(In)Efficient Use of International Law: Case Study of the Dayton System in BiH

Author(s): Tomáš Jungwirth / Language(s): English / Issue: 4/2013

This paper aims to analyse the existent legal and political system of Bosnia and Herzegovina from the viewpoint of effective applicability of international law. It first deals with the general issue of the relationship between international law, domestic political structures and the individual, consequently moving to the specific case study of the Dayton system. The question arises whether such an excessive intervention was at all capable of establishing a stable institutional framework and of uprooting the enmities between the sides to the conflict. Certain criteria for the effective application of international law are drafted, in light of which the presented data are evaluated. A critical conclusion follows, defining the key setbacks of the Dayton system and hinting to possible alternative approaches.

(Ne)konzistentnost “diferenciranog građanstva” u Preporukama za promjenu Ustava Federacije BiH

Author(s): Nedim Kulenovic / Language(s): Bosnian,Croatian,Serbian / Issue: 13/2013

Jedna od karakteristika ustavnih sistema u BiH, pa i onog Federacije BiH, jeste postojanje interne antinomičnosti koja se ogleda u činjenici da su “pojedina ustavna rješenja uzajamno proturječna, i da se, unatoč jednakoj pravnoj snazi, uzajamno isključuju”. Ekspertna grupa za reformu Ustava Federacije Bosne i Hercegovine (Ekspertna grupa) za regulativno područje ljudskih prava i osnovnih sloboda u Ustavu FBiH zapaža da u smislu antinomičnosti postoji “nekonzistentnost” između garantovanih ljudskih prava. Posebno se ističe pravo na nediskriminaciju iz normativnog dijela i preambule Ustava FBiH, gdje se vrši “nominalno razlikovanje” nosilaca suvereniteta, a što u konačnici vodi “različit[om] tretman[u] u pravima”.

(Ne)konzistentnost „diferenciranog građanstva“ u Preporukama za promjenu Ustava Federacije BiH

Author(s): Nedim Kulenovic / Language(s): Bosnian / Publication Year: 2013

U ovom veoma kratkom osvrtu razmotrene su posljedice koje dalja institucionalizacija „diferenciranog građanstva“ ima po prava pripadnika grupe koja se prethodno imenovala kao „Ostali“. Iako nisu provedena dublja teorijska razmatranja samog koncepta „diferenciranog građanstva“, i njegove opravdanosti u bosanskohercegovačkom kontekstu, uočen je značajan stepen nekonzistentnosti u njegovom modeliranju u Preporukama ekspertne grupe. Naime, ovakvo rješenje može rezultirati daljim različitim postupanjem, sada između dvije kategorije „Ostalih“, odnosno pripadnika nacionalnih manjina i etnički neopredijeljenih, a čije je barem pravno opravdanje veoma upitno. Ako je ovo zaista bila namjera Ekspertne grupe takva vrsta sistematskog isključivanja jedne kategorije građana iz participacije u strukturama vlasti FBiH zahtijevala bi naročitu vrstu opravdanja – kako s aspekta prava, tako i političke teorije – a koja ni u Preporukama, ni u Analizi, nije ponuđena. Ukoliko je, međutim, ovo posljedica omaške u formulisanju preporuka, nužno je pristupiti njihovom temeljitom usklađivanju, od definicije Federacije pa na dalje, s obzirom da se ova „greška“ spominje u više od dvadeset preporuka. Mora se na kraju upozoriti da još uvijek postoji teorijsko neslaganje u pogledu izvršenja balansiranja između etničkog i građanskog elementa u ustavnopravnom uređenju BiH. To je rezultiralo različitim institucionalnim modelima, od onog na nivou države i entiteta, do Brčko Distrikta BiH, odnosno Kantona Sarajevo, koji se karakterišu različitim intenzitetom etniziranja prava, odnosno diferenciranja građanstva. Nužno je biti pažljiv kako se u daljim pokušajima pluralizacije postojećih etnokratskih aranžmana na nivou entiteta ne bi prekludirala mogućnost da se naročito u kantonima – koji će sada postojati kao pojedinačne „laboratorije etničkog upravljanja“ – osigura veći spektar prava pripadnicima nacionalnih manjina i etnički neopredijeljenim od onoga što je moguće ostvariti na Federalnom i višim nivoima vlasti.

