WHAT DOES IT MEAN TO TALK ABOUT DEMOCRACY IN TURKEY?

Author(s): Laura Guercio / Language(s): English Issue: 1/2017

After the July military coup, everybody is wondering what will be the future for the Turkish democracy. For decades, Western countries have been considering Turkey as a model for all Muslims States, adopting in 1928 the path of secular modernization, along Western lines. But till July 2016, this meant military used to intervene through coups d’etat every time there was a threaten to stability and constitutional order. Before the July 15 coup attempt, the military was one of the most trusted institutions in Turkey, historically considered as the guarantor of Turkey’s secular and democratic character. But on July 15, people took to the streets and confronted the rebellious soldiers. Has Turkish society internalized electoral democracy? Or the Turkish people may have simply substituted one form of autocratic governance for a form of electoral authoritarianism that is the illusion of multiparty democracy. Surely, we cannot find an answer in the overestimated conflict between military, secular elites and Islamic parties. Equally, we cannot consider the political conflict in Turkey as a struggle for democracy, but just a struggle for power. The Erdogan’s AKP heralds democracy: its more seasoned politicians have participated in free elections for two decades. But under the AKP, Turkey is not a liberal democracy, despite the multiparty elections and the promises of a new constitution and reforms that would address pivotal issues facing the country—the Kurdish question, human rights, and freedom of expression. The purges adopted after the July coup is just the final corollary of the Erdogan authoritarianism. But if it is clear, it is not clear the Western countries policy. USA and EU continue to be sleeping witness of the violation of civil rights under the Erdogan Government. Probably we, western people, should sincerely ask what do we want to mean talking about democracy in Turkey.

ATYPICAL ELECTORAL SYSTEMS

Author(s): Csaba CSERVÁK / Language(s): English Issue: 1/2017

Around the world we can face with a big diversity in the voting systems. Within certain limits governments have the right to determine how many votes a single citizen is allowed to cast, and how. Therefore we can also find majority-, proportional- and preferential electoral systems even only in Europe. Single- and multiple-vote systems are neither unfamiliar. While the vote-transfer system is currently employed in Malta and Ireland, until present Germany has applied the personalized PR-system. The electoral system in Hungary has changed over time. According to Act XXXIV of 1989, until 2010, the electoral system was an archetype of mixed voting systems: in it, it is possible to gain a mandate both in a single district and through party lists. The Parliament operates with 386 representatives. In 2010 the system was changed under the Act CCIII of 2011. It is still a mixed system, but there are only 199 mandates can be won: 106 in relative majority single constituencies and 93 on a national list. Since it provides compensation after the votes cast in single districts, it is also, essentially, a compensational system.

CRITICAL CONSIDERATIONS ON DECISION NO. 7/2016 OF THE HIGH COURT OF CASSATION AND JUSTICE, REGARDING THE INTERPRETATION AND APPLICATION OF ART. 127 PAR. 1 AND 3 CODE OF CIVIL PROCEDURE

Author(s): Claudia Roşu / Language(s): English Issue: 1/2017

The article critically analyzes the solutions taken into consideration by the High Court of Cassation and Justice in the Decision no. 7/2016, which admitted the appeal on points of the law concerning the interpretation and application of art. 127 par. (1) and (3) Code of Civil Procedure and determined that the phrase "the court of operation" should be interpreted restrictively, in the sense that it refers to the situation where the judge actually operates in the court that is competent to adjudicate on the request of the proceedings at first instance.In our opinion, the correct interpretation is the extensive one, which refers to judges of all procedural cycles of judgment, whatever the court is in which they operate, as long as they belong to the district court of appeal in whose jurisdiction the court belongs, which would have usually had the resolving power.Also, the Supreme Court has established that art. 127 par. (1) and (3) Code of Civil Procedure is to be interpreted in terms of the concept of "registrar" in the sense that it is also applicable in the case of claimants belonging to the auxiliary personnel (registrar) in the prosecutors' offices courts.On the contrary, we believe that the restrictive view is correct, which refers only to those registrars who actually operate in the court that settles the case

