Hungary’s Constitutional Evolution During the Last 25 Years

Author(s): Imre Vörös / Language(s): English Issue: 02/2015

The author provides an overview of Hungary’s democratic Constitution of 1989, after sketching its historical development. This Constitution met the requirements of democracy, constitutionality, human rights, and market economy in every respect. It was this constitution with which the Republic of Hungary became a member of the European Union. Hungary’s first Constitutional Court – after having been elected freely by the Hungarian Parliament in 1990 – configured an internationally recognized common practice by virtue of interpreting the Constitution in the course of its application. Inaccuracies could have been mended with constitutional amendments. Instead, in 2011 a new socalled Fundamental Law was decreed with the votes of one single party, the governing party Fidesz. Although this new Fundamental Law corrected numerous defects and shortcomings, it at the same time radically transformed the system of public law, in fact withdrawing from the principles of the rule of law, democracy, and the separation of power. The legislator parried domestic (Constitutional Court, legal literature) and international (Council of Europe, European Union) criticism through serially importing numerous judicial regulation into the Fundamental Law that had previously been annulled by the Constitutional Court. Consequently, this lesion and abuse of Hungarian constitutionalism results not to be a singular, but a systemic problem, affecting the whole realm of Hungarian public law.

Glosa do wyroku Trybunału Konstytucyjnego z dnia 18 listopada 2014 r., sygn. akt K 23/12

Author(s): Piotr Chybalski / Language(s): Polish Issue: 3/2016

Instytucja Prezydenta RP według Jarosława Kaczyńskiego i w projektach konstytucji Prawa i Sprawiedliwości

Author(s): Lech Mażewski / Language(s): Polish Issue: 4/2016

From the Jarosław Kaczyński’s address to the constitutional convention of the Law and Justice (PiS)party, and from the constitutional proposals put forward by PIS, it is clear that they are not in any wayintended to rationalize the current model of governance, nor to specify what would be the role of thePresident of the Republic of Poland in shaping the foreign and defense policy of the State, but are aimedat general strengthening of President’s position among State authorities. But is it possible without a transitionto the presidential system? The authors of the proposal seem to think so. According to them,a remedy for the problems with Polish political system would be a shift towards a semi-presidential regime,without establishing a government’s formal political responsibility before the president, but withthe granting of his/her new powers, making the President of the Republic the pivot of the new systemof government. However, this is the wrong way of thinking, as the author attempts to prove.

W sprawie projektu ustawy o zmianie ustawy o powszechnym obowiązku obrony Rzeczypospolitej Polskiej oraz niektórych innych ustaw (druk nr 2609)

Author(s): Piotr Czarny,Bogusław Banaszak,Andrzej Szmyt / Language(s): Polish Issue: 1/2015

Ewolucja statusu prawa lokalnego (szczególnie wyznaniowego) Alzacji-Mozeli w porządku konstytucyjnym Francji

Author(s): Jacek Falski / Language(s): Polish Issue: 4/2015

The author examines historical origins as well as background and characteristics of transformation of the local law in Alsace-Moselle, a region in France which in the past existed under the strong influence (including incorporation) of Germany. This set of specific legal provisions concerns, inter alia, such important issues as Church-State relations. Due to the unitary nature of the French state, on the one hand, and the type of matter which is usually subject to regulations having constitutional rank, on the other hand, the issue seems rather quaint and intriguing, given that these relations are shaped in local law of Alsace-Moselle in a way closer to the approach applied in devout countries rather than in secular countries that after all is France. It seemed that the recent introduction of the ability to exercise ex post review of the constitutionality of laws could pose a serious threat to the constitutionally doubtful position of local laws.

Problematyka Konstytucji RP z 1997 r. na łamach „Przeglądu Sejmowego”

Author(s): Piotr Tuleja / Language(s): Polish Issue: 2/2013

The article deals with the issue of the Constitution of the Republic of Poland and the way in whichit was analysed in “Przegląd Sejmowy”. It contains a presentation of texts that were published in“Przegląd Sejmowy” during the first five years from the entry into force of the Constitution of 1997.The purpose of the presentation is to show how the constitutional issues were analysed, on whichproblems the authors focused their efforts, how they presented their findings, and to show preliminary assessments of the functioning of the existing constitution. Those texts relate to systems of governmentin its broad meaning, as well as human rights and European law in so far as it affects Polishlegal system. The author attempts to sum up the discussion on the operation of the current constitutionin the period of the first five years of its existence.

