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The Trump Presidency, Federal Judges, and American Law

Author(s): Christopher Wolfe / Language(s): English Issue: 1/2021

President Donald Trump’s appointments to the US federal judiciary were a major accomplishment of his presidency (in particular, his three Supreme Court appointments). They are likely to have a significant impact on American political and legal life for a long time to come. The appointments have been criticized by some, on ideological grounds, but they represent a significant and beneficial return to the original understanding in American constitutionalism of the proper role of judges and judicial review.

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GLOSA DO WYROKU TRYBUNAŁU KONSTYTUCYJNEGO Z DNIA 20 CZERWCA 2017 R. SYGN. AKT P 124/15 (DZ. U. POZ. 1214) - KLAUZULA DEROGACYJNA

Author(s): Edyta Tkaczyk / Language(s): Polish Issue: 2/2021

The gloss has been dedicated to the judgment of the Constitutional Tribunal dated 20 June 2017 fi le no. P/124/15 (Journal of Laws, item 1214). The basis for the judgment was the factual circumstances which included the first prosecution (Art. 271 § 1 of the act dated 6 June 1997 – penal code) and road transport law (art. 92a para. 1 of the road transport law). The doubts of the inquiring court arose from admissibility of use, in relation to the same natural person for the same deed being the issuance of the document which certifies an untruth, of the criminal liability for the penal code crime and administrative responsibility (sanction) in the form of the punishment pursuant to the road transport law. The similarity of penal code norms and road transport law is not a logical principle, it requires a basis in the law.

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Ústavní soud připustil možnost snížení míry ochrany obyvatelstva před hlukem

Author(s): Vojtěch Stejskal / Language(s): Czech Issue: 3/2024

Commentary on case law discusses a recent decision by the Czech Constitutional Court regarding noise protection regulations. A group of 23 senators challenged amendments to government regulation No. 433/2022, which increased noise limits from road and rail transport in protected outdoor areas. The senators argued that the amendments were chaotic, unbalanced, and unpredictable, potentially leading to significant increases in permissible noise levels. The Constitutional Court partially rejected and partially dismissed the proposal, stating that the amendments did not violate the law. The Court emphasized that setting noise limits is within the government's competence and that reducing protection levels is not inherently unconstitutional. The decision also referenced previous rulings and international standards, noting that neither the World Health Organization nor the European Union mandates specific noise limits. The Court concluded that balancing public health protection with societal needs is essential, and the increased noise limits do not breach constitutional mandates.

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Odwołania do Konstytucji RP z 17 marca 1921 roku i ewolucja rozwiązań konstytucyjnych w projektach ustawy zasadniczej RP z lat 90. XX wieku. Analiza zagadnienia na wybranych przykładach

Author(s): Paweł Skorut / Language(s): Polish Issue: 30/2021

The Polish constitutional drafts from the 1990s were one of the source texts of the 1997 Constitution of the Republic of Poland. Some of them tried very hard to refer to the solutions of the Polish Constitution of 1921. The article carried out an analysis to what extent the individual constitutional drafts referred to the solutions of the 1921 Constitution. The analysis of constitutional drafts and their similarities to the solutions of the 1921 Constitution were carried out on the basis of comparisons regarding, among others, the parliament, the president of Republic of Poland and legislative initiative.

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The Slovenian Constitutional Court and EU Law: Some Aspects and Future Challenges

Author(s): Katarina Vatovec,Jernej Letnar Černič / Language(s): English Issue: 2/2023

This article critically discusses the application of EU law before the Slovenian Constitutional Court. This Court is the highest guardian of the rule of law and human rights in the Constitution of Slovenia. It has arguably been the most open Slovenian state supervisory institution to influence foreign, comparative, and international laws and practices. As this article illustrates, after Slovenia acceded to the EU in May 2004, but in particular over the past years, the Slovenian Constitutional Court has increased references to EU law. On several occasions, EU law was also a critical factor in deciding and reasoning the cases. Even though the Slovenian Constitutional Court often not only refers in its decisions to EU law but also bases its decisions on it, there rest some uncertainties regarding the application of the Charter on Fundamental Rights of the EU and direct references to the Court of Justice of the EU through preliminary questions remain few and far between. The article mentions the potential constitutional reforms in Slovenia, namely introducing a selective jurisdiction of the Constitutional Court, which could be problematic without comprehensive changes in the Slovenian judicial system as it might not only far further limit the protection of human rights and fundamental freedoms, but it could also undermine the correct application of EU law in the Slovenian legal order. In conclusion, this article points out some aspects of the future adjudication of the Slovenian Constitutional Court when applying EU law that need to be further elaborated or reconsidered.