Przeludnienie zakładów karnych w Polsce - kierunki zmian legislacyjnych

Author(s): Stanisław Pikulski,Michał Gornowicz / Language(s): Polish Issue: 33/2016

The problem associated with overcrowded prisons in Poland has stayed unsolved since 1918 (restoration of independence). Despite the passage of nearly 100 years since the event mentioned above, an effective solution of this subject still has not been found. What is more, in the light of statistical data from March 2012, more than 47 thousands people sentenced by final court stay outside the prisons due to the inability to start serving their sentences. Under article 110 § 2 of Polish Executive Criminal Law, area in a residential cell for a convicted person, is not less than 3 m2. It is vital to notice that this indicator is one of the lowest in all Europe. Lower surface of the cell intended for a prisoner is only countries of Eastern Europe such as Estonia, Latvia, Russia (2.5 square meters) and in Belarus (2 square meters). This shows that Polish standard leaves a lot to wish in providing prisoners appropriate conditions in prison. The main aim of this article is finding an effective solution to the problem signalized above. It seems that changing regulations of substantive criminal law in the area of mitigate punishment for committing various crimes is the best instrument of combating the phenomenon of overcrowding in Polish prisons.

Instytucja wysłuchania publicznego w sprawie projektów ustaw w Polsce (wybrane zagadnienia)

Author(s): Piotr Uziębło / Language(s): Polish Issue: XXXI/2014

The introduction of the institution of the public hearing to the Polish political system can be considered as an important step associated with the enhanced social participation. Unfortunately, linking public hearing with lobbying was inappropriate, because the institution is also largely used by entities that do not lead professional lobbying activities,which is directly permitted by law. In this context, defining public hearing as a form of popular consultations would be far more appropriate, which is confirmed by the political practice.The public hearing concerning draft laws, which is conducted by parliamentary committees is essential in the legislative process. However, the regulation of the institution in the Standing Order of the Sejm, although relatively consistent, includes some drawbacks.First of all, it creates a possibility of Limiting the availability of participation by all interested entities, and even allows for not conducting it at all. This is due to the optionality of the hearing, which can be organized by the appropriate committee, as well as the right to cancel the public hearing because of the lack of premises or technical reasons that remain largely undefined. The fully positive assessment cannot be also given to the regulation of the course of the public hearing, because it does not provide a real confrontation of views expressed by the participants of the hearing, deputies and the Sejm’s experts. In fact, it is limited to expressing views by persons taking part in the public hearing. Therefore, in the Author’s opinion,the introduction of modifications in order to make the public hearing a real deliberative mechanism should he considered.

O fikcji powszechnej znajomości prawa i nadziei na społeczną znajomość zasad prawa

Author(s): Kamil Zeidler / Language(s): Polish Issue: XXXI/2014

Starting considerations from the counterfactual assumption of overall knowledge of law and combining it with the results of the achievements of the sociology of law in the field of legal awareness, both of a social group and individuals, the question about what in fact constitutes a legal awareness can be posed. Accepting the opinions presented in the literature that legal awareness is on the one hand the overall knowledge of law and on the other hand the evaluation of law and demands to change it, once again a question can be raised of what should be a part of such general understanding of law. In the case of non-professional actors (ordinary people) it is shaped significantly by the experience concerning the law application (understood both broadly and narrowly), as well as the life of a specific legal and political organization (state). In response to these assumptions, the Author presents the opinion that a key element of the overall knowledge of law, which is the part of a legal awareness, is the knowledge of legal principles, particularly the principles of constitutional law.

