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FREEDOM OF SPEECH. CONSIDERATIONS ON CONSTITUTIONAL COURT'S DECISION NO. 649/2018

Author(s): Cristina Titirişcă / Language(s): English Issue: 1/2019

Pursuant to article 30 paragraph (1) of the Constitution, freedom of expression is inviolable, but according to article 30 paragraphs (6) and (7) of the same Constitution, it cannot prejudice the dignity, honour, private life of the person and nor the right to one's own image, being forbidden by the law the defamation of the country and the nation, the exhortation to war of aggression, national, racial, class or religious hatred, incitement to discrimination, territorial separatism or public violence, as well as obscene, contrary to good morals. The limits of freedom of expression fully accord with the notion of freedom, which is not and cannot be understood as an absolute right. The legal and philosophical concepts promoted by democratic societies admit that a person's freedom ends where the other person's freedom begins.

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Procesul de reforjare a statalității și formarea statelor moderne în spațiul european. O perspectivă constituțională

Author(s): Cristian Ionescu / Language(s): Romanian Issue: 07/2019

In this study, the author presents, from the point of view of the constitutional law, the complex process of re-emergence of the state formations after the break-up of the Roman imperial administration at the end of the 5th century. The collapse of the boundaries of the West Roman Empire and the penetration of the conquering migratory populations to its centre have generated not only the destruction of the military capacity of the empire and its army, but also of the political institutions and of the entire Roman administration. Practically, the Roman state has entered an advanced dissolution process that has led also to the replacement of the old production relations with new relations. Instead of the Roman administration, rudimentarily organized patriarchal formations which responded to the new military conditions imposed on the indigenous population by the conquering populations appeared. At the same time with these, in the former Roman provinces, the Christian churches continued to carry on a social organization activity. Practically, the Christian Church took over some social organization and management functions, specific in the past to the Roman administration.The gradual conversion of the conquering populations to Christianity has stimulated the process of restating and the emergence of the first barbarian kingdoms. The Church had thus an overwhelming role and hastened the re-emergence of the statehood on the former territories of the vast Roman Empire. Finally, new states have emerged on the European continent, with well defined ethnic physiognomies and endowed with a political administration based on constitutional principles that have proven their validity in the subsequent centuries.At the same time with the formation of the new states, a new theory of the political institutions has been forged and gradually developed, in which, along with the elements of laic thinking, many precepts of Christian religion can be emphasized.

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Controlul de constituționalitate a legilor în România. Contribuții ale jurisprudenței

Author(s): Marius Andreescu,Claudia Andreescu / Language(s): Romanian Issue: 07/2019

For the Romanian legal system, the case law does not have the quality of formal source of law. Nevertheless, the legal reality, also seen from a historical perspective, has demonstrated the essential role of the judicial practice in interpreting and enforcing the law, in constructing the argumentative practices, in clarifying the will of the legislator, and in discovering less obvious meanings of the legal norms, and last but not least to the unification of legal thinking and practice. Therefore the case law, together with the doctrine, is an important component of the Romanian legal system.Staring from these considerations, in this study we aim to emphasize a few aspects of constitutional case law. We are underlining its contribution to the emergence of the constitutionality control of laws in Romania. Under the influence of the Constitution of 1866, which did not regulate such a control in an institutional manner, the courts have assumed this competence by interpreting the law and by jurisprudential way.There are also presented and analyzed important contributions of the case law of the Constitutional Court, but also of the judiciary courts to the development of constitutionality control in our country. We support the idea that the case law currently plays an important role in the interpretation of the constitutional norms, including in terms of deepening the forms of constitutional control.

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Dopuszczalność wycofania wniosku o udzielenie Radzie Ministrów wotum nieufności

Author(s): Piotr Chybalski / Language(s): Polish Issue: 1/2019

The author assesses the possibility of withdrawing motion to pass a vote of no confidence in the Council of Ministers, finding it. unacceptable, notwithstanding that this matter has not been literally regulated in law. Although this problem was not analyzed in the constitutional literature, an analysis of the current provisions of the Standing Orders of the supports the above conclusion.

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Puterea judecătorească – o veritabilă a treia putere în stat?