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The judgment of the Constitutional Tribunal of 7th October 2021, K 3/21. The case study on declaring the unconstitutionality of UE Treaties

Author(s): Marcin Dąbrowski / Language(s): English Issue: 2/2023

The judgment of the Constitutional Tribunal of 7th October 2021 (K 3/21) represents the attitude of Polish authorities to the principle of priority of EU law. The constitutional court has developed the conception that this organ is entitled to check the conformity of EU law to Polish constitution and to adjudicate that a treaty is in contrary to the constitution. Indicated verdict is an example of these ideas. It seems that such a judgment would cause a set of very serious legal effects, for example changing the constitution or terminating an invalid international agreement. It means that the verdict generated very serious legal consequences or threats. Fortunately, the verdict has not been realized, and its consequences remain undone. It is the effect of contemporary position of Polish Tribunal and their explanation of the judgment. Mainstream lawyers scholars and academics treat this as a political statement of judges of the Tribunal.

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A Romanian Example of Compensation for Non-material Damages Caused by a Violation of the Right of Access Provided by the General Data Protection Regulation

Author(s): Silviu Dorin Şchiopu / Language(s): English Issue: 2/2023

The former European Union Civil Service Tribunal admitted the existence of non-material damage that is separable from the unlawfulness that is the basis for the annulment of a contested decision and which cannot be entirely repaired by that annulment. So, the frustration of being forced to bring an action, on the one hand, and a state of serious uncertainty and concern (anxiety), on the other hand, may constitute actual harm suffered giving rise to the claim for moral damages, as long as the illegality of the wrongful act and the existence of a causal link between the act and the damage suffered are also proved. The Romanian courts awarded moral damages for the infringement of the right of access provided by Regulation (EU) 2016/679 to compensate the feeling of injustice and the anxiety caused by the fact that a person had to conduct a pre-litigation procedure and then a litigation procedure in order to have his rights recognised. This paper argues that the data subjects should demand and the courts should award non-material damages not only for the frustration of being forced to bring actions to defend their right to the protection of personal data, but also for the serious state of uncertainty and concern that can be generated by the loss of control over their own personal data when the controller disregards the right of access of the data subject, right designed to allow the latter to be aware of, and verify, the lawfulness of the processing.

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The Importance of a Governance Programme in the Exercise of Governance

Author(s): Cătălina Szekely / Language(s): English Issue: 2/2023

In order to ensure coherent governance, any responsible government proposes a series of measures to be implemented throughout its term of office. These measures are contained in the governance programme that it presents at the time of the government’s investiture. This governance programme is extremely important because it sets out the objectives of the government and is an important document on the basis of which the government is sworn in.

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Artikel 48 der Weimarer Verfassung: Hugo Preuß und Carl Schmitt im Streit über den „Diktaturartikel“

Author(s): Yasuhiro Endo / Language(s): German Issue: 2/2024

The abuse of Article 48 of the Weimar Constitution during the late presidency of Hindenburg has been criticized in many previous studies as one of the key factors of the collapse of the Weimar Republic that led to the establishment of the Third Reich, resulting from the lack of understanding of the parliamentary democracy. Whereas those criticisms have arisen primarily from the analysis of the consequences, this paper analyzes the issue of the executed presidential emergency powers with an integrative approach by comparing the arguments by Preuß, the drafter of Article 48, and Schmitt, taking into account the perspectives of members of the constitutional assembly as well as their contemporaneous intellectuals. While Preuß and Schmitt may appear generally contrastive in their beliefs and theories, some implicit logical agreements are observed, such as those on their interpretations of the relation between the first and the second sentences in Article 48, paragraph 2, and their thoughts regarding the handling of the law of the Reich that should be in Article 48, paragraph 5. With the findings of their commonalities and others in their theories, this paper attempts to contribute to refining the current systems of law and democracy for emergency situations in various contexts.

