W sprawie projektu ustawy o zmianie ustawy o wykonywaniu mandatu posła i senatora autorstwa grupy posłów Klubu Parlamentarnego Kukiz’15

Author(s): Bogumił Szmulik / Language(s): Polish Issue: 5/2018

The author analyzes the legal nature of the parliamentary mandate as regards a conceivable possibility of limiting the age of a holder of a mandate of a Deputy or Senator. Also, matters related to the principle of the supreme power of the nation and the nature of the legislative power are analyzed. Constitutional bases for the exercise of a parliamentary mandate are discussed, as well as legal restrictions as regards the effective regulation of the status of a Deputy or Senator in a legal act of a rank of a statute.

The Contribution of the Romanian Constitutional Court to the Application and Development of the Law: Interpretive and Suppletive Jurisprudence

Author(s): Alexandra Oanţă (Nacu) / Language(s): English Issue: 53/2017

Judicial practice of the Constitutional Court is particularly important from the point of view of law enforcement and development. This jurisprudence can be of two kinds: interpretive and suppletive jurisprudence. When certain constitutional or legal rules give rise to several interpretations, the court which performs control of constitutionality is trying to give a fair and uniform interpretation of these legal texts, in which case the interpretation becomes part of the norm (interpretative jurisprudence). The Constitutional Court of Romania has contributed to the clarification of the meaning of certain terms (public property, freedom of contract, discrimination, autonomy, etc.) and to the explanation and development of the principles of law. On the other hand, if the constitutional text is incomplete or ignores certain institutions which are absolutely necessary, it is judicially completed through court order (suppletive jurisprudence). For example, in this way, in Romania, even before there was a settlement of the constitutional review, the judgment of the Ilfov Court in the famous „trams affair” in 1912 resulted subsequently in filling, judicially, the Constitution of the 1866 with rules on the control of laws’ constitutionality. Another issue addressed in this article refers to the Constitutional Court's jurisprudence concerning the relationship national law Community/European law. In some cases, the Constitutional Court considered itself competent to analyse compliance of national law with the Community norms; in others, however, the Court interpreted Community law in order to be able to exercise the control of compliance. As methodology, the author has used comparative and interpretative method, aiming to achieve an overview of the jurisprudence of the Constitutional Court of Romania.

Konstytucyjny nakaz ponoszenia ciężaru podatków – wybrane zagadnienia

Author(s): Rafał Bernat / Language(s): Polish Issue: 23 (3)/2018

The Polish Constitution stipulates that everyone is obliged to bear the burden associated with the taxes under the enactments. The article’s purpose is to explore the scope and subject of this principle. Referring to the views prevailing in the judicature and the legal literature, the author will try to explain how the term “each” contained in the Rule 84 of the Constitution of the Republic of Poland, should be understood. In addition, the analysis will include the nature of the taxes which can be assigned to individuals in accordance with the Rule 217 of the basic enactment. In the publication analytical and linguistic-logical method were used. As a de lege lata proposal assumes that the obligation to bear the tax burden is not associated with citizenship and countervailability of a non-resident of another jurisdiction doesn’t exclude outright weight referred to in art. 84. The obligation to regulate the structure elements of the tax in the form of law to the benefit of stability and certainty of tax legislation. With regards to the legislative procedure in view of the importance of tax legislation – do not use a fast – track procedure. The author concluded that there were no grounds for the preaching of de lege ferenda postulates in the needed changes in the provisions of the Constitution of the Republic of Poland relating to taxes as enactment is appropriate.

Asociaţia – persoană juridică de drept privat în legislaţia românească

Author(s): Irina Olivia Popescu / Language(s): Romanian Issue: 27/2010

The creation, organization and functioning of the association, as legal subject are regulated by Law no. 26/2000. According to this legal document the association is the legal subject consisting of at least three persons who give their consent in order to affect their knowledge, material contribution and work, in order to realize a public interest activity. The association becomes a legal person when it is subscribed in the Registry of associations and foundations, kept by the Court which has legal jurisdiction according to the headquarters of the association. The functioning of the association is realized through its organs, the General Assembly, the Conducting Committee and the Controller. The association can be declared as a public good association if it fulfills some special conditions.