(Nie)konstytucyjne przeciwdziałanie przestępczości na tle seksualnym wobec nieletnich

Author(s): Natalia Woszczyk / Language(s): Polish / Issue: 3/2018

The article addresses the issue of alterations to the bill preventing sexually motivated crime in relation to the constitutional rights. The author presents and analyses the new regulation with emphasis on the unknown for the polish legal system solutions such as Sex Offenders Registry which will be accessible in two versions: with limited access and to the general public, and a publicly available map of sexual crime threats. What is more, doubts are raised as to the effectiveness of the measures to reduce sexual offenses.

0 uzrocima krize zajedništva i različitim idejnim koncepcijama

Author(s): Zdravko Tomac / Language(s): Croatian / Issue: 04/1982

The widely differing opinions voiced on the causes of the crisis in Yugoslav commonness are the result of different ideological tendencies. The author analyzes those views which seek the causes of the crisis in the constitutional model of Yugoslav federalism and argues against such concepts. The article points out to certain substantive deviations in the practical functioning and development of some institutions from their concept as defined in the constitution and considers them the main causes of the difficulties in realizing Yugoslav commonness. Detailed account is made of the reasons why the character of statehood of the constituent socialist republics has strengthened, why the notions of state and nation are being increasingly identified. The causes of group-property tendencies are outlined, with special reference to the problem of realisation of the constitutional concept of the federation. The conclusion is suggested that the main cause of the crisis of commonness lies in the growing tendency reduce Yugoslav federalism to relations among republic-states in the tact that almost all interests are mediated through the republican states, and in the failure to evolve in practice the constitutional model of association and linkage of different interests through self-management and without the mediation of republican states.

1866-1947: CONSTITUŢIONALISM ŞI AUTOCRAŢIE LA ROMÂNI

Author(s): Ioan Stanomir / Language(s): Romanian / Issue: 83/2016

The aim of this paper is to trace back the origins of the two conflicting traditions that exist within the framework of the Romanian constitutional history. Between 1822 and 1947, the Romanian constitutional dynamics has been shaped by the aspiration to borrow extensively from the belgium, french and english public law, with the purpose to set up a political regime of constitutional monarchy and ideological moderation. The 1866 constitution is the climax and the coronation of this prolonged effort. There is, however, an alternative legal paradigm evolving in the same period, an alternative promoting the idea of autocracy. By eliminating the checks and balances guarantees and by curtailing severely human rights, this autocratic approach managed, between 1938 and 1944, to impose its own agenda, by dismantling the rule of law state. The legal and political conversation between these two traditions is at the the very centre of Romanian modernization.

20 Years of “Autonomy” For the Gagauz: Reflections on Devolutionary Trends in the Republic Of Moldova

Author(s): Larisa Patlis,Judithanne Scourfield MCLauchlan / Language(s): English / Issue: 01/2015

The Republic of Moldova, a small country landlocked between Romania to the west and the Ukraine to the east, is arguably the most complex of the fifteen countries born out of the collapse of the Soviet Union. Moldova is a borderland that is deeply divided between Romanian speakers drawn towards the European Union and Russian speakers who continue to feel the tug of old ties to Moscow. While Moldova may be on the path toward European integration, in many ways it is a country stuck in the unresolved problems of a Soviet past, especially with respect to territorial and national integrity. Our research will focus on the devolved region in the Republic of Moldova: Gagauzia. Much scholarship is devoted to study of the de facto state of Transnistria, but the situation in the autonomous region of Gagauzia is no less important. Upon the 20th Anniversary of the Gagauz Autonomy, we will provide an overview of the developments in Gagauzia from the proclamation of the Gagauz Republic and the conflict it generated to the present state of affairs in Gagauz Autonomy. We will then evaluate problems and prospects for devolution in Moldova, identifying some acute issues in Chisinau‐Komrat relations. Onceconsidered a success and a potential model for settlement of other conflicts in post‐ Soviet space, we will consider whether autonomy in Gagauzia has been achieved.