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Alois Rašín, Československo a moc ustavující

Author(s): Ondřej Preuss / Language(s): Czech Issue: 2/2024

The article discusses the concept of constituent and constituted power in the context of the establishment of the Czechoslovak state in 1918 – the constitutional revolution, with a particular focus on the role of Alois Rašín, a key figure in this process of discontinuity from the existing regime. However, the distinction between constituent and constituted power fails to explain how a new legal order arises without overly idealizing the constituent power. Author suggests focusing on specific values, such as democracy, political rights guarantees, and equality, rather than on the ephemeral nature of power during the creation of a new regime.

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Boj o zachovanie koakvizície v medzivojnovom Československu

Author(s): Lenka Martincová / Language(s): Slovak Issue: 2/2024

The adoption of the law on the establishment of an independent Czechoslovak state from 1918, which adopted the previous law of Austria-Hungary on Czechoslovakterritory, brought with it legal dualism. This was also manifested in property relations between spouses; while in the territory of the Czech countries this area was based on the dispositively applicable legal system of separate property of spouses, in the territory of Slovakia and Carpathian Ruthenia Russia two dispositive systems operated side by side, namely the system of separate property and the co-acquisition system, which were derived from the previous status arrangement of society. The solution to the legal dualism, which brought with it many problems, was supposed to be a legal arrangement that would be applied uniformly throughout the territory. After many discussions, the unification work took the path of a moderate revision of the provisions of the ABGB, while in this process the specific legal conditions of Slovakia and Carpathian Ruthenia were considered. The study follows the unification work in the field of civil law mainly on the basis of the discussions of experts who participated in the drafting of the Civil Code and the basic documents that were their results, while paying particular attention to the activities of the Slovak professional public, led by the Ministry of Unification and the Slovak Commission for the civil law as well as other experts who fought for the preservation of the institution of co-acquisition in the interwar period.

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Proces postupné inkorporace Listiny práv na státní úrovni ve Spojených státech amerických do konce 60. let 20. století

Author(s): Radim Seltenreich / Language(s): Czech Issue: 2/2024

In his article, the author deals with the issue of the “nationalization” of civil rights in the USA, by which, in the context of the issue, he means primarily the incorporation of civil liberties contained in the federal Bill of Rights at the level of individual states of he Union. As he explains, this incorporation was rejected until the Civil War based on the U.S. Supreme Court’s decision in Barron v. Baltimore in 1833. Other possibilities for such incorporation opened up after the passage of the 14th Amendment to the Constitution in 1868. However, even here, this solution was first rejected in the so-called “slaughterhouse cases” of 1873, when the “immunities and privileges clause” of the amendment was not used. The gradual incorporation of the Bill of Rights thus occurs only through the “due process clause” of the 14th Amendment, as evidenced in particular by the decisions of the U.S. Supreme Court adopted in the 20th century. This whole process, which very well documents the issue of the federal system in the USA, is primarily completed in the 1960s.

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Udělování československého státního občanství „krajanům vracejícím se do vlasti“ podle ústavního zákona č. 74/1946 Sb.

Author(s): Martin Nedvěd / Language(s): Czech Issue: 2/2024

The aim of this article is to highlight certain aspects of the application of Constitutional Act No. 74/1946 on the granting of citizenship to compatriots returning to their homeland, and to present some of the research brought to light from archival collections of the post-war Ministry of Labour and Social Welfare and of the Czechoslovak Foreign Institute. The article points out that remigration under article 1 of the above-quoted Constitutional Act was not merely a privileged naturalization as was remigration under article 2 – compatriots were legally entitled to citizenship. Attention is paid especially to the contemporary extensive interpretation, which we could capture through the maxim in favorem remigrationis. Hence, for example, the legal terms “liberation of Czechoslovak territory from enemy occupation” and “Czechoslovak resettlement action” used to be interpreted remarkably broadly in the administrative practice of the post-war republic. In addition, the study reflects on the concepts of nation that have been crucial in determining the state’s policy on compatriots and remigration, and it looks for parallels with the recent compatriot policy of the Government of the Czech Republic.

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Both Elected Representatives and Imperial OfI cials? The Mayors’ Installation in the Statutory Cities of Habsburg Austria 1860–1918

Author(s): Martin Klečacký / Language(s): English Issue: 1/2023

The article focuses on the specific legal status of statutory towns in Austria from the restoration of constitutionalism in 1860 to the end of the monarchy and on the peculiarities of their administration. Special attention is paid to their method of selecting representatives since the mayors of the statutory towns were subject to the approval of the government and the emperor. The article examines the impact of the confi rmation process on the selection of mayors, and to what extent and in what manner the government exercised its option to exclude certain elected individuals from the leadership of the statutory cities. It shows the changes in the approach of the government after the 1870s and concludes in stating the inefI ciency of this tool.

