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Gender mainstreaming w ustawodawstwie francuskim. Podstawy konstytucyjne i wybrane przykłady

Author(s): Ewa Popławska / Language(s): Polish Issue: 2/2014

In comparison to other European states, the French Republic stands out with its particular care for giving women an equal position in politics at the central and local levels, as well as in other areas, e.g. in management of big corporations and in public administration. The path to legislative amendments aiming to create more favorable conditions for French women’s participation in political and social life was paved by the 1999 amendments to the Constitution, supplemented on 6 June 2000 and then further developed on 23 July 2008. The constitutional amendments were forced by the Constitutional Council, which many times held laws strengthening the position of women in elections as incompatible to the principle of equality. The systemic foundations for application of gender mainstreaming in France were finally reflected in Article 1 of the Constitution of the Fifth Republic, which stipulates: ‘Statutes shall promote equal access by women and men to elective offices and posts as well as to professional and social positions’. The latest manifestation of this promotion is the reform of the ‘education code’, including among others the areas of higher education and science, which reform was preceded by the conclusion of ‘covenants’: social agreements between the most important trade unions and organizations associating academics and personnel of higher education with the ministers for women’s affairs and for higher education and research which provided for strengthening women’s position in the sector’s management. Introducing gender parity in this area is a pioneer move on a worldwide scale and is motivated mainly by the disparity between the percentage of women who complete higher education, undertake doctoral studies and are employed in lower ranks of the professional hierarchy and participate in their bodies which decide about e.g. granting academic degrees, universities’ management or accreditation.

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Языковое судебное толкование

Языковое судебное толкование

Author(s): Eliasz Minnikies,Eugeniusz Pirmajew / Language(s): Polish Issue: 70/2017

The article shows the importance of the language of judicial interpretation as one of the types of legal interpretation. The basic features of the language of judicial interpretation prompted the author’s definition.

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ЗАКОНИТЕ (DECRETA) НА ПЪРВИЯ КРАЛ НА REGNUM HUNGARIAЕ СВ. ИЩВАН I, И IUS GRAECO-ROMANUM

ЗАКОНИТЕ (DECRETA) НА ПЪРВИЯ КРАЛ НА REGNUM HUNGARIAЕ СВ. ИЩВАН I, И IUS GRAECO-ROMANUM

Author(s): Gábor Hamza / Language(s): Bulgarian Issue: 2/2015

The article claims that through analyzing the legislation of Hungary's first mon-arch Istvan I, one can specifically notice the realization of the principle ubi civitas, ibi ius. Namely, while setting the foundations of the state (civitas), the first Hun-garian souvereign, being gifted with a very broad European culture, managed to take into account both the universal nature of law and the necessity to preserve the national traditions of his people. The modern and global views of Istvan I, who successfully united Ius Romanum – or to be precise Ius Graeco-Romanum – with the legal customs of his own people, played a vital role in connection to Hunga-ry's European integration at that particular era.

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Marxovo učenje i vladavina prava u kontekstu uspostavljanja vladavine prava u Bosni i Hercegovini

Marxovo učenje i vladavina prava u kontekstu uspostavljanja vladavine prava u Bosni i Hercegovini

Author(s): Benjamin Nurkić / Language(s): Bosnian Issue: 17/2021

The paper discusses the relationship between Marx's philosophy and the rule of law. The classical view of Marxism and the rule of law tells us that these are opposite notions. In this paper, the author presents different views in the context of the relationship between Marx's philosophy and the rule of law in relation to the classical Marxist view of the rule of law. Also, the author in this paper shows that Marx'sunderstanding of the rule of law does not necessarily contradict the modern concept of the rule of law, and also, Marx's understanding of the rule of law is related to the problem of building the rule of law in Bosnia and Herzegovina. The author conveys Marx's critique of 'law' as a critique of the process of building the rule of law in Bosnia and Herzegovina. In addition, the author shows that Marx's critique of 'law' is not necessarily an obstacle to the implementation of the modern concept of the rule of law

