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On 20. 12. 2000 a group of 83 members of Parliament introduced in the Parliament a bill for amendment of the Constitution of Republic of Bulgaria. In the article the author considers the question whether this bill is within the competence of the Parliament. Then he analyses in detail the proposals for a revision of the Constitution, as well as the reasons of the commissions who dealt with them.
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The Bulgarian Constitution regulates explicitly and exhaustively the cases of preterm ceasing of the mandate of a constitutional judge. It says nothing, though, about the term of the mandate of the newly elected judge. The article supports Decision No 8 of September 21, 2000 on Constitutional Case No 912000 of the Bulgarian Constitutional Court. According to the decision the judges elected to replace judges who ceased to carry out their duties before the end of their normal term of office shall complete the term of office of the judges they replace. The author considers that this is the only possible formulae satisfying the imperative constitutional requirements of equal quotas and periodical renewal of the Constitutional Court.
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This article surveys different ways at looking at the constitutions. In the first part, dedicated to the political nature of the constitution three different approaches have been analyzed - the constitution as an instrument of government, the constitution as a fundamental social contract and the constitution as a frame of government , safeguarding the rights of man and citizen. In the second part the legal or normative nature of the constitution has been treated. Traditionally modern nation state constitutions as the law of the land are regarded as a highest law regulating fundamental social phenomena. A special attention has been paid to the impact of the international law supremacy, the supranational, direct, immediate, horizontal effect of the EU law and legitimacy requirements upon the legal nature of the constitution. These theoretical constructs are drawn to their practical implications of the 1991 Bulgarian constitution within the context of the direct enforcement and hierarchy of the constitutional norms.
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The article aims to provide a general view of the concept of necessity (la.: necessitas) and its selected manifestations in the legal sphere (theory and practice). The author proves that at the most general level of considerations, the reaction to an emergency always fits in with a specific philosophy of law that conditions the processes of its creation, application and validity. The article mentions several variants of answers to the following fundamental questions: Can the law provide for any exceptions? Should the activity − which was to deal with a particular threat − always be grounded in positive law? If not, how should the acts outside the scope of this law be treated? These themes have been present in legal thought for centuries. Within individual areas of law, references to necessity and the state of necessity manifest themselves in different ways. Selected institutions of canon, criminal, constitutional and international law will be provided as examples and discussed later on. As part of a synthetic review of these cases, the similarities and differences in the perception of necessity (state of necessity) and the ways of integrating it into individual legal solutions are presented.
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The author of the opinion points out that the Council Decision 2020/2053 imposes a significant financial burden on the state and concerns matters regulated by statute or matters for which the Polish Constitution requires a statute, and as such may not be ratified without consent expressed by statute. The ratification of the Decision, due to the fact that through it the competencies of state authorities are transferred to the European Union in certain matters, should be conducted in accordance with Article 90 of the Polish Constitution.
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In the Sejm’s position on the Leszno City Council’s motion, it has been stated that article 40 para. 3 3 of the Act on Communal Self-government is consistent with the Constitution to the extent in which it allows the issuance of provisions for the maintenance of order only within the scope not regulated in separate acts or other generally binding regulations. The City Council filed the motion in connection with doubts as to whether it is permissible to establish by the council of the commune, by means of issuing provisions for the maintenance of order, a ban on selling psychoactive substances known as boosters. In the Sejm’s opinion, the matter covered by these provisions for the maintenance of order has been regulated by separate acts of law and therefore it is not possible to regulate this matter differently by local law.
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Although the Constitution of the Republic of Srpska was created in extremely complex circumstances, exposed to multiple, often violent changes, the underlined constitutional concept of the organization of power and the position of the President of the Republic remained unchanged. Thanks to that fact, the Constitution of the Republic of Srpska confirmed its vitality, and enabled the stable functioning of the state government. Although the semi-presidential system (of power) implies certain elements common to all variants, there are numerous specifics of its different manifestations. In this regard, one can observe the position of the President of the Republic of Srpska, who, in addition to immediate legitimacy, has vast and independent powers, which make him the true head of the executive branch. In light of these characteristics of the position of the President of the Republic, one can speak of a stronger semi-presidential form of government. Having in mind determinism of existing solutions, the similarity with comparative models, and bearing in mind certain specifics, the author is of the opinion that established solution should not be changed.
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The section aims to present a selection of the most important normative legal acts, including decisions of unconstitutionality, appeals in the interest of the law, preliminary judgments and decisions of the ECHR published in the Official Gazette of Romania and republished laws.