Wytyczne dotyczące treści rozporządzenia (uwagi na tle formułowania upoważnień ustawowych)

Author(s): Wojciech Brzozowski / Language(s): Polish Issue: 4/2013

The purpose of the article is to provide initial identification of the problems which arise most oftenin the practice of formulating statutory authorisation to issue a regulation, in relation to guidelinesconcerning its content (Article 92 (1) in fine of the Constitution). In the author’s view, the main weaknessesof guidelines contained in a statutory authorisation include, inter alia: 1) putting an emphasison the praxiological values that should be a natural component of any proposed mechanism, such asreliability, efficiency, effectiveness, efficacy and regularity; 2) ordering the author of a resolution toallow for the value, implementing of which is an obvious consequence of taking the action specifiedby the authorisation; 3) indicating the necessity of inclusion of actions which are objectively inseparablefrom the required action; 4) formulating therein a demand that the authority issuing a regulationbe driven by the indicated constitutional values, thus repeating the normative content of the Constitution. An analysis of the practice leads the author to the reflection of whether the guidelines arestill relevant today, or whether it is time to rethink the shape of this mechanism.

Poszukiwanie sprawiedliwości po kilkudziesięciu latach – rzecz o braku czasowego ograniczenia wyłączającego stwierdzenie nieważności decyzji administracyjnej określonych w przepisach art 156 § 2 kodeksu postępowania administracyjnego

Author(s): Tomasz Bąkowski / Language(s): Polish Issue: XXXV/2016

One of the measures allowing for the verification of an administrative decision is its annulment in case of extremely severe defects of a substantive nature which are inherent in the decision itself. The disclosure of some of these defects gives rise to the annulment of the decision at any time. Against this background, there are doubts which can be perceived in the context of justice as the basic idea of law and the main purpose of law. In this respect, the scientific considerations are justified because of several reasons: 1) the position of the Constitutional Tribunal expressed in its judgment of 12 May 2015 contesting to a certain extent the existing legal solutions; 2) the limitation of the annulment of a decision at any time by specific provisions provided in separate acts, 3) the content of the report on the work of the group established in 2012 by the President of the Supreme Administrative Court in order to develop the concept of the amendments of the administrative procedure.

La Pologne: la Constitution, la cour constitutionnelle et les inquiétudes de l’opinion internationale

Author(s): Maria Kruk / Language(s): French Issue: 1/2017

The events that took place in Poland 2015 and 2016, concerning the actions takenby the new parliamentary majority, including changes in the composition, procedure and legal basis of the Constitutional Court (Constitutional Court Act) werean inspiration to the reflections presented in this paper.Discussed in the paper are three main points of the functioning of the Constitutional Tribunal (CT) in Poland. The frst outlines the genesis of CT, starting withthe period of real socialism (1982). This is quite important as the original conceptof CT, despite the constitutional declaration of independence of the judges, assumedsome degree of parliamentary supervision (i.e. a hegemonic political party). The textalso describes how CT at the time able was to achieve independence and consolidate its authority, illustrating how this body – already included in the judiciary– was constituted in the Constitution of the Republic of Poland in 1997.The second point consists of a short chronicle of events, including the adoptionof the fve successive legal acts (amendments or new Constitutional Court Acts),and the way in which attempts were made, sometimes even by legal tricks, tochange the composition of this court to a politically more favourable and to blockits freedom or to revoke the court’s ruling. With the fnal passing of three newlaws on the organisation and the procedure of the Constitutional Tribunal and thestatus of its judges, whose negative consequences continue to appear. At the sametime, international institutions (the Venice Commission, the European Parliamentand the European Commission) announced their opinions, expressing concernabout the situation in Poland from the point of view of European standards of Rule of Law.The third point touches probably the most important issue – the doctrinal andconstitutional consequences, as well as the problems brought by these events tothe Polish constitutional law science and the constitutional and political practice.

