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The fall of communism in the Middle and Eastern Europe meant establishing new constitutional and political systems and the selection of a new government instead of, the existing, parliamentary system. The position of constitutionalists in terms of the need for a strong institution of the president of the republic in the process of transition and the balance of powers between various political subjects resulted in establising semi-presidential system of government in many of those countries. In the Russian Federation, with the first changes of the constitution, at first only certain elements were accepted which was followed by the acceptance of the whole concept of the semi-presidential system. The constitutional model of this country is in compliance with the semipresidential system criteria – it has developed a dual structure of the executive power and a popularly fixed term president who is politically independent from the Parliament. However, constitutional and political practice in Russia shows that in the constellation of powers within the dual structure of the executive power, the head of state plays a dominant role. The head of state dominates in the executive power, but also in the political system as a whole, making the system of government in practice being predominated by certain characteristics of the presidential system.
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The Constitution is a document that comes into being at a particular historical moment. It is the basic order of a State or - in a broader sense - of an extra-state coherent system that exercises public power over individuals, such as the supranational European Union. A Constitution is a normative entity that is intended to define the fundamental organizational structure of the State or the supranational community. It is intended to enable the fulfillment of its tasks organizationally, by creating an institutional system, and to determine its objectives. The latter is done through the recognition of the fundamental values of this order, which - in a true constitutional order - is anthropocentric, i.e. based on the three values of human dignity, freedom and equality. The question arises: is the function of the Constitution to be considered only from the present or is the future also to be included? Are the normative definitions of the Constitution only related to the time of today or do they also apply to the time in the future?
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The meaning of the phrase legal conflict of a constitutional nature is not defined by the Constitution, but the Constitutional Court, in its jurisprudence, specified the content of this attribution. Thus, the legal conflict of a constitutional nature involves concrete acts or actions by which one or more authorities arrogate to themselves powers, attributions or competences which, according to the Constitution, belong to other public authorities or the omission of some public authorities, consisting in declining the competence or in the refusal to perform certain acts that are part of their obligations. The Constitutional Court recalled the fact that it found, over time, behaviors contrary to the mentioned principle, and ruled on the obligation of constitutional loyalty, of loyal constitutional behavior that governs the exercise of the powers of public authorities in a state of law. In this study, we analyze aspects of doctrine and jurisprudence regarding conflicts of a constitutional nature between state authorities and the meanings of the concept of “loyal constitutional behavior”.
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The context related to the need for real protection of persons with mental disabilities was generated by an interpretation given by the decision of the Constitutional Court no. 601/2020. The consequence generated by this assessment of the constitutional judge led to the radical modification of the texts in the field, adopting in this respect the law nr. 140/2022. The generous principles arising from that piece of legislation regarding the exercise of civil rights by persons who have a limited capacity to discern do not have a judicious reflection in practice as well. If the good practices in this field had some limits until the moment of the appearance of the interpretation given to the constitutional litigation, after this moment the judicial proceedings were suspended, and at this moment they determine questionable solutions. Moreover, the administration of justice cannot be classified as a support for the litigants in these situations, in certain cases the so-called right turning into a real chore for the one with limits of discernment and implicitly for the members of his family who try to replace him in terms of exercising the prerogatives arising from the capacity to exercise. It seems to me that it is necessary to re-establish the modalities of State intervention in this regard, both administratively and judicially. The limits of restricting the exercise of a right must be proportionate to that reason which determines that intervention, but the right of assessment should be a subjective one, the assessment having to be broader for the magistrate and not an objective one, established under rigid conditions such as those now identified.
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The rule of law is at the center of contemporary constitutionalism. It means the binding and exclusive application of law by the institutions endowed with public power. These processes, acts, omissions and also factual processes, must comply with the law. There must be no lawless spaces. Political and legislative discretion is also not free of law. The choice of means, the timing of their use and their content are genuine tasks of politics, but their use, in whatever variant, must not contradict the law.