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In contemporary constitutional legal literature, the importance of the institute of conscientious objection is often emphasized. The institute itself can be interpreted in several ways. The author in this paper therefore fi rst deals with emergence and historical evolution of this term, which had originally been understood as a religious right, while today it is recognized by numerous Council of Europe and United Nations conventions as a fundamental human right. The paper thus scrutinizes universal international standards applied in the case of conscientious objection. The author particularly underlines the case law of the UN Human Rights Committee, the work of which has highlighted the issue of conscientious objection, coming to the conclusion that conscientious objection can indirectly be derived from the right to a freedom of thought, conscience and religion. In the second part of the paper, the author explains the emergence and makes an analysis of this institute in the legal system of Serbia. He consequently provides detailed scrutiny of Article 137 of the Constitution of the Federal Republic of Yugoslavia and Articles 296–300 of the Law on Yugoslav Army, as well as the case law of the Federal Constitutional Court. The author propounds a series of argument stressing imprecision and contradictoriness of the norms prevailing at the time. A subsequent analysis of the normative framework of the currently valid Constitution is performed. It is necessary to point out that by enacting the Law on Civil Service, the legal framework has been upgraded, fully recognizing conscientious objection in Serbia as a human right. Finally, taking into consideration the announced amendment of the Constitution, the author draws special attention to the need to further maintain the said institute in any future constitutional text.
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The nineteenth and twentieth century was the period of significant historical changes in Central Europe which are crucial for comprehension of Federal organization of State. Austrian federation passed through own progresses and declines, presenting distinctly example of discontinuity of statehood, culminated at the middle of twentieth century, after the First War. The dissolution of Dual monarchy arises Republic of Austria with own federalism, unchanged up today. The actual Constitution in force, originated one hundred years ago, at 1920, undergone numerous changes but it still remains very important steadfast of Austrian statehood and sovereignty, even today, considered Austria as one of the most successful Federal State in Europe. „Österrech“ means „East Empire“, strives to define a model of successful contemporary Federal State organization.
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Ethnic and entity contents of the constitutional norms are present throughout the Constitution, from the preamble to the concluding provisions. Formally, the Constitution uses the term „people“, but in the essence, it is the political nation as a political community, which aspires to realize itself through the state. Statehood of the ethnic and entity aspects have, as a consequence, the contradiction of the constitutional norms and mixture of political and legal content, thus making the Constitution of Bosnia and Herzegovina a contradictory political-legal document. Property and possibility of a statehood subject to form and reorganize a state through the constitutional power represent the essential issue of the existence and functioning of Bosnia and Herzegovina. Serbs, Croats and Bosniaks, as the constitutive peoples (ethnic nations), are the three equal statehood subjects organized through the two statehood entities, as the two federal units.
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The aim of the publication is to establish the function of the legal regulation of the principle of resolving legal doubts in favour of the citizen (in dubio pro libertate), introduced by the amendment of 2017 to the Code of Administrative Procedure. The purpose of the article is also to compare the state of the regulation in force at the time of its entry into force with the legal state created after the introduction of the amendment. This principle has been discussed and it has been established that it has a protective function. First and foremost, to ensure the security and stability of the law when the legislator has failed to fulfil its duty to legislate correctly and fairly. This function is of particular importance in cases where an administrative body unilaterally determines constitutional rights and freedoms. As a result of the comparison of the state of regulation before 2017, it was established that as long as the principle of in dubio pro libertate was a postulate of the doctrine, court judgments, interpreted from other principles of administrative proceedings, it did not suffer such significant limitations and could serve more fully to protect an entity. It the current state of law, administrative bodies can make use of it in a limited way only to several proceedings. Nor does it apply if there is – as is common in administrative proceedings – an important social interest or conflicting legal or factual interests of the parties concerned.
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Subject of this paper concerns decisions of the Constitutional Court of Bosnia and Herzegovina as a proof of unconstitutional takeover of constitution-making and legislative functions by that Court. The paper offers explanation of the way in which some judges of the Constitutional Court of Bosnia and Herzegovina made decisions in a case from 2000, which reveals the readiness of the judges to use their function to implement some political interests, and not to serve to the legal state and rule of law. Unconstitutional judicial decision concerning that case has been a foundation for establishing new institutions, but also for enacting new decisions by the same Court which are based on this initial unconstitutional decision, and not the Constitution of Bosnia and Herzegovina.