Reform of the Competition Procedure for Judges in Ukraine

Author(s): Oksana Shcerbanyuk / Language(s): English Issue: 2/2018

The article is devoted to the problems of constitutional implementation of the competitive selection of judges. The practice of conducting competitive selection of judges is investigated and the necessity to improve its normative-legal support, in particular, the definition of the principles of conducting the competition and specific criteria for determining professional ethics and integrity of a candidate for a judge's position, is urgent. The relevance of the study of the problem of constitutional implementation of the competitive selection of judges is due to the aspirations of Ukraine through constitutional, legal and judicial -legal reforms to overcome the critical attitude to the judiciary, justice, judicial protection the rights and freedoms of the individual and to restore public confidence in the court. The purpose of the article is to study the problems of constitutional implementation of the competitive selection of judges, identify shortcomings, gaps in the provisions of the law and search for solutions to this issue. It is established that the legal mechanism of selection of candidates is intended to provide an objective assessment of not only their professional but also personal and moral qualities. The practice of conducting competitive selection of judges and the necessity to improve its normative and legal support, in particular, the definition of the principles of conducting the competition and the specific criteria for determining the professional ethics and integrity of a candidate for a judge position, is being investigated.

Constitutional interpretation - art. 132 par. (1) of the Romanian Constitution, republished

Author(s): Gabriela Nemtoi / Language(s): English Issue: 2/2018

The justification of the interpretation is the very existence of constitutionaltexts. The first functional justification is that interpretation is the condition of lawenforcement.The interpretation of the Constitution cannot be considered a purelyscientific act, it is, in the first place, a manifestation of will imposed by thecompetent authority, in this case the Constitutional Court. Interpretations that claimto be true or correct are self-conceived as acts of knowledge, the result of ascientific approach, for only a scientific act may be true or false. Will manifestationscan only be valid or invalid. However, legal interpretation in general is merely aclarification of the meaning of a legal norm in place.In this respect the Constitutional Court, in a jurisprudential momentum wesay unlimited, re-enforce legal texts repealed plays often extensive constitutionalprovisions, establishes standards and incompatibilities, empower thePresident's rule etc. All in the name of the justice to interpret theConstitution and the laws. And all, of course, under the banner of therule of law!

The Special Procedure “La Saisine Pour Avis de la Cour de Cassation”. Legal Background and Importance

Author(s): Iulia Boghirnea / Language(s): English Issue: 3-4/2018

The French legislator has created in 1991 the procedure of the “notification for opinion” (la saisine pour avis) of the Court of Cassation as a procedural incident which solves a new legal issue arose in a pending trial, which presents serious particularities for the judges of the litigation and to which it depends the solution of the first court. In this article, the author analyzes the French incident legislation and the importance of the notification for opinion of the Court of Cassation, scientific approach having as purpose the understanding of such procedure from the perspective of the adoption of a similar one in the Romanian legislation

Historical and Comparative View on Human Dignity in Constitutional Law

Author(s): Izabela Bratiloveanu / Language(s): English Issue: 35/2012

The consequences of the Second World War were catastrophic; after these events of a unique severity and distribution in human history, the belligerent countries emerged from the war ruined both from a financial and a moral point of view. Up to that point, being the attribute of philosophy and religion, the notion of human dignity was taken over by the main international documents on human rights and constitutional law. In this paper we intended to make a presentation from the historical point of view of this concept in the Romanian constitutional law and in the comparative constitutional law, focusing on the German, French, Spanish, Austrian, Italian and former communist states law. In the Romanian law, overcoming the communist period meant the development of a new Constitution, in accordance with which Romania has an axiological legal system, granting an important place to the values stated in Article 1 paragraph 3 of the Constitution, namely human dignity, the rights and freedoms of the citizens, the free development of the human personality, justice and political pluralism.