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The article analyzes the foreign experience of consolidating the right of the people to participate in lawmaking. The following conclusions were made in the course of the research: in general, there are two common approaches to determining the minimum number of persons (only citizens who have the right to vote): proportional (the proportion of the total number of voters is set); quantitative (a clear number of voters is determined, whose initiative is sufficient to be considered “popular”. Foreign experience in the forms of people’s participation in law-making is extremely multifaceted, as it provides a wide variety of forms, which we think should be classified according to the criterion of bilateral obligations and the level of inclusiveness of Parliament in relations with the people. It should be noted that we see the greatest efficiency in the implementation of such forms of direct participation of the people in lawmaking, namely: legislative initiative; referendum; activity of consultative and advisory bodies, and the people’s veto should be considered as a kind of referendum, with a complex structure and mechanism for implementation. The existence of the limits of people’s access to participation in law-making is analyzed and it is determined that most of the Constitutions of states declare the inadmissibility of putting to a referendum issues related to: tax and budget system, international activities, amnesty. Instead, we believe that the wording of the Swiss Constitution is extremely accurate. The first set of issues on which the people have the right to initiate legislation is identical to the range of issues considered by Parliament. As for the Swiss Constitution, it gives extremely broad initiatives to the people not only at the level of the state as a whole, but also at the level of the cantons. Thus, we conclude that the right of the people to participate in lawmaking is an integral part of the system of democratic rights and freedoms, and the trend we see based on the analysis of the Constitutions of democracies shows a trend towards expanding models and forms of such participation. what should be taken into account during the constitutional and legal regulation of this issue in Ukraine.
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The article examines in critical perspective the powers of public prosecutors under art. 145 of the Judicial Authority Act to pursue preliminary inspections in all cases under their jurisdiction. The development of the relevant legislation is examined in historical perspective and in the context of the Constitution and the European convention on human rights. The legal premise that the prosecutors dispose of the same powers irrespective whether they act within or outside the context of criminal justice contradicts the constitutional principle of proportionality in the restriction of human rights. In particular the prosecutors’ powers to pursue preliminary inspections to gather sufficient information about a perpetrated crime instead of launching an official pre-trial inquiry under the Criminal Procedure Code violate the constitutional defence rights and the separation of powers.
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The scientific article is devoted to guarantees of compliance with professional ethics by judges, prosecutors and lawyers. The purpose of the article is the scientific development of the problems of guarantees of compliance with the professional ethics of the judge, prosecutor and lawyer by defining the concept of guarantees of compliance with professional ethics, defining the main varieties of these guarantees, as well as providing their general characteristics. The scientific article formulates the concept of guarantees of compliance with professional ethics as special legal means aimed at ensuring compliance of professional activity and out-of-service behavior of representatives of relevant legal professions with ethical requirements, prevention of violations of professional ethics and elimination of their negative consequences. The main types of guarantees of compliance with professional ethics by judges, prosecutors and lawyers, namely: ethical selection; making an oath; development and approval of codes of ethics; study of ethics; activities of the relevant authorized bodies; responsibility for ethics violations. It is concluded that these guarantees are typical for representatives of various legal professions, due to the unified legal nature of the rules of professional ethics for lawyers. In view of this, the further development of such guarantees is seen in their unification and improvement of the regulatory regulation of the professional ethics of judges, prosecutors and lawyers, as well as the practice of its application. It is proved that these guarantees constitute an orderly system, that in unity and interconnection allows to establish certain ethical rules and norms, to bring them to the attention of interested persons, to determine the state of their observance and to ensure the most complete implementation in professional activity. Based on the analysis of the current legislation of Ukraine on the judiciary and the status of judges, the prosecutor’s office and the bar examined in detail the content of each of these guarantees. Their influence on the observance of professional ethics of judges, prosecutors and lawyers is determined.
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The article is devoted to the study of the influence of the legal regime of martial law on ensuring the constitutional right to secrecy of correspondence, telephone conversations, telegraph and other correspondence. Martial law and restrictions on human rights and freedoms are not common in any country in the world. However, today, in connection with the imposition of martial law in Ukraine due to Russia’s armed aggression against Ukraine, this topic is quite relevant. The author investigates the essence of restrictions on human rights and freedoms in martial law, legal grounds, models, conditions and principles of restrictions on human rights and freedoms in martial law, in particular the right to secrecy of correspondence. The foreign experience of martial law in the country and restrictions on the right to secrecy of correspondence and other human rights and freedoms under such conditions are considered. The mechanism of martial law in Ukraine or in some of its territories is analyzed, its shortcomings are identified, which can significantly affect human rights and freedoms in martial law. A comparative description of the Ukrainian and foreign mechanisms of martial law and restrictions on human rights under martial law has been made. In order to avoid unjustified or illegal restriction of the human right to secrecy of correspondence in wartime, substantiated recommendations are provided to eliminate the shortcomings of the mechanism of martial law in Ukraine.
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This paper aims to answer the following research problem: what are the models of reasonable (proper) implementation of public expenditure arising from specific constitutional rules, and what are the standards for such spending? The authors present a thesis that the constitutional principle of legality, as well as the principle of public finance as a good which is protected constitutionally, sets general models, which consequently determine the standards of reasonable (proper) spending of public funds in the broad sense, i.e. in the context of legality and economy (purpose, economy, effectiveness and efficiency). Notably, these models and standards meet the postulate of complete financial control, i.e. at every stage of the budget procedure (budget design, planning and execution). The article uses so- called non-reactive research methods, based on the analysis of the content and availability of source information, i.e. theoretical and legal publications as well as legal regulations (especially constitutional ones) crucial from the point of view of the selected subject.