Odpowiedzialność dyscyplinarna funkcjonariuszy służb specjalnych w świetle koncepcji rzetelnego procesu na przykładzie reżimu dyscyplinarnego Agencji Bezpieczeństwa Wewnętrznego

Author(s): Dariusz Pożaroszczyk / Language(s): Polish Issue: 22/2017

The incentive for contributing this paper is the planned great reform of the Polish Special Services. The study attempts to formulate some requirements that should be met by disciplinary procedure. This goal is achieved by analysing the effective disciplinary procedure in the Internal Security Agency (ABW), the largest branch of the Polish Special Services, in the prism of the idea of fair trial. The assessment conducted of the disciplinary procedure in ABW, leads to the conclusion that the effective law has many shortcomings. Major drawbacks are lack of establishment in respect the supreme rule of disciplinary procedure and lack of clear definition in the application of the general rules of criminal law within the domain of disciplinary procedure. Th e paper concludes that the shortfalls illustrated, should be eliminated as fast as possible in order to adjust the disciplinary regime to modern standards.

Stosowanie przepisów Kodeksu postępowania karnego w postępowaniu dyscyplinarnym adwokatów

Author(s): Izabela Urbaniak Mastalerz / Language(s): Polish Issue: 22/2017

The paper presents the problem of applying the provisions of criminal procedure to attorneys’ disciplinary proceedings. The author will present both the rules that exist under the provisions of criminal procedure and in the attorneys’ disciplinary proceedings, as well as the similarities in terms of appeal and cessation. The starting point for evaluating application of the Code of Criminal Procedure to attorneys’ disciplinary proceedings, will be jurisprudence and achievements of the doctrine in this regard.

Geneza i rozwój dozoru elektronicznego w Polsce w kontekście problemu zmniejszania przeludnienia więzień

Author(s): Fabian Pawlak / Language(s): Polish Issue: 33/2016

Electronic monitoring was implemented in the legislation of Poland in 2007. The overcrowding of prisons was one of the major and most frequently raised issues related to its introduction and amendments in the following years. Along with the electronic monitoring (SDE) system functioning, several measures were taken to improve it and increase its capacity. The purpose of the article was to indicate how the overpopulation problem in Poland affected the legal construction and amendments to the regulations on deprivation of liberty penalty out of prison and within the electronic monitoring system (SDE), as well as to analyse the scale of SDE use. The overview of SDE evolution in Poland suggests that the amendments introduced in 2015 have dramatically reconstructed this institution. The SDE legal construction applicable in Poland since the 15th April, 2016 should make the system more stable and Poland should become, in a relatively short period of time, one of the European countries where electronic monitoring shall be practiced on a mass scale as penalty execution. The increased number of convicts within SDE would enable a significant improvement of the prison overpopulation situation.

Methods and means for building a system of visual images forming in gis of critical important objects protection

Author(s): Mykhailo Vasiukhin,Oleksii Tkachenko,Iuliia Ivanyk,Anisa Kasim / Language(s): English Issue: 18/2013

Requirements for the visualization of dynamic scenes in security systems for are increasing in recent years. This requires develop a methods and tools for visualization of dynamic scenes for monitoring and managing the system of security like “human-operator”. The paper presents a model map data from which is a base for building real time map data, and methods of real time visualization of moving characters in air.

Idea „dobra wspólnego” w kontekście filozofii Platona a jej interpretacje

Author(s): Krzysztof Piotrowski / Language(s): Polish Issue: 1/2017

This article is an attempt to present the basic elements related to the Platonic visionof the common good by reference to the essential ways of understanding the concept of the common good over the centuries. Also defnes the characteristics ofseparation theory, which was proposed by Plato. This difference was to shift thepoint of the importance from individual human to the general public (state). Inthis way, the concept of the common good accentuates concern for the publicwelfare as the cost of the freedom of the human person. For Plato, a person mustsubmit to the community, this is the only way to build a sustainable society

Prawa nie tylko dla kobiet

Author(s): Karolina Głowacka,Eleonora Zielińska / Language(s): Polish Issue: 746-747/2017

Instytucja premii wyborczej jako narzędzie inżynierii wyborczej

Author(s): Bartłomiej Michalak / Language(s): Polish Issue: 4/2017

Electoral bonus is one of the elements of the electoral system with important but little-known politicalimplications. The purpose of the articles is to review the electoral systems that use the mechanismfor granting additional seats, and to identify their political implications. It provides an analysis ofsolutions used in multiple-tier electoral systems and party list-linking mechanisms. The electoralpractice shows that electoral bonuses can be used both to offset the disproportionate results of theelection and to reinforce large parties. This mainly applies to election winners who, due to bonusseats, can receive an absolute majority of seats in parliament without gaining an absolute majorityof votes. It is, therefore, a powerful electoral engineering tool that can signifi cantly correct the effectsof any election formula, for example, from a proportional to a majority one or vice versa.