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„ИЗКУСТВЕНОТО РОДСТВО“ – ЕВРОПЕЙСКО СОЦИАЛНО ИЗОБРЕТЕНИЕ

Author(s): Jürgen Brand / Language(s): Bulgarian Issue: 1/2024

One of the special conditions that in retrospect proved to be decisive for the formation of Western industrial society is the emergence of the unique occidental urban culture. The guilds as "communes pré-légales" formed the nucleus for this. Without them, the social type of the free and equal citizen, who is loyal to his community, is inconceivable. As "groupements pré-urbains", they brought the forms and spirit of fraternity by oath to the emerging cities. As "initiatrices de l'autonomie urbaine" they secured political and commercial self-government in the city and territory vis-à-vis the authorities. In the view of Max Weber, the uniqueness of the occidental city is correspondingly linked to the associational character that occurred there, and also Otto Hintze pointed out that the European development into a free community was a singular phenomenon that had not occurred in this form anywhere else. Although there were guilds and similar associations of persons in the East, for example in China, the decisive difference to the European groups lay in the fact that the former remained connected to the idea of family, clan and tribal. While the dynastic rule regularly established a vertically structured organization, the "artificial kinship" resulted in a horizontal formation, which was established as a free "union" between the participants by contract and oath was characterized by certain principles. The constitutive feature was the oath that was linked to the treaty and indissolubly bound the "confederates" („Eidgenossen“) to each other. In examining the organizing principles of these "unifications", four areas must be emphasized: 1. The unconditional obligation to assist each other ("against all and everyone"). 2. The professional, social and (or) pastoral support of its members. 3. The primacy of one's own legal system. 4. The order of the Community by law and procedure. The Swiss "Eid-Genossenschaft" of 1291, which, apart from the free imperial cities of the Holy Roman Empire, was the only horizontal association to assert itself at the state level, and still proudly bears this designation today, is a prominent example of the constitutive and at the same time hardened by the oath an association of this form.

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Anayasa Yapım Sürecinde Muhalefet Olgusunun Meclis Tutanakları Üzerinden Değerlendirilmesi: 1921, 1924 ve 1961 Anayasaları Örneği

Author(s): Mehmet Duyar / Language(s): Turkish Issue: 33/2024

Constitutions are texts that regulate the organs of the state, their functioning and the fundamental rights and freedoms of individuals vis-à-vis the state. Both these texts themselves and their drafting processes are of particular importance. Especially in constitution-making processes where citizens are indirectly involved in the process through their representatives, the existence and impact of the opposition phenomenon shows the democratic quality of the constitution. In this context, this study aims to examine the phenomenon of opposition in the Turkish constitution making processes in the 1921 and later periods through parliamentary minutes. According to the results of the analysis conducted from a qualitative perspective with an interpretivist approach, it is determined that there was a functioning and qualified opposition phenomenon in the 1921 and 1924 constitution-making processes, while this determination is controversial in the 1961 constitution-making process.

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Interpretarea art. 4 alin. 1 lit. c) din Legea nr. 77/2016. Echilibrarea și continuarea contractului de credit. Adaptarea contractului în ipoteza impreviziunii

Author(s): Not Specified Author / Language(s): Romanian Issue: 1/2024

i) Dispozițiile art. 4 alin. (1) lit. c) din Legea nr. 77/2016 nu instituie decât condiția ca, creditul să fi fost contractat de consumator cu scopul de a achiziționa, construi, extinde, moderniza, amenaja, reabilita un imobil cu destinație de locuință sau, indiferent de scopul pentru care a fost contractat, este garantat cu cel puțin un imobil având destinația de locuință”, nu și condiția ca imobilul să fie folosit pe post de locuință chiar de către consumator. ii) Legea specială nu prevede modalitatea concretă în care se realizează echilibrarea contractului. Cu toate acestea, având în vedere art. 4 alin. (1) lit e) și alin. (1 ind.1) din aceeași lege care privesc impreviziunea, se constată că echilibrarea reprezintă, în fapt, adaptarea contractului în ipoteza impreviziunii. iii) Măsurile de adaptare a contractului, stabilite de părți, ca urmare a unui proces de negociere, ori de instanța sesizată în temeiul Legii nr. 77/2016, nu pot fi aplicate retroactiv, astfel cum rezultă cu claritate din deciziile Curții Constituționale, prestațiile executate rămânând câștigate contractului. De aceea, sintagma "pentru viitor" se referă la un moment ulterior celui la care se produce riscul supraadăugat, respectiv data la care debitorul invocă impreviziunea în mod efectiv (data transmiterii notificării potrivit art. 5 din Legea nr. 77/2016).