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Legitimizing pre-emptive data surveillance under the EU law: the case of the PNR Directive

Legitimizing pre-emptive data surveillance under the EU law: the case of the PNR Directive

Author(s): Julia Wojnowska-Radzińska / Language(s): English Issue: 1/2021

The paper analyses the PNR Directive as pre-emptive data surveillance practice. The 2016/681 Directive regulates the use of Passenger Name Record (PNR) data in the EU for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. It obliges airlines to hand national authorities passengers’ data for all flights from third countries to the EU and vice versa, but Member States can also extend it to ‘intra-EU’ ones (i.e. from an EU country to one or more other EU countries), provided that they notify the EU Commission. Thus, PNR Directive affects all passengers who arrive in the territory of one Member State originating from a third country, or who depart from a Member State’s territory to a non-EU country, including any transfer or transit flights. Using PNR data, the individual is profiled and encoded in terms of degrees of risk.

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Devlet Denetleme Kurulunun İdari Teşkilat Üzerinde Etkinliği Hakkında: Raporlarının İcrailiği

Devlet Denetleme Kurulunun İdari Teşkilat Üzerinde Etkinliği Hakkında: Raporlarının İcrailiği

Author(s): Azer Ebru Mutlu,Fazıl Hüsnü Erdem / Language(s): Turkish Issue: 1/2022

The State Supervisory Board was regulated by the Presidential Decree No. 5 after the Constitutional Amendment Law No. 6771. The Board, which is also given the duty and authority to investigate, can prepare investigation and emergency reports. The execution of the reports of the Board has been discussed from past to present. Transactions, actions and reports prepared by the Board as an auxiliary institution, which takes action upon the direct instruction of the President, are considered preparatory. Preparatory operations are not enforceable as they are not final and executable. However, there are some measures that the Board can take in investigations and emergency reports. One of these measures is the measure of removal from office explicitly regulated in Decree No. 5. These are enforceable measures and can be prosecuted. In addition, these measures and their having enforceable power are a great innovation for the Board.

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СИСТЕМОУТВОРЮЮЧА РОЛЬ ПРАВОВИХ ЦІННОСТЕЙ ТА НОРМ У ВІТЧИЗНЯНОМУ ДЕРЖАВОТВОРЕННІ

СИСТЕМОУТВОРЮЮЧА РОЛЬ ПРАВОВИХ ЦІННОСТЕЙ ТА НОРМ У ВІТЧИЗНЯНОМУ ДЕРЖАВОТВОРЕННІ

Author(s): Yu. Yu. Kalinowski / Language(s): Ukrainian Issue: 1/2017

Was investigated the system-forming role of legal values and norms in domestic statebuilding. It is alleged that gradation legal values and their social role determined methodological approaches to thinking: positivist or natural and legal. The dominance of the positivist paradigm in understanding the law contributed to the spread of the twentieth century totalitarian and authoritarian political regimes whose leaders rejected natural law values and norms, replacing their so-called «political expediency» and ideological tenets. Repressive totalitarian political regime found its expression in the first place a significant moral person humiliation, catastrophic possibilities for its fulfillment. That is why the criticism of totalitarianism aims to restore such moral and legal values as human dignity. Was indicated that the rooting of democratic values in the public law and practice of nation-building helps overcome strains of legal awareness and legal culture of the population especially in countries that are reforming their political and legal system. For Ukraine, the crucial problem is legal nihilism overcoming, not only among ordinary citizens as among civil servants, senior politicians and so on. Since it is an example of the latter would encourage the establishment of legal values and statist thinking standards. Was proved that the system-forming role of legal values and norms most clearly manifests in collaboration with other values, especially moral and spiritual. The real upsurge of law and legal values is only possible in conjunction with the spiritual and moral nation flourishing, because exactly free individuals and society with a high level of justice are able to deeply understand the importance of instrumental and spiritual rights standards, apply it in daily life.