Rolul Curții Constituționale în definirea regimului politic românesc postcomunist

Author(s): Vladimir-Adrian Costea / Language(s): Romanian Issue: 02/2019

This article investigates how the postcommunist Romanian political regime was defined, with particular emphasis on the settlement of legal conflicts of a constitutional nature through the decisions of the Constitutional Court. Through this research we aim to identify the successive incarnations of the political regime, having as a reference the dynamics of the postcommunist Romanian political regime in relation to the continuous and varied relationship of the forces of political actors, as well as to the way in which they interpret and apply the constitutional norms. The originality of this research lies in the fact that in the analysis of the Romanian political regime we will combine the normative-institutional perspective with the perspective of the political and institutional practice, in order to obtain a complex picture, overall, on the way of formation and articulation of the Romanian political regime. The article highlights a permanent evolution of the political regime in relation to the continuous and varied relations determined by the forces relations of the political actors, as well as by the way in which the constitutional rules are interpreted and applied by them. The intrusion into the Constitutional Court’s jurisprudence in settling legal conflicts of a constitutional nature confirms the analysis of the political scientist Giovanni Sartori, according to which the alternation of the nature of the post-communist Romanian political regime is determined by the political and institutional practice built in relation to the political relationship between the president and the parliamentary majority. Defining the nature of the Romanian political regime helps us to understand the dynamics and frequency of constitutional crises.

Judiciary in the Serbian Constitution of 2006 and a Critical Review of Draft Amendments

Author(s): Marko Stanković / Language(s): English Issue: 4/2018

This article analyzes the position of judiciary in the Constitution of the Republic of Serbia. Legal norms on the organization of judiciary are one of the most important segments of constitutional matter, having in mind that for the functioning of democracy it is important to ensure complete independence of the judiciary from so-called “political authorities” – legislative and executive. The independence of the judiciary can only be ensured by the constitution. However, the Serbian Constitution of 2006 has taken a different stand on this part of constitutional matter, giving the legislator a wide authority to regulate substantive issues relating to the judiciary (election and dismissal of judges), which largely subordinates judicial power to the legislative. First, the constitutional norms on judiciary will be analyzed in this paper. The Serbian Constitution contains five key issues related to the independence of judiciary. Further analysis will include proposed amendments to the Constitution. Ministry of Justice’s Working Version of the Draft Amendments to the Constitution has not adequately solved any of five problems. Finally, useful conclusions about the position of the judiciary in the Republic of Serbia will be drawn.

NUSIKALTIMAS, KAIP APKALTOS PAGRINDAS: KAI KURIE TEORINIAI IR PRAKTINIAI ASPEKTAI

Author(s): Vytautas Sinkevičius / Language(s): Lithuanian Issue: 2/2018

Under Article 74 of the Constitution, the President of the Republic, the President and justices of the Constitutional Court, the President and justices of the Supreme Court, the President and judges of the Court of Appeal, as well as any members of the Seimas, who grossly violate the Constitution or breach their oath, or are found to have committed a crime, may be removed from office or have the mandate of a member of the Seimas revoked by a 3/5 majority vote of all the members of the Seimas. This is performed through impeachment proceedings, which is established by the Statute of the Seimas. In its ruling of 25 May 2004, the Constitutional Court stated that the institution of impeachment is a method of public democratic control over the activity of the President of the Republic and the other state officials listed in Article 74 of the Constitution and a method of holding such officials liable, where the said method includes, inter alia, the possibility of removing them from office if they fail to fulfil their obligation to follow only the Constitution and law, if they place their personal or group interests above the interests of society, or when they bring discredit on state power by their actions. One of the grounds of impeachment is being “found to have committed a crime”. The persons referred to in Article 74 of the Constitution may be removed from office not only for the commission of a crime by which the Constitution was grossly violated and the oath was breached, but also for the commission of any other crime. Under Paragraph 1 of Article 30 of the Constitution, only a court may hold that a person has committed a crime. However, in the course of carrying out impeachment proceedings, the Seimas itself (in the absence of a court judgment) may hold that the persons referred to in Article 74 of the Constitution have committed a crime. If they have committed a crime while holding the office specified in Article 74 of the Constitution, the circumstance that the crime has been committed may be established by the Seimas itself only if the fact of the commission of the crime (as well as the official who committed it) is obvious, and also when the President of the Republic is being impeached. In the event that a crime had been committed by the President and justices of the Constitutional Court, the President and justices of the Supreme Court, the President and judges of the Court of Appeal, or a member of the Seimas before they took office, the fact of committing a crime may not be considered obvious; in such cases, a court must determine the circumstances relevant to the application of impeachment, i.e. the fact that a crime was committed (together with the official who committed it). The circumstance that a person committed a crime before taking the office of the President of the Republic can only be established by the Seimas and only when the crime is obvious. The statement of the Seimas that a person referred to in Article 74 of the Constitution has committed a crime or the statement of the Constitutional Court that such a person has committed actions for which liability is provided for in the Criminal Code is not the same as a convicting judgment of a court rendered in a criminal case. Impeachment does not mean the application of criminal liability even if a crime constitutes grounds for impeachment. If a person referred to in Article 74 of the Constitution has been removed from office through impeachment proceedings, or his/her mandate of a member of the Seimas has been revoked for a gross violation of the Constitution, a breach of the oath, or for such a crime by which the Constitution was grossly violated and the oath was breached, he/she may never in the future hold such office whose beginning is linked with taking the oath provided for in the Constitution.