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Trvání věcné příslušnosti (v řízení o insolvenční odpůrčí žalobě)

Author(s): Ivan Tvrdík / Language(s): Czech Issue: 3/2024

In the article, the author critically attacks the established practice of the Supreme Court, according to which a court with subject matter jurisdiction, whose jurisdiction was undoubtedly given at the time of the beginning of the proceeding, may become jurisdictionally incompetent in the course of the proceeding as a result of a mere change in the legal assessment of the case. The examples of German, Swiss and Austrian legal doctrine, regulation and practice show that the principle of the duration of jurisdiction, which applies in the Czech Republic on the basis of the second sentence of Article 11(1) of the Civil Procedure Code, prevents such a result. All the way to the end of the proceeding, only those circumstances which existed at the time of its initiation are decisive for the determination of subject matter (and local) jurisdiction. If the court has at the beginning of the proceeding, on the basis of the value or the legal nature of the matter in dispute, subject matter jurisdiction to hear and determine a particular case, its jurisdiction cannot be changed merely because the court’s legal assessment of the case has changed after the completion of the examination of the evidence. The jurisdiction of the court is based purely on the pleading and the pleaded facts or the substantive assessment of the pleaded facts (i. e. not on the established facts). The answer to the question which court has (subject matter) jurisdiction to hear and determine a case must be apparent from the outset of the proceeding and cannot, in principle, change during its course. This is mainly the result of the principle of procedural economy, the arguments connected with it and the procedural definition of the matter in dispute, or, to put it more simply, the principle of the duration of jurisdiction.

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Správní žaloby nejvyššího státního zástupce – ohlédnutí po více než dvaceti letech

Author(s): Břetislav Martínek / Language(s): Czech Issue: 3/2024

The paper deals with the application practice of the Prosecutor General in the area of his special standing under Section 66(2) of the Administrative Procedure Code and related case law of administrative courts. The analysis presents an overall view of individual cases and their comprehensive summary. Among other things, it subsequently shows that, with the exception of the area of construction and environmental law, there are significant differences in both the number and the areas of actions brought to protect the public interest from year to year. The results of the research show that the vast majority of these actions are aimed at quashing potentially illegal decisions in the areas of traffic offences, nostrification of foreign titles and photovoltaic plant licensing – very narrow areas of administrative law in which the Prosecutor General has intervened to overturn illegal decisions issued in a large number of similar cases. The assessment of the merits of these actions has undergone a significant development over the period of the existence of this provision of the Administrative Procedure Code, caused not by a change in the statutory regulation, but by the case law of the administrative courts and subsequently the Constitutional Court. The author of the article criticizes these conclusions. However, the forthcoming amendment to the Administrative Procedure Code envisages a variant of the amendment to the said provision, which would probably overcome the referred non-conceptual effects of this case law and would allow the courts to review the active legal standing of the Prosecutor General more widely.

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Wpływ poglądów Cycerona na model ustroju Stanów Zjednoczonych oraz konstytucję federalną

Author(s): Monika Góral / Language(s): Polish Issue: 2/2024

Marek Tulliusz Cyceron dzięki swojej postawie oraz działalności naukowej stał się idealną inspiracją dla czołowych postaci rewolucji amerykańskiej. Wpływ jego poglądów jest widoczny m.in. w systemie politycznym oraz Konstytucji Federalnej Stanów Zjednoczonych. Ponadto, prawo naturalne, którego był orędownikiem oraz pojęcie własności prywatnej stały się fundamentem, na którym opiera się amerykański system prawny.Marcus Tullius Cicero, who was an active politician, diplomat, philosopher, andstatesman during the declining period of the Roman Republic, became an idealinspiration for leading figures of the American Revolution because of his attitudesand scholarly activities. The influence of his views can be seen in the politicalsystem and the Federal Constitution of the United States. In addition, the naturallaw he advocated and the concept of private property became the foundation onwhich the American legal system is based

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