a firearm. These certificates may be challenged on appeal by the competent police authority, only on the grounds of an expunged conviction. Police authority can legally state that such conviction itself implies a defectiveness thereof, despite the lack of any other allegations, evidence or information that the candidate should not keep and bear a firearm. According to the law, an expunged conviction should not have any negative legal consequences, the record of the sentence is deleted from the register of offenders, and such conviction shall be considered void. Based on the current jurisprudence, the author discusses the problems of the current wording of the legal provisions, shows possible abuses, indicates the violation of the institution of expungement and proposes changes to the provisions that could reduce the problems mentioned in the article.

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(NON)RELIGIOUS FREEDOM: A CRITICAL PERSPECTIVE ON THE CONTEMPORARY UNDERSTANDING OF FREEDOM OF CONSCIENCE AND RELIGION

Author(s): Rafał Prostak / Language(s): English Issue: 71/2021

Nowadays, liberty of conscience as an inalienable right is a standard of demoliberal constitutionalism. It is an obvious component of a well-organized society and state. However, at the very beginning of its presence in the political discourse, it was more a product of Christian theology (the free conscience perceived as a gift of God) than a legal category; more an endowment of divinity than an intrinsic human value. In the contemporary, secularized world, our understanding of freedom of religion includes not only free exercise of religion but also freedom from religion. An increasing number of non-believers changes our expectations of the state that is obliged to protect the freedom of conscience of all citizens regardless of their beliefs. The goal of the article is to consider the difficulties faced by people with a theistic worldview in the reality of a state founded on the principle of ideological neutrality.

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(R)EVOLUCIJA IDEJE USTAVNE VLADAVINE

Author(s): Edin Djedović / Language(s): Bosnian Issue: 19/2018

The basic idea of constitutionalism is the ideal of constitutionally limited authority. However, through the longest period of human civilization as a form of government appears monarchy which was based on the postulates of the Divine origin of both the government and the ruler and his undeniable and unlimited power. The evolution of the idea of citizens as the original bearers of sovereign authority and the need of government constraints evolved gradually, especially during the Middle Ages, to bring about the true revolution with the enlightenment of the 18th century when it became the theoretical and positive legal basis of contemporary democratic constitutions. In this (r)evolutionary emergence, the Declaration of Independence of the United States from 1776 and the Declaration of the Rights of Human and Citizen of 1789 played a crucial role as the crown of the struggle for equality and freedom of citizens on the universal values of natural law.

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(Не)уставност и (не)законитост уредбе о минимуму процеса рада у образовним установама у Републици Српској

Author(s): Goran Marković,Dimitrije Ćeranić / Language(s): Serbian Issue: 1/2012

In 2012 Government of Republic of Srpska adopted the Regulation on minimum work process and the method of its providing in the educational institutions and institutions of school and student accommodation. Government predicted that the minimum of work process has to be secured in these branches in the case of a strike. The authors deny existence of the constitutional and legal basis for the adoption of this regulation, arguing that the Government is in breach of the Constitution and the Law on strike. Denying the Government’s arguments, the authors argue that there is a legal basis for implementation of the procedure in front of the Constitutional Court of Republic of Srpska in order to negate constitutionality and legality of the Regulation.

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0 uzrocima krize zajedništva i različitim idejnim koncepcijama

Author(s): Zdravko Tomac / Language(s): Croatian Issue: 04/1982

The widely differing opinions voiced on the causes of the crisis in Yugoslav commonness are the result of different ideological tendencies. The author analyzes those views which seek the causes of the crisis in the constitutional model of Yugoslav federalism and argues against such concepts. The article points out to certain substantive deviations in the practical functioning and development of some institutions from their concept as defined in the constitution and considers them the main causes of the difficulties in realizing Yugoslav commonness. Detailed account is made of the reasons why the character of statehood of the constituent socialist republics has strengthened, why the notions of state and nation are being increasingly identified. The causes of group-property tendencies are outlined, with special reference to the problem of realisation of the constitutional concept of the federation. The conclusion is suggested that the main cause of the crisis of commonness lies in the growing tendency reduce Yugoslav federalism to relations among republic-states in the tact that almost all interests are mediated through the republican states, and in the failure to evolve in practice the constitutional model of association and linkage of different interests through self-management and without the mediation of republican states.