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Odpowiedzialność organów władzy państwowej i ich członków za niekonstytucyjne ograniczenia praw i wolności jednostki w czasie stanu zagrożenia epidemicznego i stanu epidemii

Odpowiedzialność organów władzy państwowej i ich członków za niekonstytucyjne ograniczenia praw i wolności jednostki w czasie stanu zagrożenia epidemicznego i stanu epidemii

Author(s): Piotr Uziębło / Language(s): Polish Issue: 1/2021

The introduction of the state of the epidemic threat in Poland, and then the state of the epidemic, revealed far-reaching violations of the Constitution of the Republic of Poland in the sphere of individual rights and freedoms, which are the result of regulations contained in in the Act on Combating Infectious Diseases of 2008, as well as in the acts that were adopted for its implementation. On the basis of this case, it is worth asking about the responsibility of persons participating in the process of adopting such defective normative acts. In this article, the author considers the potential options for enforcing such responsibility. The conclusions that follow show little chance to draw legal consequences against persons participating in the procedure of adopting those normative acts. Similarly, political responsibility is illusory. Therefore, it becomes necessary to consider introducing amendments to the Polish legal system that will allow for effective attribution of the liability to persons who participated in the adoption of normative acts that grossly violated the provisions of the Constitution. Such actions, however, would require not only changes to the existing legislation, and sometimes even the Constitution, but also the political will to do so, which can be considered the main problem.

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Niepodzielność zasady niezawisłości sędziowskiej. Glosa do postanowienia Sądu Najwyższego z 23 września 2020 r., II DO 52/20

Niepodzielność zasady niezawisłości sędziowskiej. Glosa do postanowienia Sądu Najwyższego z 23 września 2020 r., II DO 52/20

Author(s): Marek Piotr Kaczmarczyk / Language(s): Polish Issue: 1/2021

The article presents critical commentary to the decision of the Disciplinary Chamber of the Supreme Court concerning the possibility to treat an ECJ judgment in joined cases C-585/18, C-624/18, and C-625/18 as a prerequisite for reopening the proceedings based on Article 540 § 3 of the Polish Code of Criminal Procedure (k.p.k.). Disciplinary Chamber stipulates that the aforementioned ECJ judgment is not binding in Polish legal order. This follows, according to the commented decision, from two factors. First is the undue omission and, as a consequence, infringement of the Supreme Court Act in case of a prejudicial request to ECJ. The second is the lack of judicial independence of judges in the above case. The author argues that the line of argument taken by the Disciplinary Chamber is against Polish and European Union law. He points out several shortcomings in this Chamber proceedings. Its unconstitutional nature, ECJ interim measures, and other issues which the author acknowledges, renders Disciplinary Chamber unable to adjudicate. Regarding the author’s sbeliefs, first and foremost, this decision is illegal. Secondly, it shows urgent necessity to suspend the Disciplinary Chamber and, last but not least, proves that the Polish Constitution and European Union Treaties can safeguard the rule of law.

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Prawo do czystego powietrza

Prawo do czystego powietrza

Author(s): Kamila Doktór-Bindas / Language(s): Polish Issue: 4/2020

The issue of clean air is one of the most important problems of the modern world. Air pollution has no borders, therefore its protection is primarily the domain of international law, which is increasingly striving to strengthen this protection. The Constitution of the Republic of Poland of 1997 contains a number of provisions concerning the environment - for example, program norms that determine the tasks of public authorities such as preventing the negative health consequences of degradation of the environment, or the norms that contains the right to be informed about the quality of the environment and its protection). However, it is disputed whether the right to clean air can be considered as one of the fundamental rights that are subject to constitutional protection. The article shows the most important legal problems related to clean air protection: essential postulates of the legal doctrine, key legal regulations, and the most important court decisions that may affect the way this law is perceived in the near future.