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In positive law, restriction of employment in the public sector implies the absence of autonomy of employers in the public sector when establishing a fixed-term and indefinite employment relationship, or when hiring a person to perform temporary or part-time work outside the employment relationship. Save for exceptional situations, employers in the public sector can establish an employment relationship for a definite and indefinite period of time, or hire persons on a temporary basis outside the employment relationship, only after obtaining the approval of the Commission of the Government of the Republic of Serbia which is entitled to give consent for new employment and additional employment in institutions which are users of public funds. The author analyzes the constitutionality of provisions that regulate the restriction of employment in the public sector. The question is whether the norms related to the regulation of employment restrictions in the public sector are in conflict with the right to work and the prohibition of discrimination prescribed in the Constitution of the Republic of Serbia.
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This study examines the types of protection against discrimination depending on the legal, judicial and institutional mechanisms. A study was made on the administrative legal protection as a guarantor of the state for equal treatment of all citizens. Both the national system for protection against discrimination and the international legal system have been studied. Conclusions are drawn about the activity of the Commission for Protection against Discrimination, as the main legal regulator in the application of the administrative legal protection against discrimination.
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This article is an attempt to outline and explain the essence of disputes on the legal solutions adopted in the field of the functioning of the judiciary in Poland after 2015, which have been subject to critical assessment by international bodies and representatives of Polish jurisprudence. The constitutional crisis in Poland concerns the functioning of the Constitutional Court, the Supreme Court, common and administrative courts, and the National Council of the Judiciary. The last one is not an organ of the judiciary but its constitutional powers concern the judiciary, and the changes which have been made in the method of appointing its members constitute one of the essential elements of the constitutional crisis in Poland. Therefore, to show the complexity of the problem more fully, the article will discuss legislative activities, the content of amendments to legal acts, and the consequences brought about by introducing defective regulations into the legal order of the Third Republic of Poland, both at the national and international level.
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The influence of constitutional law and especially of fundamental rights on civil law is a development that characterizes the dynamics of a constitution and shows with clarity the special orientation of the German Basic Law to the triad of fundamental values human dignity, freedom and equality. Fundamental rights are qualified not only as subjective rights of defense against state intervention, but also as objective values that radiate throughout the legal order.Originally, based on the text of the Constitution, direct third-party effect, i.e. the direct influence of the Constitution and fundamental rights on civil-law relationships, was seen only in the exceptional case of Article 9 (3) sentence 2 of the Basic Law. At the same time, the so-called indirect third-party effect was found to be decisive for German law. This means that civil laws, in particular their so-called general clauses such as good faith or the prohibition of immoral damage, must be interpreted and applied in the light of fundamental rights. In addition, there is the further development step, namely that due to the value character of the fundamental rights, the so-called duty of the state to protect is recognized, which means that the state must actively protect the values of the fundamental rights through its own laws. In this context, this means that the state must structure civil laws in such a way that they meet the requirements of fundamental rights. In more recent times, there has been an additional development, namely that private individuals as such must also directly observe fundamental rights if they perform special services for society, in particular provide a communication space and ensure society's participation in social life. All in all, the intensification of the protection of fundamental rights by including private individuals directly or indirectly is a sign that the central concern of the dynamically developing constitution is the efficiency of the fundamental order of values of the Basic Law,which centers on human dignity
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There are various bodies making up the system for protecting the rights of an individual in a democratic state. An example is the ombudsman. In Central and Eastern Europe ombudsmen were appointed during the late socialist era or during the period of democratic transformations. An example is Poland, where the first ombudswoman was appointed in 1987. Since 2006 Poland has had another institution with a similar, though more targeted profile – the Ombudsman for Children. The aim of this short study is to carry out a brief analysis of these two institutions.
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Dictionary of the Polish language, defines lobbying as exerting influence on state authorities in the interests of certain political, economic or social groups. With its genesis, this phenomenon, which has its origins in ancient times, it was already then that individual social groups sought to exert the greatest possible influence on legislative decisions, not shying away from lawlessness. However, conceptually, lobbying originated in the United Kingdom, where the word is used to describe activities undertaken in a place - a lobby. At the same time, the most developed is restively lobbying in the United States or the European Parliament. In Poland, lobbying was regulated by law in the Act of July 7, 2005 on lobbying activities in the lawmaking process (Kubiak, 2013, pp. 131-132). Thus, since then, lobbying has been a legally regulated institution. Since then, however, the number of lobbyists in parliament has been declining, and this is to such a state that, if the current trend continues, lobbyists in the parliament of the Republic of Poland will disappear altogether in the coming years. This state of affairs forces one to ask whether it is the case that lobbyists in Poland have ceased their activities, or whether it is the case that their activities have taken a less transparent form. While the first of the above-mentioned situations is not dangerous -probably because its occurrence borders on the miraculous - the second situation raises many concerns, primarily because of the possible dangers associated with the activities of lobbies. Against this background, the reason for the successive decrease in the number of lobbyists in relation to the scope of their activities in Poland will be examined. The above findings will be examined on the basis of theoretical-legal and dogmatic-legal methods.