Disciplinska odgovornost sudija u Republici Srbiji, Republici Hrvatskoj, Republici Sloveniji i Republici Makedoniji

Author(s): Tatjana Kandić / Language(s): Serbian Issue: 3/2016

One of the guarantees of independence of judges is immunity and discipline responsibility. The discipline judicial power includes authorisations to decide upon discipline responsibility of judges and presidents of courts. A normative model of discipline responsibility of judges is a basis for the protection of immunological judicial system and for judges to make quality decision in a reasonable time. Certain countries in transition have synchronised the normative model of discipline responsibility with international standards, while other states create a normative model of discipline responsibility under the impact of political authorities, not obeying international standards, which results in their moving away from international integrations.

Struktura i posebne vrste locatio conductio operis faciendi

Author(s): Miroslav Đorđević / Language(s): Serbian Issue: 3/2014

Most of European private law institutes find their origins in Roman law. This is the consequence of both scarcity of older legal system’s sources and the fact that for the first time in history Romans created one relatively rounded, complete legal system, much like what we have today. However, Roman contract locatio conductio operis faciendi, which is referred as the precursor of letting and hiring of work, presents a different example. It incorporates (in part) modern day contract of letting and hiring of work, as well as several other contractual relations, which makes it very complex. In this paper, the author analyzes locatio conductio opens faciendi in classical Roman law (with reference to the Justinian law), special types of this contract, and the possibility that within its subcontract locatio conductio horrei it included contract of interest bearing deposit. This specific institute of Roman legal history provides good insight into the Roman understanding of certain types of work and the evolution of these concepts in Roman history. It also explains how the foundation of what we today call contract of letting and hiring of work originated and evolved.

Одлучивање о уставним изменама на примеру неких савремених федералних држава

Author(s): Miloš B. Stanić / Language(s): Serbian Issue: 3/2014

Nobody can deny the federal constitution’s importance for the successful functioning of a federal state. Therefore the members of the federal states are interested to take part in the process of decision making on the proposed constitutional amendments. As a matter of fact, it is the last moment when they have the chance to express their final opinion on proposed changes. In this paper the decision-making phase will be analyzed during the constitution’s amendments proceeding. The aim of this work is to present the existing legal solutions and to identify similarities and differences between them. In fact, it is not enough. It was noted that in some federal states, constitution has been adapted to social reality without formal amendment proceedings to be done. Therefore, it is also necessary to point out the role of public authorities, who adapted constitution to social reality through their actions. This is done in the absence of the formal decision on constitutional change which should be set out in accordance with constitution amendments provisions. At the end, it will be necessary to assess both positive and negative aspects of such behavior.