Један поглед на територијалну аутономију у Републици Србији

Author(s): Bojan Č. Bojanić / Language(s): Serbian Issue: 3/Spec/2017

Autonomy represents the characteristic of the territorial organization of Serbia, from the first socialist constitution up to the current Mitrovdan constitution. By the constitution from 1946, two autonomous provinces - the Autonomous province of Vojvodina and the Autonomous province of Kosovo and Metohija, were established in Serbia. The autonomy of Vojvodina appeared primarily from the traditional reasons, since, to tell the truth, it had the autonomy under the name Vojvodstvo Serbsko and Tamiski Banat in a relatively short span of time, in the middle of the nineteenth century, as part of the Austrian-Hungarian monarchy. The Albanian minority constituted most of the population on the territory of Kosovo and Metohija, therefore, the aim of establishing the autonomy was to enable nurturing the culture, language, as well as participation in the political life according to the Republic constitution. By the constitutions from 1974, the autonomous provinces become quasi-federal units - they are a constitutional element of the federation, they pass their own laws and hold constitutional, judicial, legislative and executive authority. The constitution of Serbia from 1990 carried on to the other extreme when it comes to the position of autonomous provinces as opposed to the previous constitutional decision-they lost the right of passing the laws, which is a fundamental aspect of any autonomy. The constitution from 2006 did not bring many alterations to the regional organization of the Republic of Serbia compared to the previous constitutional structure, wherein the asymmetry as its aspect is now even more prominent. Namely, except for the fact that the autonomy was established just in one part of the territory of the Republic of Serbia, the position of the two autonomous provinces is different. Therefore, the constitution prescribes that the position of the autonomous region of Kosovo and Metohija, which has the substantial autonomy, is regulated by a specific law, which is passed in a procedure that anticipates the alteration of Constitution. The asymmetrical decentralization according to the current constitution, unlike the previous one, anticipates the possibility of forming the new autonomous provinces, which would have the jurisdiction as the current ones. The current constitutional frame does not offer the possibility of establishing the regional country as in the example of Italy or Spain, although those amendments were included in some of the proposals of the constitution coming from the ruling and opposition parties which adhered to the idea of broad decentralization. Thus far, after ten years since the constitution is in effect, a law that would put in order the „substantial” autonomy of Kosovo and Metohija is not passed, which, in any case, was not expected in the current circumstances. With the aim to find the solution which, until re-establishing the full sovereignty of the Republic of Serbia on this part of the territory, would be sustainable and acceptable in the transition period, the negotiation process was entered, the result of which was the First Аgreement of Principles Goverining the Normalization of Relations (Brussel Agreement). Apart from the fact that the Brisel Act and the Association/Community of Serb majority mnicipalities in Kosovo blatantly violated the constitution of Serbia, they do not even provide any autonomy for the Serbian people in Kosovo and Metohija, although according to the interpretations of the state authorities of Serbia (and the movement of Selfdetermination led by Aljbin Kurti, who compares it to Republika Srpska) other conclusions could be reached. The Brussel Agreement, as it was expected, was challenged before the Constitutional Court, but the Constitutional court of the Republic of Serbia did not appear as the authority defender of the Constitution and the constitutional values and of the hierarchy of legal norms. From a defender and guardian, it turned into an institution that denies and discredits it. By ignoring the attitude of the majority of constitutionalists that participated in an open debate, the Constitutional Court, contrary to any (legal) logic, concluded that the Brussel Agreement is not a legal, but a political act, and therefore cannot be the subject of the constitutional review. Long before Brussel Agreement was adopted, two fairly problematic and unconstitutional legal acts that were supposed to put in order the position of the autonomous province of Vojvodina were passed - Act of Establishing Jurisdiction of the autonomous region of Vojvodina and Statute of the autonomous region of Vojvodina. The Statute and the Act came as a consequence of the fierce political atmosphere that spread from Vojvodina over to Belgrade. It was not the result of the idea about the autonomy of Vojvodina that maturedor of some calm and rational consideration of the political reality of Vojvodina, but was actually forced on the republican authority. The Statute of the autonomous region of Vojvodina rose above the Constitution of the Republic of Serbia from 2006, and assumed the right to interpret and alter the will of the makers of the constitution, adding multiple solutions about the autonomy of Vojvodina, which are either not recognized by the Constitution or are in a direct opposition to it. This is most evident in the fact that the Constitutional Court of the Republic of Serbia in the 88-page judgment denied the constitutionality of 22 provisions of the Act and more than 40 provisions of the Statute of the autonomous region of Vojvodina. provisions of the Statute of the autonomous region of Vojvodina. The question of the territorial autonomy has been the source of constant tension and instability, and after more than seventy years of its being inexistence, the suitable model is pursued. Regionalisation as in the example of Italy or Spain was often mentioned as one of the possible solutions. The fact that the citizens did not, in ten years, use their constitutional right to form new provinces, informs us that this topic was artificially imposed and that it is often used for daily political purposes. In the context of future constitutional alterations, it is necessary to re-examine the existing concept of irregular decentralization, and it seems that it would be reasonable to raise a question of the existence of territorial autonomy. In that sense, bilateral and political local autonomy should be considered as an adequate model of the decentralization of authority.