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The coding is not only the expression of the political will of the law maker, it firstly is a complex juridical technique for the choosing and systematization of the normative content necessary and adequate to certain social, political, economic, institutional realities. Since Constitution is a law, yet it nevertheless distinguishes itself from the law, the problem is to establish which juridical norms it contains. The solving of this problem needs to consider the specific of the fundamental law and also of the requirements of the coding theory. The determining with all scientific stringency of the normative content of the Constitution is indispensible both for the removal of any inaccuracy in delimiting the differences from the law, for the stability and predictability of the fundamental law and last, but not the least, for the reality and effectiveness of its supremacy.In our study we realize an analysis based on compared criterions of the techniques and exigencies for the choosing and systematization of the constitutional norms with reference to their specific, to the practice of other states and within a historical context. The analysis is aiming to the actual proposals for the revising of the Constitution.
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Why do we need to talk about Cuza and not necessarily through the prism of its historical dimension but, above all, as an importance for the complex process that is taking place today in Romania along the lines of redefining the fundamental institutions of the State. Romania has become a member of the great European family, already going through an integration stage of over 16 years. However, the Romanian society and, to the same extent, the state institutions are still devastated, both as a result of the events at the end of 1989, and due to the uncontrolled convulsions that spread in all the existential components of the Romanian people. In all the difficult moments that the Romanian people went through, and the one we are experiencing now, unfortunately, is not too happy either, people of spirit invoked, as a reason for encouragement, hope and spiritual strength, the glory of the ancestors. Yes! We believe that the memory of the great statesman that was Alexandru Ioan Cuza and his great deeds could inspire today's political class to achieve a government much more attached to the national values and interests of the Romanian people. Cuza put, above all else, the national interest and when he could no longer serve it, he gave up with dignity the noble mission with which the people invested him, assuming a tragic destiny, animated, however, by only one desire:"to "May the country be better." How many of our dignitaries today would be capable of such a sacrifice? At the same time, through his deeds and through everything that shaped his personality as a skilled leader and loyal to the country, Al. I. Cuza proves to be a rather inconvenient factor even for today's occult circles which, unfortunately, have largely succeeded in enslaving the country to foreign interests. Cuza still maintains in the national consciousness, at least as an attitude, the idea of justice and honour, of faithfully serving the nation to which you belong, of dignity and non-dependence on foreign powers, of rejecting and sanctioning acts of treason and complicity against the national interest, etc. Precisely for this, a certain post-December historiography and a part of the media that I would call foreign to the nation and the country, tried to minimize the luminous figure with which the ruler entered the memory and consciousness of our nation. In other words, fire him. It is not the intention, declared "generous", to objectively reveal the historical past, that motivates these actions, it is not such a goal that pushed some so-called historians to bring to the forefront of social receptivity minor, unimportant facts from private life of the ruler and, at the same time, to keep silent his political and administrative acts that define his quality as leader. If we consider that, in recent years in Romania, the privileges and interests of some foreign powers have been reactivated, which Cuza, in his time, had succeeded, to some extent, in neutralizing them, we fully explain why his personality became the target of such aggressive attacks. Any other explanation would do nothing but insult our conscience. Here are just a few reasons why Cuza should not be forgotten and his personality and, above all, his deeds, which laid the foundations of the modern Romanian state, imprinting on it a development and an evolution in step with the requirements of the European progress of that time, must let us bow with gratitude and piety.
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For a long time, political power was the exclusive attribute of some individuals or groups of individuals who adjudged and exercised it in a discretionary and absolutist manner, the masses of subjects not being recognized with any rights in this line. Their condition, in general, was at the sovereign's discretion. Acts of disobedience were sanctioned with great cruelty, in public procedures, with the aim of continuously feeding the feeling of fear, as the only support of the order established by the sovereign, at his pleasure. However, history has recorded countless facts and events that contested, over time, such a form of government. Even if for the time being they failed in terms of the intended goal, their importance is still remarkable, at least in the fact that they continuously maintained and developed the trust and hope in a social order in which the will of the masses represents the foundation of power.
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