Author(s): Radu Motica,George Mara / Language(s): Romanian Issue: 08/2019

The study addresses the issue of the role of the judicial power within the system of separation of powers in the state, as well as its interaction with the legislative power, respectively the executive power, mainly using the method of analysis and of the case study, respectively of the jurisprudential study. Starting from the necessity, justified in a democratic state, of the existence of a system of mutual control between the authorities called to exercise the power, the authors present the creative role of the judge, called upon to apply, by interpretation, his right and principles, to a situation of fact, pursuing the respect for citizens’ rights and freedoms. Certainly the necessity of limiting the abusive or arbitrary conduct in exercising the functions of any of the three powers of the state can only be achieved when mutual control is effective and guaranteed by the legal regulations, as well as by the institutional practice, based also on the principle of loyal collaboration between institutions and public authorities. The members of the judicial power must respect high standards of ethics and professionalism, and their independence and impartiality are guarantees of respecting their role in democratic regimes based on the principle of separation of powers. The paper presents aspects referring to the interaction of the judicial power with the legislative one and the executive one respectively, by analysing the relevant case law of the Constitutional Court, which has established the parameters of this relationship, so as to guarantee the respect for the functions assigned by the Fundamental Law to each power, respectively to respect the citizens’ freedoms and the prevention of arbitrariness in the exercise of power.

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Calitatea procesuală a părților în litigiile de contencios administrativ

Author(s): Catalin-Silviu Sararu / Language(s): Romanian Issue: 08/2019

In this article the author analyses who can have active and passive quality in administrative contentious disputes according to the provisions of Law No 554/2004 of administrative contentious, as amended by Law No 212/2018 for amending and completing the Law on administrative contentious No 554/2004 and other normative acts. The article highlights the correlations existing between the Law of administrative contentious, the Civil Code and the Civil Procedure Code in the subject matter. The article provides solutions to many practical problems.

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Natura juridică a comisiilor parlamentare

Author(s): Cristian Ionescu / Language(s): Romanian Issue: 08/2019

In this article, the author analyzes the legal nature of the parliamentary committees and concludes, together with other authors, that they should be considered as internal working bodies of each Legislative Chamber. The role of parliamentary committees, whether standing committees or committees of inquiry, or other special committees, is to prepare the works which are going to be debated in the plenum of the Legislative Assemblies. As working bodies, the parliamentary committees do not have their own decision-making power over the matter referred to them. In other words, the parliamentary committees do not express a political will, in a deliberative sense, because their role is to examine the matters referred to them by the standing bureaux of the Legislative Chambers and to make proposals thereto. The reports and opinions they make on the matters under examination have the value of recommendation made to the plenum of each Legislative Chamber, these being free – as deliberative bodies – to accept or reject the solutions proposed by the committees. Each Chamber of Parliament has the full freedom to set up specialized committees in certain areas of activity. The Constitution obliges the Legislative Chambers to set up permanent committees and to set up – when it deems necessary – committees of inquiry or other special committees. The composition of the parliamentary committees reflects, as far as possible, the political configuration of the Chamber that has decided to set them up.

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Procedura ustawodawcza w Księstwie Monako

Author(s): Paweł Kubacki / Language(s): Polish Issue: 110/2019

The article contains description and analysis of the procedure of passing the law in the Principality of Monaco. The starting point is to present the constitutional context of this issue – the author characterizes place of the law in the system of sources of law and relationships between participants of the procedure of passing of law. The unique regulation of this procedure in the Principality of Monaco is consequence of the constitutional system established in this country, in which the predominant role was foreseen for the head of state. In this context the successive stages of procedure of passing the law was the subject of analysis, i.e. preparation of draft laws, legislative initiative of the Prince, proceedings in the National Council, sanction laws and promulgation. The aim of this article is to evaluate whether the solutions adopted by Principality of Monaco guarantees democratic character of the legislative procedure.

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REVIEW NO. 3.

Author(s): Tanasije Marinković / Language(s): Serbian Issue: 2/2019

Pürner, Stefan (ur.). 2016. Godišnjak za ustavno pravo 2016 Vol. 1. Beograd: Nemačka fondacija za međunarodnu pravnu saradnju – Dosije studio, 343.