ПОКРЕТАЊЕ НОРМАТИВНЕ КОНТРОЛЕ ПРАВА У ЕВРОПСКОМ МОДЕЛУ УСТАВНОГ ПРАВОСУЂА

Author(s): Dragan Stojanović / Language(s): Serbian Issue: 67/2014

Judicial review is the core competence of the constitutional judicature in Europe, which is largely shaped by the Austrian and German models of constitutional justice. In that context, the issue of initiating the constitutional review of legislation is extremely important. Depending on the subject who is authorized to initiate this proceeding, the constitutional review may be twofold: the abstract control and the incidental control. The former type of constitutional review is generally initiated by political bodies of authority at the national level and regional authorities, as well as the parliamentary minority. On the other hand, the latter type of constitutional review is exclusively initiated by regular courts in the form of judicial motions. In principle, there is a tendency to enable an individual to initiate the process of constitutional review (subject to specific requirements), whereas the ex officio proceeding is typically instituted only for the purpose of resolving a preliminary issue. The constitutional judicature in Serbia recognizes both the abstract and the incidental normative control. The former is effectively implemented in the practice of the Constitutional Court of Serbia; the latter is largely regarded as a theoretical possibility. The specific characteristics underlying the process of initiating a posteriori judicial review imply a significant departure from the standard embodied in the European model of constitutional justice. These characteristics are reflected in the prevalence of abstract constitutional review proceedings which are initiated by citizens as well as in the ex officio proceeding which has been laid down too broadly.

Kierowanie i dowodzenie Siłami Zbrojnymi Rzeczypospolitej Polskiej w polskim systemie konstytucyjnym

Author(s): Andrzej Piątkowski / Language(s): Polish Issue: 5/2018

The upcoming review of the Command and Control System conducted by the government is an opportunity for critical analysis of the current provisions related to the matter and formulating general proposals for improvement. In the author’s opinion, there are considerable inconsistencies within the current legal framework, that may handicap the effectiveness of operational efforts during wartime. The aim of the article is to identify those deficits, explain their shortcomings from both legal and operational standpoint and seek potential solutions.

Justification of necessity to limit the exercise of rights and liberties in a liberal society

Author(s): Dan Claudiu Dănişor / Language(s): English Issue: 41/2014

The exercise of rights and liberties may be limited for the reasons enumerated in art. 53(1)C. But their application may not be done in a limitless manner. There has to be a procedural framework which shall limit the modality in which the state may claim these reasons. This procedural framework has to be able to achieve the fundamental purpose of the constitutional provision: protection of individual liberty against possible abuse of the state. The purpose of art. 53C coincides with the general purpose typical to any liberal society: the priority of liberty over authority. Thus, it would be natural for the principle of liberalism to create the procedural framework of limits regarding claiming the reasons of general interest or of perfectionist values in order to justify the limitation of exercise of rights and liberties.