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İdari Yargi Kararlarinin İşlevsizleşmesi

İdari Yargi Kararlarinin İşlevsizleşmesi

Author(s): Sebahattin Bektaş / Language(s): Turkish Issue: 53/2022

In the historical process, we see that the administrative judicial decisions in our country are becoming increasingly dysfunctional. The ongoing conflicts between the executive and the judiciary and the desire of the executive to control the judiciary continue. It is seen that the independence of the Judiciary was damaged with the 1982 Constitution and the 2010 Constitutional Amendment referendum. It is also observed that there has been a clear decrease in the number of annulment decisions, especially in the field of administrative jurisdiction. We consider this situation to be due to the fact that the administrative judiciary cannot act independently enough and that it feels itself under the pressure of the executive. In this study, the reasons for the gradual dysfunctioning of administrative judicial decisions in our country and solution proposals will be discussed.

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Konkretni prijedlog za nadogradnju Dejtonskog mirovnog sporazuma

Konkretni prijedlog za nadogradnju Dejtonskog mirovnog sporazuma

Author(s): Mirsad Kriještorac / Language(s): Bosnian,English Issue: 2/2020

Most observers of Bosnia and Herzegovina’s political situation have focused only on the problems that the Dayton Peace Accord created for the normal functioning of this Southeastern European state, but a workable solution is yet to be proposed. The Accord achieved peace by blocking any ability for effective governing and by diminishing the Bosnian state capacity through an excessive dispersion of power with an uncommon constitutional focus on internationalism, and an erroneous type of pluralism that undermines the normal functioning of a democracy. The solution for these problems is to be found by adjusting the procedural selection of the United Nations High Representative, who is the primary actor directly responsible for the implementation of the Accord, both in terms of the letter and intent of the document, and this paper explains how that change can be made and what problems it will resolve.

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THE LOCAL PARTY - A TOOL FOR THE MANIFESTATION OF CITIZENS’ POLITICAL WILL AT TERRITORIAL LEVEL

THE LOCAL PARTY - A TOOL FOR THE MANIFESTATION OF CITIZENS’ POLITICAL WILL AT TERRITORIAL LEVEL

Author(s): Mihai Cristian Apostolache / Language(s): English Issue: 2/2021

In a democratic regime, political parties are relevant actors in the constitutional architecture, undergoing both a constitutional and a legal regulation. The Constitutional Court goes further and, in its jurisprudence1, considers political parties as the main actors in constitutional life. The emergence of parties materializes the fundamental right of association and they are intended to define and express the political will of citizens. The Constitution qualifies pluralism, in general, and political pluralism, in particular, as a condition and guarantee of constitutional democracy. Political pluralism is seen in the doctrine2 as “a fundamental element of the process of conquering and exercising of power, of social leadership”. Political pluralism is also a supreme value, an essential value of society, guaranteed by the constitutional text in Article 1 paragraph 3 and Article 152, thus being intangible3. The legislative changes from 2015 allowed the appearance on the Romanian political scene of several local parties, together with the national ones, established either at level of locality or at county level.

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The phenomenon of two schools under one roof – When apples and pears do not mix

The phenomenon of two schools under one roof – When apples and pears do not mix

Author(s): Tarik Ekmeščić / Language(s): English Issue: 12/2021

The phenomenon of two schools under one roof started and is only implemented on territories where the Croat–Bosniak War was waged. One of the main problems after this conflict was education for the returning population which was now a minority in their earlier place of living. The concept was first introduced in the multi ethnic town Stolac in 2000, and this practice was duplicated in Vitez and Vareš later. The phenomenon of two schools under one roof spread and includes fifty-two schools located in three primarily multi ethnic cantons Central Bosnia Canton (bos. SBK), Zenica – Doboj Canton (bos. ZDK) and Herzegovina - Neretva Canton (bos. HNK). The international community mostly condemns two schools under one roof, but the process of administrative unification is however met by resistance. The phenomenon of two schools under one roof was discussed in domestic courts from 2011 when an organization for providing legal assistance “Vaša prava BiH” launched lawsuits against Ministries of Education from Central Bosnia Canton and Herzegovina – Neretva Canton. The case which was launched in Mostar was decided by the Supreme Court in 2014 in favor of the plaintiff as it was concluded that the practice of two schools under one roof based on ethnic background constitutes discrimination. Recently the Constitutional Court of Bosnia and Herzegovina decided that the practice of two schools under one roof constitutes discrimination. This is a delicate problem where a concrete solution has to be made for the future of children, their education and the progress of this country. It is a question of time when this policy will be abolished, but the common ground shared by most people is that the practice of two schools under one roof has to stop soon, while it is still possible to do so.

