„Többségvédelmi” szempontok érvényesülése a nemzeti kisebbségi jogok alkalmazásában. Értelmezések és viszonyulások az alkotmánybírósági gyakorlatban

Author(s): Attila Varga / Language(s): Hungarian Issue: 3/2020

The jurisprudence of the Romanian Constitutional Court does not abound in cases solved in connection with the legislation on the rights of national minorities and the minority rights guaranteed in the Constitution. In the course of constitutional practice related to minority rights, a strict textualist conception of role prevails and follows its previous case-law practice. The minority rights appear partly as fundamental rights and partly in the context of the rules on state organization. The constitutional interpretation of these rights is rigid, sometimes narrowing. At the same time, in addition to the textualist interpretation, the practice of the Constitutional Court implies possibilities to guarantee these rights. The presentation of this approach is carried out based on the detailed analysis of four decisions of the Constitutional Court, examining the issues of language rights, minority education rights, the use of national symbols, and the recently adopted so-called Act on Trianon.

„Tożsamość kościoła” jako kryterium uznania sprawy za sprawę „wewnętrzną” kościołów i związków wyznaniowych w wyrokach niemieckiego Federalnego Trybunału Konstytucyjnego. Kilka uwag krytycznych

Author(s): Paweł Polaczuk / Language(s): Polish Issue: 57/2022

The author analyzes the reasoning of the German Federal Constitutional Court regarding the interpretation of the phrase “its own affairs” (own affairs) of Article 137 (3) of the Weimar Constitution in conjunction with Article 140 of the Basic Law. In its judgments of 16 October 1968 (BVerGE 24,236) of 21 September 1976 (BVerfGE 42, 312) the Court refers to the extra-constitutional concept of church identity as a criterion for considering a particular matter as belonging to the internal affairs of the church by “nature of things”. Disputes concerning these matters are excluded from the state’s jurisdictional authority in the public law of the Federal Republic of Germany. However, an analysis of the Court’s reasoning reveals numerous shortcomings. According to the author, the concept of church identity does not make the formula of the nature of things adequate to the post-war political conditions. However much the Court examines the impacts of church activity in the “external” sphere, it does so based on biased historical sources and administrative agreements. The interpretation of the concept of “one’s own affairs” is also burdened by the abandonment of the reference to the scope of Article 4 of the German Constitution and Article 137 paragraph 3 of the Weimar Constitution incorporated into this normative act.

„Zahozené ústavy“ a jejich záhadní autoři

Author(s): Ladislav Vojáček / Language(s): Czech Issue: 1/2017

As a starting point, the article provides summary of existing information about the draft constitutions or, more precisely, about the concepts of future constitution of the Czech countries and Slovakia which occured in 1917. These drafts were prepared in the Czech surroundings and they further developed the principles of the constitutional declaration of the 30th of May 1917. Therefore, they presumed that the Habsburg monarchy would be preserved in a reorganised form and there would be an area consisting of the Czech countries and Slovakia which would exist within the monarchy. The individual concepts were anonymously written by the members of a group of experts, evidently formed on the initiative of Antonín Švehla. They were all published after the establishment of the Czechoslovak republic, yet their authors (except František Weyr) remained unknown. With the help of archive materials, the author presents some new findings regarding the mystery about the authorship of these documents. These findings complement, confirm, but also conflict with some partial conclusions made by Martin Kučera, who recently dealt with these drafts thoroughly.

№322 “Everlasting Putin” and the reform of the Russian Constitution

Author(s): Maria Domańska / Language(s): English

On 10–11 March, the State Duma passed, in the second and third reading, the constitutional amendments bill, thereby concluding the next step in the constitutional reform announced by Vladimir Putin on 15 January. The most important amendment, announced at the last minute, was a ‘reset’ of the President’s terms of office (under the current Constitution, Putin could not run for president in 2024). The constitutional amendments are expected to take effect once they are approved by a ‘nationwide vote’ in April 2020. || The reform comes at a time of long-term economic stagnation, turbulent global markets, relatively low public support for the President, and growing disquiet among the elite about how the political situation will play out in the next few years. In this context, the haste in work on the reform, as well as violation of the procedures required under the Constitution, is indicative. There were also quite significant developments in the wording of the amendments in the period between 15 January, when Putin made his address to parliament, and 10 March, when the second reading of the bill was held in the State Duma. The finalised version suggests consolidation of the ‘super-presidential’ system and formal dismantling of the tripartite system of distribution of power. The reform is clearly one of the crucial elements of the succession in Russia; however, the wording of the bill still does not determine definitively which political scenario the Kremlin will eventually choose.