Wykładnia art. 14 ust. 3 ustawy o sejmowej komisji śledczej oraz art. 15 § 2 Kodeksu postępowania karnego

Author(s): Wojciech Odrowąż-Sypniewski / Language(s): Polish Issue: 1/2019

The author analyses the above-mentioned provisions, discussing the problem of a potential disclosure of documents and other materials collected by an investigative committee to authorities conducting criminal proceedings. In case of a convergence between the investigation conducted by the Central Anticorruption Bureau (CAB) and the matter examined by the investigative committee there are no formal obstacles to the realisation of a request for on submission of materials concerning the work of the committee to the CAB.

SOFT LAW VAIDMUO KONSTITUCINIO TEISMO JURISPRUDENCIJOJE

Author(s): Jolita Miliuviene / Language(s): Lithuanian Issue: 1/2019

The aim of this article is to find out why the Constitutional Court, while examining constitutional justice cases, formulating the provisions of the official constitutional doctrine and, finally, choosing a specific solution of the case, could or sometimes even should take into consideration soft law norms and the constitutional law development tendencies.The legal effects produced by the soft law was undeniably recognized in Garibaldi’s case by the Court of Justice of European Union and the obligation for national courts implementing the EU law to pay attention to the EU’s soft law norms was settled out. Most likely this obligation means that national courts have to prove that they are familiar with the appropriate soft law norms and after choosing their own solution meeting soft law norms or not, they should indicate the reasons of chosen different interpretation than recommended.It can be stated that the necessity to pay respect to the soft law in constitutional jurisprudence in appropriate cases is inevitable, if the Constitutional Court do not seek to isolate itself from European and international constitutional context. It is even more so, when there are no binding acts in the specific field of law. It goes without saying that the Constitutional Court would rely on such documents only if there will be no contradictions with the constitutional provisions and will correspond to the particularities of national legal system.Soft law can be perceived as the source of inspiration for judges examining constitutional justice cases and formulating constitutional doctrine and as the signpost for lawmaking subjects adopting binding acts. Sometimes soft law can help understand the complicated or unclear provisions of binding acts and foresee possible consequences, and sometimes it is the only legal act regulating some sort of relationships, especially when it concerns new challenges arising to the changing societies (such as technological progress that obviously will affect human rights and freedoms etc.). There is no reason to invent the new definitions pertinent to the constitutional justice case if they are enshrined in the legal act, even if it is soft, adopted by the competent institution of constitutional law.Soft law is often taken into consideration in the texts of constitutional judgments as a part of international context of the case, as explanatory documents of the notions or examined principles, as the strengthening piece of chosen reasoning and sometimes even as the part of interpretation of constitutional norms. The jurisprudence of Lithuanian, Latvian and Moldovan constitutional courts was analyzed in order to prove the expansion of the use of soft law and the necessity to continue to do so. The constitutional soft law regulates issues common to all the democratic states as it is based on universally recognized principles of democracy, the rule of law and protection of human rights. Adopted mostly by the European Commission “For the Democracy through Law” (known as Venice Commission) it proposes legal regulation and some solutions of the constitutional problems that are not adopted or implemented in the national legal system, but should be followed by all the states which have chosen the path of democracy. Therefore, it is not only possible, but sometimes it is necessaire to let the soft law guide. And as the constitutional soft law is based on the values that could be derived from almost all democratic constitution, the possibility that there could be contradiction with the national constitutional provision or that it could menace to the principle of the supremacy of the Constitution doesn’t seem very plausible.

Konsekwencje odmowy lub odroczenia opiniowania kandydatów na stanowiska sędziowskie przez zgromadzenie sędziowskie lub kolegium sądu, ze szczególnym uwzględnieniem ważności przedstawienia w takiej sytuacji kandydatur przez prezesa właściwego (...)