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The article deals with the problem of modal inference: if some addressees are obliged to do something, they are also obliged to realize states of affairs which constitute a necessary condition for the main obligation. Likewise, they are obliged to refrain from realizing states of affairs which constitute a sufficient condition for the action contradicting the main obligation. This type of inference is called in Polish legal theory “instrumental inference”. It is argued in the article that sometimes instrumental norms in law must be fulfilled (“preparatory actions” must be undertaken) before the main obligation is fulfilled. Lawgiver helps addressees of norms by applying vacatio legis. It can lead to new paradoxical consequences – to the creation of “virtual norms” – norms which never come into force, but addressees are obliged to undertake preparatory actions. The article presents theoretical description of this phenomenon. In conclusion one dogmatic claim is proposed: there is a potential way (art. 4171 § 1 k.c.) of getting from public officials compensation for preparatory actions which caused burden for addressees, when the main obligation turned out to be “virtual”. In Poland this procedure should be based on the rulings of the Constitutional Tribunal.
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The Constitutional Court of Bosnia and Herzegovina, as the highest court in Bosnia and Herzegovina, plays a role as a particular legal corrective which, among the other things, through its decisions tells how good the quality of laws is, in other words, it communicates that certain legal norms contained in laws do not meet the rule of law principle, and as such they should be removed from the law or the legal norm should be amended and harmonized with the rule of law principle. Therefore, Bosnian and Herzegovinian legislators should take into consideration that the laws they adopt during the legislative process must be in a line with the Constitution of Bosnia and Herzegovina and the European Convention on Human Rights and Fundamental Freedoms and international agreements listed in Annex I of the Constitution of Bosnia and Herzegovina. However, the practice indicates that the legislator sometimes misunderstands the communication of the Constitutional Court of Bosnia and Herzegovina and creates an even bigger problem with new legal solutions. This is exactly what happened to the latest amendments to the Criminal Procedure Code of Bosnia and Herzegovina, where the Bosnian and Herzegovinian legislator, when taking an effort to enforce the decision of the Constitutional Court of Bosnia and Herzegovina, went to a completely different direction and with the newly amended legislation questioned the investigation and criminal prosecution of persons who were the subject of the investigation.
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In the article, published on the occasion of the 100th anniversary of the enactment of the St. Vitus Day Constitution, the author deals with one of the key institutes of this document – freedom of the press. Based on discussions in the Constitutional Committee and the plenum of the Constituent Assembly, he concludes that the provisions of the St. Vitus Day Constitution on the press were created by the autocratization of certain provisions of the Constitution of Serbia of 1903. The article especially analyzes the restrictions of the press introduced by the transitional orders of the St. Vitus Day Constitution, through circumventing censorship and incrimination of “religious or tribal discord or hatred against the state”.
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Given that political parties participate in the formation, structuring and activity of the parliament, their presence has had a dual impact on the National Assembly of Serbia in the past three decades. On the one hand, their influence has been reflected on the internal structure and efficiency of parliamentary work. On the other hand, the party system combined with the electoral model has left its mark on the mode of political representation. The paper focuses on the impact the political parties have had on the National Assembly in the Republic of Serbia, particularly their influence on the internal organization of the Assembly and the effectiveness in the parliamentary process. The main goal is to explore the normative framework and parliamentary practice in order to analyze the actual prospects of the National Assembly to meet the basic postulates for exercising effective national representation. The main question is whether the Assembly, relying on its constitutional autonomy, is able to achieve the goals of the “working parliament” and the political representation of all citizens. The problem develops around the extent to which the people’s representation is capable of exercising its constitutional functions if it does not support and protect the differentiated political will of the people. The aim is to point out to the possibilities provided by the normative framework and the need for successful parliamentary practice in exercising parliamentary autonomy. Parliamentary autonomy is necessary not only for good internal organization of parliament and effectiveness in the parliamentary process but also in terms of strengthening the National Assembly’s external impact and position towards the holders of the executive power. The subject matter of analysis are the activities of political parties in parliament, observed through the work of parliamentary groups and parliamentary committees, as well as a lack of the parliamentary opposition guarantees.
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The article presents the considerations of the Decision No 250/2019 of the Constitutional Court of Romania and the practice of the European Court of Human Rights regarding the change of the legal framework during the trial, concluding that it is ordered by a conclusion prior to the settlement on the merits.Likewise, there are presented arguments that justify the mandatory preparation of the minute in case of change of legal framework, the motivation of the conclusion and its communication.There are examined, from the perspective of the change of the legal framework, the amendments and supplements to the Criminal Procedure Code ordered by the Law No 130/2021, which bring specifications in agreement to the case law of the Constitutional Court of Romania and of the European Court of Human Rights.
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