Специалните разпоредби на закона за мерките и действията по време на извънредното положение, обявено с решение на Народното събрание от 13.03.2020 г. в областта на данъчното облагане в Република България

Author(s): Sasho Penov / Language(s): Bulgarian Issue: 1/2020

An Act on the Measures And Activities At The State Emergency was adopted by the Parliament inrelation to the growing pandemic COVID-19 in March 2020 and announced by a decision of the National Assemblyon 13.03.2020. The act stipulates the measures and actions to be taken by the executive power, employers andappointing authorities, as well as the enactment of provisions of different legal acts and individual administrativeacts during the state of emergency. The construction of the law consists of general provisions and transitional andfinal provisions. In the part of the transitional provisions of the act are included specific rules which expresslyrearrange the enactment and application of certain provisions of the current tax legislation. The article discussesthe the content of these norms and some debatable issues which they raise. Based on the purpose of the law, asderived by the motives of its bill and its content, it may be concluded that these specific rules implement taxdeductions only on particular taxes and for a limited circle of taxpayers. Different possible interpretations arediscussed when comparing the general norms of the law and the special provisions for tax matters.

Специфичности једног извора уставног права у Босни и Херцеговини

Author(s): Milan Blagojević / Language(s): Serbian Issue: 2/2013

In the science the sources of Constitutional law are usually divided into constitutions, the laws of parliaments, delegated laws, laws-decrees, decrees of executive power, parliamentarian rules of procedure, constitutional customs and constitutional conventions. If delegated laws, then laws decrees and constitutional conventions (which as a source of Constitutional law are typical to English constitutional-legal tradition) are excluded, the rest of sources of Constitutional law are known in constitutional-legal order of Bosnia and Herzegovina. But, what is specific for that order is a source of constitutional law known only in Bosnia and Herzegovina. It is agreement on transfer of additional competences on Bosnia and Herzegovina as a special source of constitutional law. It is not known in other countries in the world. This paper is devoted to this source of law and its specifities and essence are shown and explained here.

Співвідношення політики і права у конституційному процесі: проблеми теорії і практики

Author(s): A. A. Yakovlev / Language(s): Ukrainian Issue: 24/2016

The article examines the relation between political and legal determinants in the context of the modern constitutional amendment process in Ukraine. The author analyzes the influence of the political process and political culture on the process of modernization of the Constitution of Ukraine and the role of social and political transformations in formation of the legislative background of the state power system. The author substantiates the necessity of balancing political and legal logics of the modern constitutional process in order to adhere to fundamental principles of the state governed by the rule of law.

Співробітництво територіальних громад: теорія і практика

Author(s): P.M. Liubchenko / Language(s): Ukrainian Issue: 129/2015

Problem Setting. The paper analyzes the problems in the system of legal regulation of cooperation between communities, highlights the advantages and disadvantages of such cooperation in Ukrainian local government.Analysis of the recent researches and publications. The legal basis for cooperation in the field of local government are provisions of the Constitution and laws of Ukraine, by-laws. The organizational principles of communities cooperation, principles, forms and mechanisms of such cooperation and its promotion, financing and monitoring prescribed by the Law of Ukraine «On cooperation of local communities» 17 June 2014, which provides five possible forms of cooperation.Paper main body. The first form - delegation to one party of cooperation by another parties of cooperation execution of one or few tasks with transferring of appropriate resources - one of the most difficult to implement, therefore in Ukraine it is not yet implemented.The second form – realization of joint projects, involving coordination of activities between parties of cooperation and accumulating them for a certain period resources to joint implementation of appropriate measures - one of the most common. This form is popular because of its simplicity and versatility. Parties are determining the purpose of the project, terms and conditions of its implementation, a list of activities and conditions for their implementation, financial liabilities, other forms of local governments participation in implementation of the project and mechanism of coordination.The third and fourth forms aimed on the creation and maintenance of communal enterprises, institutions and organizations - joint infrastructure projects by parties of cooperation. This form of cooperation with the prospect of widespread use because it is aimed at ensuring effective use of resources of local communities based on common application available in one of the subjects of cooperation of municipal infrastructure.The fifth form – creations by cooperation parties joint body of management - complex, not properly regulated, so there is no example of this type of cooperation in Ukraine.The basic directions of improvement of legal regulation of relations in this area proposed by author. These are formation of associations (Union of Communities), public legal structures with significantly higher levels of integrated territorial cooperation to jointly address most or all local matters, however local communities united in an alliance should not lose their legal status.Conclusions. The inter-municipal cooperation relatively new direction of local government in Ukraine and therefore requires a broad coverage of positive practices and benefits of voluntary restrictions of their own local communities autonomy for improving the quality of life of citizens in the territory. Cooperation should be based on clear goals and desired by strengthening solidarity and partnership to achieve result.