Author(s): Anna Łabno / Language(s): Polish Issue: 5/2019

The failure to perform an obligation vested in the judicial self-government and colleges of judges in the form of providing an opinion on candidates for the position of a judge is an abuse of right and as such shall not have legal effects. Applying Article 35(3) of the Act on the National Council of Judiciary and claiming that based thereon candidates are presented by the president of a relevant court to the National Council of Judiciary is not impeded by Article 58(4) of the Law on the System of Common Courts, as of which “President of the court presents [...] opined candidatures [...] together with the assessment of qualifications and an opinion of a relevant college of judges”. The main argument for this approach is the principle according to which no one shall make wrong use of their right (male iure nostro uti non debemus), which would be the case if the actions of a president of a court were denied validity on the basis of Article 35(3) of the Act on the National Council of Judiciary. Taking into account a strictly formalist understanding of law, I would be willing to postulate appropriately amending Article 58(4) of the Law on the System of Common Courts. In Poland decisions referring to arguments on the abuse of right and prohibition of making use of it find no acceptance.

W sprawie sposobu obliczania terminu wyznaczonego na złożenie zdania odrębnego do stanowiska Komisji Śledczej

Author(s): Wojciech Odrowąż-Sypniewski / Language(s): Polish Issue: 5/2019

In the opinion, the legal analysis of the issue concerning the manner of setting the time limit by an investigative committee for submitting a dissenting opinion on the committee’s position is presented. The author points to the fact that the time limit does not result from a statute but is a committee’s incidental procedural decision. In the system of law there are no uniform, universal rules for calculating the time limits set in provisions. Calculating the time limit set by commissions results from customary rules and there are no normative grounds for applying the manner of calculating the time limit provided for in other provisions of law. In particular factual circumstances, a committee shall consider expediency of including dissenting opinions on the committee’s report submitted after the time limit, taking into account the fact that it would serve to respect the statutory right of the minority of committee’s members and would express the conviction that decisions of investigative committees are made on the basis of an impartial analysis of factual state and do not involve eliminating views of those who regard the examined circumstances differently.

Restructurarea creanţelor bugetare reglementată prin O.G. nr. 6/2019 versus eşalonarea la plata creanţelor fiscale reglementată prin Codul de procedură fiscală

Author(s): Cristina Oneţ / Language(s): Romanian Issue: 5/2019

The issue of restructuring the budgetary receivables is a completely new one in the landscape of legal institutions that comprise the tax procedure after which the collection of tax receivables is carried out in Romania. It was established as an additional tax relief, alongside tax receivables’ payment facilities such as delays, or payment scheduling. For this reason, we considered a comparative analysis of the new regulations contained in the Government Ordinance no. 6/2019 regarding the establishment of tax facilities with the older provisions contained in the Fiscal Procedure Code, which do not disappear, but receive new nuances, to be necessary and timely. This comparative analysis allowed us to highlight a series of conclusions regarding the changes brought about by the emergence of this new legal institution, some of these changes being punctual, while others are substantive modifications that we hope will lead to a new paradigm regarding the establishment of relations between tax authorities and taxpayer.

The Romanian Prezidentialized Consultative Referendum. Eating Apples from a Poisonous Tree? Personal and Teleological Interpretations

Author(s): Răzvan Cosmin Roghină / Language(s): English Issue: 38/2019

Through this article, we propose an (original) analytic approach on the consultative referendum of May 2019 and a wider critical landscape regarding the consultative referendum institution by enforcing a teleological interpretation, In this sense, we proposed three sections. We will start with a short overview on the use of consultative referendum in the recent years of Romanian democracy. In the second section we will focus on the consultative referendum from 26 May, 2019. in the third section we will ask the Founding Fathers of the Constitution for a "opinion" regarding the possibilities and impossibilities of the consultative referendum.

The Romanian Constitutional Court and The Solution of The RCC Complaints in the Actual Social Context

Author(s): Neculai Lungeanu / Language(s): English Issue: 1-2/2019

"The idea of bending over this issue has arisen due to the more and more frequent occurrence in the media of the debates and polemics about the decisions taken by the Constitutional Court in 2018 to solve various institutional bottlenecks. The purpose of the paper is to provide a radiograph of the only constitutional legal authority in Romania in order to understand how it works and why the decisions made by it have become ample subjects debated at both the media and in different circles of legal debates .From this perspective, it is intended to bring to the fore the subjects of wide-ranging discussions based on decisions of the Constitutional Court, widely debated at the level of the Romanian society as well as in the European Union. "