2010 Amendments to the Polish Energy Law

Author(s): Filip Elzanowski / Language(s): English / Issue: 5/2011

2014 ALTERNATIVE PROGRESS REPORT: POLITICAL CRITERIA

Author(s): / Language(s): English / Issue: 3/2014

This is the second Alternative Progress Report on Bosnia and Herzegovina’s path towards the EU membership. The report is a joint effort of dozens of individuals and organizations whose common goal was to show the current state of integration of Bosnia and Herzegovina from the perspective of civil society organizations. Having in mind that the official Progress Report on Bosnia and Herzegovina is a political report of the European Commission, we believe that the publication of the Alternative report can affect its content. Because of this, we are publishing this Alternative Progress Report nearly three months before the publication of the official one, hoping that it will have an impact on the formulation of the formal report. The report completely relies on the so-called political criteria, focusing on the following questions: - Democracy and the functionality of the State, - Rule of law and corruption, - Human rights, especially the rights of minorities and vulnerable groups, and - Transitional Justice During the 2013 and 2014, we have witnessed that no relevant progress has been achieved. The process of implementation of the Sejdić and Finci v. Bosnia and Herzegovina ruling is completely displaced from the Parliament. Performance of the democratic parliaments and governments on state, entity and cantonal levels is extremely low. The work of the institutions is characterized as unstable, inefficient and with notable lack of transparency. The decisions of the constitutional courts are still not implemented. No significant and systematic policies to combat human rights violations have been adopted. Judicial reform has been stopped and Structured Dialogue on Justice between B&H and the EU does not show any progress. Not a single significant case of corruption has been processed. Minority and vulnerable groups still live in difficult conditions. Discrimination and violence are all-present, and the law on prohibition of discrimination did not show the expected results, having in mind that five years after the enactment of the law, only two final judgments were passed. Comprehensive anti-discrimination policies for social integration either do not exist, or are almost never applied. Floods additionally hit the most vulnerable groups in society. Furthermore, the most vulnerable groups in society have been affected by the recent floods. The prosecution of war crimes and dealing with the past, as prerequisites for creating a healthy environment and building a common state, represent an additional problem. Political support for war criminals by the leaders of political parties only further divide the already highly fragmented society. We hope that the general elections in October of 2014 (although held by discriminatory rules) will bring more stable political structure, ready to face different problems. Initiative for the Monitoring of the European Integration of Bosnia and Herzegovina will certainly advocate change, in terms of adopting new laws and policies, and the implementation thereof. We also hope that the BiH authorities and the EU institutions will support a stronger representation of civil society within the various forums within the EU integration. Civil society must become the third actor in this process along with the State and EU institutions.

24. konference Církev a stát, Brno, září 2018

Author(s): Záboj Horák / Language(s): Czech / Issue: 73-4/2018

51. kongres Essener Gespräche zum Thema Staat und Kirche, Mülheim an der Ruhr, březen 2016

Author(s): Záboj Horák / Language(s): Czech / Issue: 64-2/2016

52. kongres Essener Gespräche zum Thema Staat und Kirche, Mülheim an der Ruhr, březen 2017

Author(s): Záboj Horák / Language(s): Czech / Issue: 67-2/2017

A “Constitutional” Coup in Hungary between 2010–2014

On Some Aspects of the Exclusive Systemic Exercise of State Power with Regard to Constitutional Law, International Law, and European Law