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100 YEARS OF CONSTITUTIONALITY CONTROL IN ROMANIA

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100 YEARS OF CONSTITUTIONALITY CONTROL IN ROMANIA

Author(s): Daniela Cristina Valea / Language(s): English Issue: 02/2018

One of the most important guarantees of the rule of law is the constitutionality control of laws (and of the government ordinances). In Romania, we may speak about a real system of control of constitutionality starting with 1912 (just a little over 100 year!). The recognitions as a legal mechanism were made by Romanian Constitution of 1923. During the period of the communist regime, the constitutionality control was reduced to a formality. After the Revolution of 1989, the constitutionality control has been reintroduced into the Romanian constitutional system. But the Romanian Constitution-maker of 1991 gave up the traditional form of the constitutionality control, concentrated, exercised by the supreme court alone, and chose the “European model”, respectively a system where the constitutionality control is exercised by the Constitutional Court, a specialized body, organized only for this purpose, and which is not part of the judiciary power of the State. This paper represents a short review of (a little over) 100 year of constitutionality control in Romania.

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130 години от рождението на професор Любомир Владикин - конституционалистът държавовед

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130 години от рождението на професор Любомир Владикин - конституционалистът държавовед

Author(s): Blagoy Deliev / Language(s): Bulgarian Issue: 2/2021

Prof. Lubomir Vladikin is a lawyer, writer, public figure, scientist. Writing about his life is a difficult task. There will always be objections of inexhaustibility and bias. His scientific works and interests include law, sociology, political science and literature. In his works and speeches, Prof. Vladikin does not hesitate to demonstrate his beliefs and biases for the country in which he lives and for the country in which he wants to live. The evolution of the state is part of the development of constitutionalism. This is his topik, which he defends and develops. His contribution to the general theory of the state and law and to constitutional law is indisputable. Naturally, Prof. Vladikin has scientific and life opponents. Assessments of a person's deeds can be different, especially when they are openly demonstrated. These assessments may or may not be shared. This is what gives the modern state the quality of "democracy". The opposite is against the individual and against the state.

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140 години от създаването на Търновската конституция

Author(s): Hristo Paunov / Language(s): Bulgarian Publication Year: 0

Contemporary Bulgarian constitutionalism has deep and solid foundations laid in the National Revival era. On April 16, 1879, representatives of the Bulgarian people, gathered in the old Bulgarian capital – Tarnovo, adopted the Constitution of the Bulgarian Princedom, known as the Tarnovo Constitution. It is the first Bulgarian founding act that revived Bulgaria for a new political life, paving the way to its modern European statehood. This paper is dedicated to the 140th anniversary of the adoption of the Tarnovo Constitution.

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16 април - ден на Конституцията, българските юристи и съдебни служители

Поздравление на председателя на СЮБ г-н Владислав Славов;Слово на председателя на Конституционния съд г-жа Павлина Панова

Author(s): Pavlina Panova,Vladislav Slavov / Language(s): Bulgarian Issue: 3/2022

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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.

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1961 Anayasa Referandumu ve DP Tabanı

Author(s): Fatih Tuğluoğlu / Language(s): Turkish Issue: 24/2019

On May 27, 1960, the national unity committee, which seized power under military intervention, invited universities to refer to constitutional lawyers for the preparation of a new constitution. In the prepared 1961 constitution, it was desired to find solutions to political problems and uneasiness, economic troubles and social problems in the period when the DP was in power. The adoption of the new constitution, which was presented to the public with the referendum, was deemed necessary to return civilian life. Although the referendum activities, which started in an environment where the DP’s political life was terminated, seemed to be the scene of the propaganda of supporters of the constitution, the AP was set up to appeal to the DP voters, especially in the Western Anatolia region. The National Unity Committee has also sent its members to visit the country to discuss with the people and asked the public to accept the new constitution for the new period’s needs and the political controversies of the old era. The fact that the Constitutional Court had a numerical superiority in the founding parliament, which prepared the constitution, and the speeches of the CHP’s spokespersons who had adopted the constitution, caused the DP base to vote in a bad way. The result of the referendum was unexpectedly different because of the negative propaganda and the election of the DP, which were undergoing the secretly, and the participation was high, but not even 70 percent of the vote. The majority of negative votes were the military coup of the DP base and a reaction to the living process. While the result was welcomed in AP, which regarded the future as a hope for power, the National Unity Committee considered that the constitution was acceptable. The outcome of the referendum campaign with the support of the state and the support of the three parties is similar to that of the vote in the elections of 1957, and it is understood that the provinces that supported the DP voted no to the constitution.

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