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Glosa krytyczna do wyroku Sądu Najwyższego z 25 stycznia 2017 r. (sygn. akt IV CSK 205/16)

Author(s): Elwira Marszałkowska-Krześ / Language(s): Polish Issue: 3/2017

While trying cessation appeals, the Supreme Court may not call into question the facts established by the lower courts or the assessment of the evidence. In addition, a final judgement issued in so-called partial proceedings is binding on the courts in further proceedings. Finally, a demand for the return of real property that has been disposed of by way of a civil-law agreement does not constitute a reprivatization claim.

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Glosa do uchwały Naczelnego Sądu Administracyjnego z dnia 5 czerwca 2017 r. (sygn. akt II GPS 1/17)

Author(s): Rafał Stankiewicz / Language(s): Polish Issue: 3/2017

The article presents an important interpretative resolution of the Supreme Administrative Court on the relationship between extraordinary proceedings and proceedings before administrative courts. The SAC held that in the course of proceedings before an administrative court, administrative proceedings may be instituted in order to amend, set aside, or void a legal instrument, or to reopen the proceedings for the legal instrument under court review. However, public administrative bodies are obligated to stay these proceedings, pursuant to Article 97(1)(4) of the Administrative Procedure Code of 14 June 1960, until the final and binding conclusion of the proceedings before the administrative court.

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În legătură cu natura juridică a Curții Constituționale

Author(s): Cristian Ionescu / Language(s): Romanian Issue: 09/2019

In this article, the author analyzes the legal nature of the Constitutional Court, a political-jurisdictional authority of jurisdiction, whose role consists mainly in controlling the constitutionality of laws and of other acts adopted by the Romanian Parliament and by the Government. The Constituent Assembly of 1991 opted for the institutionalization of the European model of constitutional jurisdiction, according to which a body independent in relation to the powers of the State assumes the role of guarantor of the supremacy of the Constitution. The constituent legislators have preferred to abandon the control of the constitutionality of laws enforced by the supreme court, which was established by the Fundamental Law of 1923. In the constitutional architecture of the Romanian State, designed after the change of the political regime at the end of 1989, the Constitutional Court is a political-jurisdictional body whose legal nature derives from the way in which it is organized and structured, as well as from the attributions conferred to it by the Constitution. At the same time, the Constitutional Court also appears as a regulating body of the public authorities with governing powers in the state, which it obliges, through its decisions, to return to the constitutional legality. The author highlights both the political and the judicial nature of the Constitutional Court and shows that there must be a balance between the two essential characteristics of this public authority, in order for it to fulfil its constitutional role in a complete independence and impartiality and not to transform itself into a political tool for solving the relations between powers, especially between the legislative power and the executive power, which should benefit to one or another of the political actors.

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Wielopostaciowość administracji w prawie administracyjnym

Author(s): Renata Kusiak-Winter / Language(s): Polish Issue: 1(3)/2018

The phenomenon of multiform nature of public administration has been presented from the point of view of a rational lawmaker who perceives the need for a proper legal framework to design the versatility of public administration. This is especially reflected in the administrative law of organizational structures and in the substantive administrative law, while the main purpose of the general administrative law is to guarantee normative unity in the multifaceted character of public administration.

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O konstytucyjnym pojęciu godności osobowej

Author(s): Anna Frankiewicz-Bodynek / Language(s): Polish Issue: 2/2018

The content of this publication is a presentation of the meaning of the formula which refers to human dignity. The understanding of this idea should always remain in accordance with the legislative and judicial acquis of countries of western civilisation sphere. Based on judicature and source literature, respective attributes of human dignity, which Article 30 of the Constitution of the Republic of Poland refers to, have been explained. A change of the attitudes of constitutional lawyers’ community and the Constitutional Tribunal has been highlighted, with the possibility of referring to the content of this article as an independent model of constitutionality of law under an abstract and concrete control. Initially, human dignity was considered as a general rule and not legal rights.

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Konstytucyjne podstawy prawa ubezpieczeń społecznych

Author(s): Krzysztof Ślebzak / Language(s): Polish Issue: 3/2018

The subject of this paper is related to the legal bases of social insurance law in the light of the 1997 Constitution of the Republic of Poland. The considerations undertaken herein indicate that although the Polish Constitution gave expression to the idea of social security, it seems that only on this foundation is the existence of the constitutional bases for distinguishing social insurance or social security law reasonable.