Razvoj kondikcije od rimskog do savremenog prava

Author(s): Valentina Cvetković-Đorđević / Language(s): Serbian Issue: 1/2013

The article is dealing with centuries` long development of condiction as one of the most efficient legal remedies for unjust enrichment. Condiction is derived, like many other institutes, from Roman law. At the beginning, Roman law had only one type of condiction which was applied when a certain amount of money or an individualized item was transferred from the possession of one to the possession of another, without a valid legal title. Due to a creative activity of roman jurists, its field of application was widened. Codex Iustiniana, therefore, has a wide spectrum of different types of condictions applied to various cases of unjust enrichment. Roman law, however, did not overcome casuistic approach which prevented formulating a general condiction which would have the function of general enrichment action. The merit of glossators is that they had sistematized condictions and noticedthe underlying principle of condiction i.e. the prohibition of unjust enrichment. Hence, they suggested that condiction should apply in cases of unjust enrichment which were present in the sources but without assigned legal remedy. Even though glossators recognized enrichment action in condiction, their approach did not depart from that of Roman law. Consequently, they could not extend the application of condiction to the cases of unjust enrichment not known to Roman law sources. The first distinguished thought on condiction as general enrichment action was that of Savigny, the founder of the German Historical School. Savigny pleaded for one type of condiction which would be applied in every case of unjust enrichment i. e. when debtor is enriched to the detriment of creditor without a legal basis or on the legal basis which subsequently ceased to exist. Bearing in mind the application of actio de in rem verso in ius commune, pandectists created a separate institute of unjust enrichment which represented a sublimation of different thoughts on condiction and actio de in rem verso. Valid Serbian law also prescribes separate institute of unjust enrichment which, besides general enrichment action, deals with some particular types of condiction and actio de in rem verso.

Паундова критика механичке јуриспруденције

Author(s): Tijana Perić / Language(s): Serbian Issue: 2/2012

In this article author analyses critics of mechanical jurisprudence of American legal sociologist Roscoe Pound. This critics attacks legal doctrine which was actual in 19th century, according to which legal decision is product of process of formal logics based on legal formalized premises. Mechanical jurisprudence missed the aim of law because it wasn’t taking into consideration non legal elements which are often crucial for bringing legal decision. This jural doctrine was longing for mechanical outcome certainty, what is dogmatically and sociologically unreal. Mechanical jurisprudence was bringing down the role of judge on the logical automat which is able only to use logical instruments, not to taking into consideration sociological side of legal case. Mechanical form of law application expressly banned judges to apply discretional element in adjudication, affraiding of its manipulating and transformation into arbitrary reasoning which isn’t easily predictable.

Повезаност каузе слободе завештања и поклона

Author(s): Vanja Petrović / Language(s): Serbian Issue: 1/2012

The question of the cause is one of the most complicated in legal theory. The essential thread that connects a will and a contract of gift benefaction their properties. Benefaction is the main cause of the cause of testamentary freedom and gift. Because at this point a word about two benefaction legal work and with them the motives are an integral part of the cause, public policy has enhanced the protective function, primarily because of the potential impact on the cause of unlawful motive. Cause sought to explain the causes and consequences of giving without pay. Property is an essential base of the causes of these two legal work, since the person who has nothing in his possession cannot be anything to anyone or leave through a will or gift, according to the ancient rule that the other person does not we can transfer more rights than they themselves have.

Hartova teorija prava – osnovne crte

Author(s): Goran Dajović / Language(s): Serbian Issue: 3/2011

One of the key insights of Hart’s jurisprudence is the idea that legal systems are not only comprised of rules, but also grounded on them. Instead of Austin`s idea of an unlimited Sovereign who makes all of the legal rules, Hart proposed a thesis that the rules actually make the Sovereign. Consistent with this “fresh start”, he also proposed a concept he described as the Rule of Recognition. This rule is a special sort of social rule which determines the status of every other rule as a part of a particular legal system. According to this, the article mainly deals with three questions: Hart's critic of Austin's imperative theory of law and afterwards, with two central tenets of Hart's theory. First of all, it is his theory of social rules (so-called practice theory of rules). In the core of this theory is the idea of internal point of view or acceptance of social rules. The internal point with regard to a certain constant pattern of behavior makes this pattern not only regular, but regulated as well (by the accepted social rule). The internal point makes a difference between two widespread social practices: social habit and social normative practice, exhibited in the social rule. Secondly, author analysis the concept of Rule of recognition. The Rule of recognition is the master rule that exists by virtue of the fact of social acceptance (it is a kind of social rule) and it establishes criteria of validity for all other legal rules. Some of the essential properties of the Rule of recognition as a theoretical concept are listed. In the conclusion, author points out that Hart's crucial theoretical achievement, i.e. his conventional explication of legal system via the concept of the Rule of recognition is still viable and fruitful ground for debates in modern jurisprudence about the nature of law.