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The Gendered Implications of Consociational Peace Agreements: A subnational level analysis of Bosnia and Herzegovina

The Gendered Implications of Consociational Peace Agreements: A subnational level analysis of Bosnia and Herzegovina

Author(s): Tajma Kapić / Language(s): English Issue: 12/2021

A key criticism of consociational post-conflict solutions posits that such agreements privilege ethnic divisions at the expense of other forms of social identity, including gender. This paper examines this tension by focusing on the consociational formula utilised to end the war in Bosnia and Herzegovina (BiH). The paper argues that this context is particularly significant to observe long-standing gendered implications as a by-product of the Washington Peace Agreement (WPA) and the subsequent Dayton Peace Agreement (DPA). Drawing on interviews and statistical data, my analysis focuses on trajectories of women’s descriptive political representation. The paper emphasises how frozen ethnic cleavages, a direct consequence of consociationalism, have still a strong impact on women’s representation in political institutions. This is particularly visible at the cantonal level where the number of women represented in Cantonal Assemblies has varied markedly both spatially, between different cantons, and temporally, between post-Dayton general elections. The high level of fragmentation of the political system and the number of small parties who won seats only on one or two occasions blurred the picture even further. However, by zooming in on the large political parties who won seats on most occasions, I find that the parties' ideology played a significant role in electing women into cantonal assemblies.

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LAND REGISTRY REFORM IN THE REPUBLIC OF SRPSKA AND ITS CONSEQUENCES

LAND REGISTRY REFORM IN THE REPUBLIC OF SRPSKA AND ITS CONSEQUENCES

Author(s): Faruk Đozić / Language(s): English Issue: 9/2020

The Law on Survey and Cadastre in the Republic of Srpska entity introduced a system of recording real estate and rights to them through the so-called the Unique real estate records. Historically, the system of a single real estate record is not a novelty in our legal climate. The Law on Survey and Cadastre of the Republic of Srpska from 2011 represents continuity in the intention of the entity legislator to continue with the legal heritage of the former SFRY and bring the legal solutions in the field of land registry law in the entity of Republic of Srpska closer to the legal solutions of the Republic of Serbia. The decision, provided by law, to transfer the burden of establishing the real estate cadastre and keeping records on the rights to them to the administrative body leaves room for abuse, especially with regard to property rights of returnees, refugees and displaced persons who for objective reasons are not able to actively participate in the process of establishment of the unique real estate records. Restricting the right to judicial decision on real estate rights in the process of establishing a single real estate cadastre is contrary to international norms on the right to property as an inviolable human right. The Law on Survey and Cadastre of the Republic of Srpska actually represents the continuation of the realization of the goals of the Declaration on the Proclamation of the Republic of Serbian People of Bosnia and Herzegovina and to legally complete the process of ethnic cleansing of non-Serbs and genocide against Bosniaks.

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EVROPSKA UNIJA: SUVERENI ENTITET?

EVROPSKA UNIJA: SUVERENI ENTITET?