Australia: wyrok Sądu Najwyższego z 27 października 2017 r. w sprawie Re Canavan i inni, sygn. (2017) HCA 45

Author(s): / Language(s): Polish Issue: 6/2018

In its judgment, the High Court of Australia interpreted Article 44 of the Constitution, stating that “Any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power, shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives”. The case referred to six senators and one member of the House of Representatives elected in the elections of 2 July 2016. It was to be decided, whether their dual citizenship allows them to exercise the mandate of an MP. It stems from the judgment that the citizenship of another country— even if it is involuntary — shall result in the expiry of the holder’s mandate.

Czy w Polsce są wolne sądy? Ocena z perspektywy trzech lat walki o praworządność

Author(s): Krystian Markiewicz / Language(s): Polish Issue: 4/2018

The independence of the courts and judges, together with the administrative supervision of the Executive, has long been one of the most sensitive problems in the Judiciary. In this article, the author analyses the statutory changes introduced in the broadly understood judiciary system in the years 2015–2018 and the systemic practice in the context of implementation of the constitutional right to court and the independence of courts and judges. The resulting analysis is the basis to formulate an answer to the titular question: are there free courts in Poland?

CONFLICT OF THE AUTHORITY OF JUDICIAL POWER AND NON-JUDICIAL INSTITUTIONS

Author(s): Srđan Jončić / Language(s): English Issue: 4/2018

The subject of the analysis of this paper is the mutual relation between the judicial authorities and non-judicial institutions, those whose decisions directly or indirectly influence the exercise of judicial power . The author's attention will not be directed towards relations with institutions of legislative and executive power, but on non-judicial institutions that do not belong to governmental ones, and have an impact on judicial decision making. This relationship will be presented through the prism of the conflict of authority, which is based on the institutional position of the analyzed institutions, the legal effect and the possibility of reconsidering their decisions, and the conflicting relationship in the decision making process. The complexity of the analyzed relationship also speaks of the dilemma of the author regarding the name of this paper, so the analysis can thus be described as “the interrelation of the judicial authorities and non-judicial institutions, as an attachment to the functionality or dysfunctionality of the legal system”, “encroaching on powers of judicial authorities by non-judicial institutions”, “allowed and disallowed operation frameworks for non-judicial institutions in relation to the exercise of judicial power”, or “conflict of jurisdiction between regular courts and non-judicial institutions”. It seems that, regardless of the different angle of observation, and the different marking of the disputed points, the essence of the disputed relationship is precisely the authority of the analyzed institutions, the conflict based on legitimate reconsidering of judicial decisions (a real conflict of authority), and a potential conflict in case of an illegitimate impact (not real conflict of authority).Non-judicial institutions whose relationship with the judicial ones is being considered are the Constitutional Court and the State Audit Institution, which, regardless of whether it is an allowed or disallowed influence, have the possibility, due to the nature of their position and the nature of the decisions, influence the exercise of judicial power.

IDENTIFICĂRI EPISTEMICE RECURENTE CONSTITUȚIONALE

Author(s): Constanța Călinoiu / Language(s): Romanian Issue: 37/2019

Our work addresses an area of recurrent epistemic identifications necessary for constitution and constitutionalism as postmodern forms of evolution of societies structured in an international context. As we know, the constitutional consciousness of society is objectively determined to derive and generate legal doctrines from ancient times to the present, the ideas of classics in the field of legal regulator of society (passim). The axiological and praxiological prerequisites of a constitution writing reside in the profile of society, state, law, politics and morality. The current trend is that the practice of judicial review of legislation should be dropped in constitutional bills of rights and political decisions left to people and elected and accountable representatives.