Споразумението и принципите в АПК

Author(s): Tsvetan Sivkov / Language(s): Bulgarian Issue: 1/2012

The present article deals with the agreement and the principles of administrative process. Because the agreement is a new institute for administartive law, it is very important how the principles of the administrative process apply in the various types of agreements.

СРАВНЕНИЕ МЕЖДУ ТЕОДОСИЕВИЯ И ЮСТИНИАНОВИЯ КОДЕКС

Author(s): Gisella Bassanelli Sommariva / Language(s): Bulgarian Issue: 2/2020

The Theodosian Code has been object of many studies in the last thirty years, therefore repeating a comparison between Theodosian Code and Justianian Novus Codex seems of considerable interest. So topics that induce to consider CTh. 1.1.6 merely interpretative of CTh. 1.1.5 are studied in this perspective (the most cogent reason is represented by the issues arisen by the Commission in charge of selecting of the western normative material arrived in Costantinopoli almost certainly before 435). In conclusion it seems right to consider Codex published in 438 to be actually the achievement of the first part of the project elaborated in 429. At last the author formulate hypothesis about the reasons why the project of drawing up the Codex magisterium vitae had been abandoned (abandon decided in 435 when codes took the name of the emperor). In relation with Novus codex the author examines the project formulated in 528, the chancellery’s legislative activity during the code editing and the Summa’s provisions related to the legal writings. The conclusions achieved by the author are verified basing on laws regarding writings of classical legal authors dated between autumn of 529 and summer of 530. This exam suggest hypothesis about the decision of editing the Digesta.

СРАВНЕНИЕ НА РИМСКОТО ПРАВО С ДЕЙСТВАЩОТО ПРАВО И ПОЗИТИВНИТЕ МЕТОДИ ЗА УПРАВЛЕНИЕ НА КОНФЛИКТИ

Author(s): Gema Vallejo Perez,María Consuelo Morán Astorga / Language(s): Bulgarian Issue: 2/2020

Alternative procedures to the judicial way existed in the Roman Law to solve controversies; many of them emerged in the family environment and in the business world. At present, through Mediation, Negotiation and Arbitration (Alternative Dispute Resolution – ADR), more favorable agreements can be obtained for the interests of both parties. In addition, these ADR methods protect privacy and avoid distress that damage the health and destroys the future relationships between the parties. The objective of this work was to compare the alternative strategies existing in the Roman Jurisdiction with the ADR methods used at present. This meta-analytical study consisted in the bibliographic revision of roman documents to compare them with the sources of current Law. The results inform that, in both, Roman Law and Current Law, alternative strategies like ADR, offers important advantages to the judicial way. They can be highlighted: the preservation of privacy, the good reception of the resolution by the parties, a more positive management of emotions, and a preservation of good relations between the parties. Both in Roman times and in our times, these aspects have special relevance in the field of the family and also in private businesses.

Сравнителноконституционен преглед на статута на прокурорите в държавите членки на Европейския съюз

Author(s): Ivanka Ivanova / Language(s): Bulgarian Issue: 2/2022

The article contains a comparative review of the constitutional status of prosecutors in EU mem-ber states and identifies the main particularities of the Bulgarian model. In most of the examined countries the independence of the prosecutors is not a constitutional principle, and in some of them the prosecutor is not even a constitutional institution. Where constitutional safeguards are provided for the independence of prosecutors, they are always balanced through a clear separa-tion between the constitutional status of judges and prosecutors and by the provision of a correc-tive mechanism over prosecutors by the legislative or the executive branch of power. The Bul-garian constitution, instead of regulating the relations between the political authorities and the prosecutors, isolates them from each other, thus leaving the problem of prosecutor’s accounta-bility unsettled. In addition, by conferring a constitutional status to a wide range of topics that in the other EU member states are regulated by ordinary legislation, the Bulgarian constitution lim-its the potential for specific safeguards for the independence, accountability and the effectiveness of the prosecutors to be developed through the case law and through ordinary legislation.

Сравнителноправен анализ между българското и руското трудово право относно проблема за „невъзникналото трудово правоотношение“

Author(s): Ivaylo Ivanov Staykov / Language(s): Bulgarian Issue: 8/2018

The subject of the scientific study in the paper is the comparative analysis between the currentpositive legal regulation of the so-called „labour relationship which has not come into being“in theBulgarian and the Russian labour law. A comparison is made between the legislative regulationof this issue in the second sentence of Article 63 (3), Article 86 (7) and the first sentence of Article96 (4) of the Bulgarian Labour Code and Article 61 (4) of the Labour Code of the Russian federation.In the current Russian labour law this legal institute is known as „annulment of the labourcontract“, which is a right of the employer. In Bulgarian labour law the problem with the labourrelationships that have not come into being is resolved legally and technically by means of the useof a legal fiction.