Author(s): Mahir Muharemović / Language(s): Bosnian,Croatian,Serbian Issue: 6/2014

The EU is a construction based upon international treaties which function as its very foundation. Therefore, all its competencies are derived from these founding treaties that are the result of the sovereign will of its member states. None provision of the treaties confers Competence-Competence to the Union. As the most crucial element of sovereignty the Competence-Competence is still placed in the member states. Beside this fact, the member states have the sovereign right to withdraw from the Union and the Lisbon Treaty provisions contain, for the first time, a prescribed formal withdrawal procedure. The EU also lacks of a common European nation that could be the democratic legitimation of a EU constitution. Because of that we can not speak of an existing EU constitution, but rather of pre-constitutional forms. Although there is much debate about the very same character of the EU, analyzing the Lisbon Treaty, we can reveal the significant intergovernmental character of the EU without an unconditional and absolute supremacy of the EU Law over national law of the member states, as it would be in a federation.

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Reformy sądownictwa administracyjnego w Serbii

Reformy sądownictwa administracyjnego w Serbii

Author(s): Ratko Radošević / Language(s): Polish Issue: 98/2022

Judicial control of the administration in Serbia has a long tradition of over 150 years. Initially, this control was exercised by the Council of State, organized according to French models. After World War II, all forms of administrative judiciary were abolished and reinstated as early as 1952, when the competence to resolve administrative disputes was entrusted to common courts, which adjudicated these cases in special chambers. The last phase of the development of administrative judiciary began anew with the creation of specialized judiciary, namely with the establishment of an administrative court in 2010. This court is no longer part of the administration, as it was before World War II, but part of the judicial system. Judicial control of administration is based on the constitutionally guaranteed right to a fair trial. This means that the administrative court decides within a reasonable time on the basis of the law and facts established in the course of a public hearing, and its judgment may be delivered in limited jurisdiction (resulting in a cassation judgment) or full jurisdiction (where the court itself decides the case). This phase of the development of judicial control of the administration is not finished, however, as the administrative judiciary in Serbia has a single-stage structure, and therefore administrative court proceedings are always one-instance. This raises the need for further reforms aimed at introducing two-tier administrative judiciary and increasing its efficiency.

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Reformy sądownictwa administracyjnego na Litwie

Reformy sądownictwa administracyjnego na Litwie

Author(s): Jurgita Paužaitė-Kulvinskienė / Language(s): Polish Issue: 98/2022

The study concerns the reforms of the administrative judiciary in Lithuania, starting from the interwar period, and the importance of prof. Mykolas Römeris, to modern times. The Lithuanian model of legal protection against actions of public administration is based on Art. 111 sec. 2 of the Lithuanian Constitution, which provides for the possibility of establishing specialized courts to hear administrative cases. Since 2001, this judiciary has two instances: it consists of district administrative courts as courts of first instance and the Supreme Administrative Court. It is part of the judicial system but is separate from the common and constitutional courts. The Lithuanian administrative judiciary is now considered to be very modern, taking into account progressive European trends. Its characteristic feature are, among others extensive forms of alternative settlement of public law disputes, such as pre-trial proceedings, settlement or mediation. The Lithuanian legislator, however, continues efforts to modernize it further. The subject of the current discussion is the reform of the appeal procedure, assuming an increase in the effectiveness of this procedure by introducing a filtering mechanism for complaints brought to the court of second instance.

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Projekty reform sądownictwa administracyjnego w Polsce

Projekty reform sądownictwa administracyjnego w Polsce

Author(s): Anna Chmielarz-Grochal / Language(s): Polish Issue: 98/2022

The aim of the article is to present the basic assumptions of the reforms of the Polish administrative judiciary. The planned and implemented reforms concerned both the model of administrative judiciary system, as well as the model of adjudication and rules of procedure before administrative courts. The analysis of the implemented solutions, starting from the period of the Second Polish Republic, made it possible to formulate a thesis that the administrative judiciary was subject to evolutionary (developmental) reforms. The article mainly concerns systemic issues, as the creation of a separate, independent, two-instance administrative judiciary was a priority postulate for reforms initiated after Poland regained independence, which appeared in later reform proposals. As the analysis shows, this postulate was fully implemented after the entry into force of the Constitution of the Republic of Poland of 1997.

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