Author(s): Imre Vörös / Language(s): English / Publication Year: 0

The Fundamental Law, drafted in 2011 and instituted on 1 January 2012, was amended no less than five times over a year and a half.Hungary’s sitting prime minister since 2010 had formulated his intent to stay in power for an extended period of time in his state-of-the-nation speech delivered in Kötcse, as early as 9 September 2009. As well, he expounded the necessity of building a system of political institutions that could guarantee the realization of this plan, practically by establishing a one-party state. His idea of a “central field of power,” especially if designed for the long term, was neither reconcilable with democracy, nor with a multiparty system, let alone with the electoral law which was in force until 2010.

A Brief Review of Scholarly Events in Legal History in Ukraine in 2016

Author(s): Roman Shandra / Language(s): English / Issue: 2/2017

A Brief Review of Scholarly Events in Legal History in Ukraine in 2016

A Common Good in Doctrinal and Legal Terms. An Attempt at a Holistic Approach

Author(s): Pawel Sydor / Language(s): English / Issue: 9.1/2018

The aim of the article is to present two opposing visions of the common good (value) in the history of political and legal doctrines. Such outline of extreme positions allows the author to assess the wide range of doctrinal differences in particular epochs and to impose the principles of the rule of law expressed in art. 2 of the Constitution in the historical tradition derived from the ancient republicanism and political and legal thought of the Middle Ages and which absorbs the postulates of modern liberalism, republicanism and conservatism, based on the democratic model.

A Comparative Study on the Subjects of a Legal Conflict of Constitutional Nature in the European Space

Author(s): Elena-Cristina Murgu / Language(s): English / Issue: 49/2016

It is a fact that nowadays the legal conflicts of constitutional nature have become a substantial problem in the institutional architecture of the states, due to their importance generated, on one hand, by the subjects involved in such a dispute and, on the other hand, by their uncertain and misleading content. These are the main reasons why only the Constitutional Courts or Federal Tribunals can be invested, by certain institutions, with the settlement of the legal conflicts of constitutional nature. In the European space, this matter acquired significance by the instrumentality of the fundamental laws. To express it more clear, almost every Constitution precisely and concrete states the subjects between which a legal conflict of constitutional nature may arise. Evidently, we could not assert that, regarding their nature, there is an identity of subjects of the legal conflicts of constitutional nature in several European countries. It is precisely the opposite of those mentioned above: the nature of the subjects involved in such disputes varies depending on the constitutional and administrative structure of the countries, on the form of government of the states, on the public authorities representing the powers of the states. Therefore, the subjects of a legal conflict of constitutional nature represent a defining element in any attempt to determine whether a conflict is of a constitutional nature or of any other nature. Taking into consideration such aspects, we can claim that the first step towards establishing the constitutional nature of a legal conflict is to identify and determine the subjects of such dispute.

A jedan razlog menja sve: kontrola ustavnosti Briselskog sporazuma u svetlu doktrine političkog pitanja

Author(s): Violeta Beširevic / Language(s): Serbian / Issue: 1-2/2016

On December 10th, 2014 the Constitutional Court of Serbia rendered a decision declaring itself incompetent to review so-called „Brussels Agreement“, governing the normalization of relations between the Government of the Republic of Serbia and Interim Institutions of Local Self-Government in Priština. The Constitutional Court based its decision on procedural grounds, finding that neither Brussels Agreement nor internal acts adopted by the Serbian Government and National Assembly with regard to that Agreement, could be subjected to judicial review in accordance with Article 167 of the Serbian Constitution. The author of this article agrees with the Court decision, but not with its reasoning leading to a denial of jurisdiction. The article offers alternative road to a declaration of incompetence, which the Court could have reached following the separation of powers principle and the political question doctrine. Starting from the comparative constitutional jurisprudence, the contents and aims of the Brussels Agreement, as well as political context in which it was reached, the author of this article has shown the following: (a) the Brussels Agreement was not reached in order to allow the refunctioning of the state power on the territory of Kosovo and Metohija, but to protect the Serbian people living at KiM and general state interests to the extent possible in the given political situation, until the re-establishment of full sovereignty; (b) the Constitutional Court could not establish its jurisdiction ratione materiae and decide whether the protective mechanisms, envisaged in the Agreement, that is – the establishment of a Community/ Association of municipalities in which Serbs represented a majority of the population, as well as organization of judicial power and police units, could have protected Serbs and general state interests in Kosovo and Metohija, because this was a political question which was unjusticiable and could not be resolved by legal standards.