ROLE OF THE PROSECUTOR'S OFFICE IN THE NATIONAL SYSTEM OF FIGHTING TERRORISM IN UKRAINE

Author(s): Oleksandr Shamara / Language(s): English Issue: 2/2018

The paper presents the research on the Role of the Prosecutor of Ukraine in the national system of counteracting terrorism. In the paper the author undertook an attempt of the analysis of Ukraine legislative system in the field of current (as of 30/09/2018) legal tools to counter terrorism, including Constitution of Ukraine, Prosecutor of Ukraine Law, National Security Law and the Act on combating terrorism.

Dreptul constituțional ca ramură a dreptului public

Author(s): Cristian Ionescu / Language(s): Romanian Issue: 04/2019

In this article, the author proposes to analyze the place and role of the constitutional law in the legal system, starting from the object of regulation of its norms: establishing the modalities of organization and functioning of the state and, within these, the forms of exercising and transmission of the powers through democratic electoral procedures, as well as of the fundamental rights and freedoms of citizens. The constitutional law has received in doctrine a wide range of definitions in the doctrine, all authors emphasizing the quality of constitutional law to underlie the structuring of the national legal order, in the sense that all branches of law reside, at the level of general principles, in the constitutional law. The author states that the constitutional law norms are meant to protect and capitalize the most general interests of the society and of the state, as well as the fundamental values of a politically organized human community geographically located on a determined territory. Due to its structural role in the organization and functioning of the system of law, constitutional law sets guidelines for the other branches of law, takes over from these norms to which it is conferred the legal force of a constitutional norm and thus contributes to the shaping of a pyramidal hierarchy of norms of law depending on their legal force. At the bottom of the pyramid it is placed the Constitution, to which all the other norms of law are subordinated. The author also deals with the constitutionalization of the law, a process that results from the extension of the constitutional regulation of some social relations reserved by tradition to other branches of law.

Termenele de formulare a plângerii prealabile prevăzute de Legea contenciosului administrativ

Author(s): Mihail C. Barbu / Language(s): Romanian Issue: 04/2019

In the context of the amendments operated on the Administrative Disputes Law No 554/2004 by the Law No 212/2018, the author proposes to analyse the time limits in which the prior complaint can be filed and to analyze each of them separately, by grouping them according to the subject of the prior complaint and to the object of the prior complaint.The author makes the transition from the time limits imposed on the addressees of the administrative act to the time limits imposed on third parties, in the situation of the typical and assimilated individual administrative act, by investigating the length of the time limit, the moment from which it starts, the legal nature or the applicable legal regime and the sanction applied in case of non-compliance with these time limits. The main time limits within which the prior complaint can be filed are analyzed, special attention being given to cases where the prior complaint is not mandatory.Finally, the author emphasizes the importance of applying these time limits in just measure so that the prior complaint procedure does not become an obstacle, not related to the concrete situation, in the way of access to justice of the alleged injured party, nor it becomes an instrument of abuse.

The remnants of the law. Under the sign of urgency

Author(s): Slava Caramete / Language(s): English Issue: 1/2018

The insidious but tenacious instauration of the state of exception in contemporary states erodes not only the architecture of democracy, but the very foundation of human cohabitation – which is the law. Rigidly necessary – to ensure robustness, but flexible enough – in order to be able to claim adaptability to the contexts that demand it, the law is recommended to be the impartial mark of good coexistence. The declaration of “urgency” corresponds to the vehement eviction of the norm in the name of a pseudo-norm for imposing the paradoxical (non-) rule, in which the fact and the law overlap indiscriminately. Legal requirements become superfluous. Emptied of content, the law imposing the state of exception has only force, not significance; it re-unfolds itself in self-suspension. Institutionally dislocated, abruptly formulated and discretionally applied, the law emerging under urgency is a simulacrum, a vicious corpus of biopolitics. The study of its vestigial aspects makes sense in the prospect of salutary attempts to dismantle the resorts that allow the abuse and ultimately to relocate it to a space of “glass bead game”, post-legal, but revealing its original meaning. W. Benjamin, quoted by G. Agamben, announced the liberating dissolution of the law and its replacement, in a timeless indefinite horizon, with a nonconstraining meta-justice. Wandering in the exceptional state and ignoring its debilitating mechanisms postpones this messianic fulfilment of the law.

Constituția pe înțelesul unei mîini de oameni

Author(s): Valentin Constantin / Language(s): Romanian Issue: 03/2019