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How opinions of the Czech Ombudsman influence the decision-making of administrative courts

Author(s): Anna Chamráthová / Language(s): English Issue: 4(2)/2018

The paper deals with the possibilities the Czech Ombudsman has to influence the decision-making of the administrative courts in the Czech Republic. It describes both direct and indirect means of their influence, with the emphasis on the indirect means, as the direct means are very limited in the Czech Republic and are rarely used. The first part is concerned with the enumeration of means of how the opinions of the Ombudsman can become known to the administrative courts and their description and analyses the efficiency of the means described. The second part deals with the problems which occur while trying to assess their efficiency and mentions possible improvements.

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A judicial review of the inactivity of public administration in the Slovak Republic

Author(s): Matej Horvat / Language(s): English Issue: 4(2)/2018

The article focuses on inactivity of the public administration in the Slovak Republic. It analyses this malfunction of the public administration from the point of view of the legal theory, international legal regulation as well as national legal regulation. The emphasis is on the national legal regulation that should provide effective legal remedies on how to eliminate inactivity of the public administration – namely the Constitution of the Slovak Republic, the Act on Administrative Proceeding and the Act on Administrative Justice Procedure. The article analyses the new legal regulation on a judicial review of inactivity stipulated in the Act on Administrative Justice Procedure and compares it with the previous legal regulation. The aim is to conclude which legal regulation is more effective and describe why it is so.

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The administrative justice in the Czech Republic – changes and expectations

Author(s): Lukáš Potěšil / Language(s): English Issue: 4(2)/2018

This article deals with the changes that were made and with possible expectations in the field of administrative justice which can be observed on the example of (not only) the Czech Republic. To this end, the contribution focuses, first, on the purpose of the administrative justice as such and on its history and development. Then it gives consideration to the current stat and form of the legal framework of the administrative justice in the Czech Republic. On this basis, the last part of the contribution deals with the changes which have been made in the administrative justice as well as with possible expectations that may be placed on the administrative justice, going hand in hand with its possible changes in the future.

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REGULATION AS A GENERALLY APPLICABLE LEGAL ACT ISSUED FOR THE IMPLEMENTATION OF A STATUTE

Author(s): Roman Stec,Łukasz Ciołek,Marcin Roliński / Language(s): English,Polish Issue: 1/2019

The regulation shall be issued by the bodies indicated in the Constitution, based on a detailed authorization contained in the statute and for its implementation. The authorization should specify the body competent to issue a regulation, the scope of delegated issues and guidelines for the content of the act. The body authorized to issue a regulation shall not sub-delegate its competence in this area to another body (Article 92 of the Constitution). Such provision contained in the Constitution clearly defines the nature of regulations as implementing acts, requiring the detailed statutory authorization. The authorizing statute indicates that the regulation shall be issued by various bodies in cooperation. Cooperation may be based on consent (law specifies that the regulation will be issued "in agreement" or "in consultation"), or only on the expression of opinion.

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Idea pokoju w wypowiedziach Jana Pawła II i doktrynie prawnej – antagonizm czy synergia?

Author(s): Aldona Domańska / Language(s): Polish Issue: 3/2019

War is the most barbaric and the least effective means of conflict solution. That is why in recent years various international organizations have intensified their efforts to determine the status of a right of peace and the ways of implementing it. Peace is one of the basic values of solidarity, freedom, and justice that determines human behaviour. It guarantees all rights and freedom. However, it is debatable whether the mere ratification of the right of peace is enough to exercise it. It is necessary to undertake a number of actions aimed at eliminating threats to protect this value. These issues are complex but very important for every person, state, and for the whole human community. The idea of peace also had a significant place in the social teaching of the Church, which is evidenced in Pius XII’s and Jan XXIII's teaching. Since the beginning of his papacy John Paul II put forth a lot of effort in defending the world peace. This is particularly reflected in his annual messages for World Peace Day. The construction of the peace concept in the teaching of John Paul II covers four pillars, which can be found in the concept of John XXIII and which are laid out by him in the encyclical Pacem in terris. These are: truth, freedom, justice, solidarity. Both in the legal doctrine and the statements of the Fathers of the Church, peace is a guarantee of human dignity. Therefore, it is the duty of everyone, the entire international community to take action in order to prevent conflicts and create life based on truth, freedom, and justice.

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