A környezeti oktatás jövője

Author(s): Máté Julesz / Language(s): Hungarian / Issue: 3/2012

A környezetvédelem oktatása alapvetően pedagógiai feladat. A pedagógiai feladatok azonban nem választhatók el teljesen a szabályozási környezettől, hiszen a különféle – szakmai, jogi, erkölcsi stb. – normák határozzák meg a pedagógia mozgásterét. Tehát azt a mozgásteret, melyben az iskolai oktatás folyik.

A közszolgálati média alkotmányos helyzete, problémái a posztkommunista korszakban – a magyarországi tapasztalat

Author(s): László Majtényi / Language(s): Hungarian / Issue: 28/2015

The lecture analyzes the changes in the functions of public broadcasting within the digital era. It demonstrates the control models of public broadcasting with a special focus on Eastern Europe. In addition, it gives a detailed insight into the Hungarian experience: starting from the regime change, until its practical burnout in the illiberal state. In the author's opinion, despite the negative experience, there are very strong arguments for the maintenance of public media broadcasting in a country like Hungary that is so isolated language-wise, and that has such a small media market. To make this happen, the author thinks that cheap and professional control system is needed.

A magyarországi obszerváns ferencesek 1499. és 1518. évi konstitúcióinak prológusa

Author(s): Balázs Kertész / Language(s): Hungarian / Issue: 04/2016

The Hungarian Observant Franciscan vicary, established in 1448, underwent a thoroughgoing reorganization at the end of the 15th century. The chapter (capitulum vicariale) held in 1499 at the monastery of Atya (today Šarengrad, Croatia), accepted constitutions which determined in detail the organisational structure and functioning of the vicary. These, in fact, are the earliest known decisions of the vicary. The author of the regulation was Osvát Laskai, much better known as a writer of sermons, who was three times elected for the two year vicarial office (1497–1499, 1499–1501, 1507–1509). The long work consists of two parts: while the first defines the offices of the superiors, that is, of the vicar, the custodes, the guardians and the visitors (visitatores), the second regulates the everyday life of the friars through an explanation of the Franciscan rule. The constitutions of Atya are not available in a modern critical edition, its only edition of 1827 being based on one single manuscript. That important milestone in the history of the Franciscan Order, the Roman capitulum generalissimum of 1517, and Pope Leo X’s Bull of Ite vos in vineam meam, naturally effected considerable changes in the life of the Hungarian vicary as well. For instance, the Hungarian vicar also became a minister, and the area under his supervision was consequently called a province. In reaction to the changes, the friars of the new province gathered in 1518 for an extraordinary chapter, under the leadership of provincial minister Albert Dereszlényi, at the tomb of Giovanni da Capestrano at Újlak (Ilok, Croatia). The importance of the constitutions of Atya is reflected by the fact that in 1518 the regulation of 1499 was merely updated in accordance with the new conditions. Among others, the necessary terminological modifications were carried out: vicary was changed to province, vicar to minister, and capitulum vicariale to capitulum provinciale. The text of the constitutions of Újlak has never appeared in print. The two sets of constitutions are thus closely connected to each other. The present study offers the description and edition of their respective prologues, a preliminary to the forthcoming critical edition of the two regulations.