Сравнителноправни аспекти на института на конституционната жалба в контекста на българския дебат

Author(s): Radoslava Yankulova / Language(s): Bulgarian Issue: 2/2021

The article is dedicated to the direct access of citizens to constitutional justice. The author outlines the genesis and the main characteristics of the constitutional complaint. The emphasis is put on the current state of the Bulgarian debate on direct access of citizens to constitutional justice and on the regulation of the constitutional complaint in comparative perspective. The author makes as well a critical analysis on an unsuccessful legislative initiative for an introduction of a constitutional complaint procedure in the Bulgarian legal order

Сравнително-правни аспекти на касационното производство в новия български Наказателен процес

Author(s): Elena Nedyalkova / Language(s): Bulgarian Issue: 1-3/2007

The reform of the criminal justice system of the Republic of Bulgaria covers a specific system of legislative, administrative and organizational measures, aimed at delivering timely and fair justice. The preparation and the adoption of a new Code of Criminal Procedure is a natural result of striving to improve the Bulgarian legislation in the field of criminal proceedings.

СРБИЈА И ЊЕНА УСТАВОТВОРНА ВЛАСТ — НЕКАД И САД

Author(s): Pavle Nikolić / Language(s): Serbian Issue: 5/1989

СРЕТЕЊСКИ УСТАВ – 175 ГОДИНА ПОСЛЕ

Author(s): Sima Avramović / Language(s): Serbian Issue: 1/2010

The author points to a few strongly rooted stereotypes regarding the first Serbian Constitution of Sretenje adopted in 1835. He calls for their re-evaluation and offers new arguments as a starting point to encourage further research.105 There are scholars who raise the question whether the 1835 act was the first Serbian constitution. Some claim that there were previous historical documents, which were of constitutional character, while others contest the constitutional nature of the 1835 act, due to the lack of formal sovereignty of Serbia in that time. In the author’s view the Constitution of Sretenje had sufficient formal and substantial elements comparable to other contemporary European constitutions.The author is of opinion that the Constitution was not imposed to then Serbian prince Milosh as an aftermath of the rebellion of the influential leader, Mileta, in 1835. Prince Milosh sincerely wanted to provide a constitution for the country, and had ordered its drafting five years before the rebellion took place. The author offers evidence that prince Milosh vigorously tried to save the Constitution after the strong negative reactions to its adoption, which came from Russia, Turkey and Austria. The three powers considered the Constitution to be revolutionary, modern and dangerous for their countries, which was particularly the case of its Chapter XI, providing on civil rights and liberties.

СРОК ЗА ИЗДАВАНЕ НА РЕШЕНИЕ ОТ МИТНИЧЕСКИЯ ОРГАН ПО ПРИЕТО ЗАЯВЛЕНИЕ

Author(s): Atanas Simeonov / Language(s): Bulgarian Issue: 1/2019

The research covers issues related to issuing customs decisions on the application of EU customs legislation. There is currently no in-depth discussion on these issues. The practice of the administrative authorities competent to issue acts on the application of customs legislation reveals uncertainty and still ignorance of the new legal framework, which undoubtedly leads to contradictions in the judicial resolution of legal disputes. This article is part of a larger study on administrative service delivery by Member States' customs administrations in the EU and aims to clarify and analyze problematic issues.

Стабилност на законодателството

Author(s): Zhivko Stalev / Language(s): Bulgarian Issue: 6/2002

The article has been provoked by the changes, which happen too often in the legislation, and the author illustrates this with comparative data. Having in mind that the frequent changes in the legislation destroy certain established stereotypes of behaviour and transform just in paper suitable only for recycling the entire judicial practice and literature, which deal with the amended law, the author proposes to stop the need for amendments through interpretation of the law, when the text is unclear, contradicting or regulates the matter, which it relates to.

СТАЛНОСТ СУДИЈСКЕ ФУНКЦИЈЕ VS. ОПШТИ РЕИЗБОР СУДИЈА У РЕПУБЛИЦИ СРБИЈИ

Author(s): Slobodan P. Orlović / Language(s): Serbian Issue: 2/2010

Permanent tenure of judicial office is one of prerequisites of the independent judiciary and of the rule of law principle. It is embodied in Serbian Constitution of 2006. The author questions constitutionality of the ongoing reform of judiciary in the Republic of Serbia, and claims that the manner in which the reform is being implemented violates the very principle of permanency of judicial function.