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Amnestia i jej konstytucyjne uwarunkowania

Author(s): Paweł Daniluk / Language(s): Polish Issue: 3/2014

The article establishes the meaning of the concept of amnesty and provides characteristics of the act ofamnesty. The author proves that, despite the fact that the Constitution lacks the provision relating explicitlyto the possibility of adoption of the amnesty law by the parliament. Article 10 in conjunctionwith Article 173 and Article 175 para. 1 of the Constitution are no obstacle in this respect. He also pointsto, inter alia, the doubts as to whether amnesty may be extended to include disciplinary penalties, anddemonstrates the inadmissibility of the inclusion in the amnesty law of regulation involving the conversionof legally imposed penalties on another, more lenient, punishment. Moreover, the author claimsthat the interest of the victim is not — in principle — an obstacle to grant amnesty. However, amnestyshould not interfere in civil-law interests of the victim that are included in the fi nal judgment.

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Status prawnoustrojowy Szefa Agencji Bezpieczeństwa Wewnętrznego. Zarys problemu na tle rozwiązań konstytucyjnych i ustawowych

Author(s): Martin Bożek / Language(s): Polish Issue: 3/2014

The main objective of this article is to systematize the knowledge of the place occupied, and the roleplayed, in the structure of government administration by the head of the Internal Security Agency.The author examines legal solutions allowing to characterize the legal status of the head of the InternalSecurity Agency as a body performing tasks arising from the functions of the State and as the entityin charge of a part of government administration capable to perform these tasks. According tothe author, this objective requires presentation of the constitutional and statutory provisions relatingto the position of Head of the Internal Security Agency and characterization of powers which he/shemay use in order to implement his/her tasks. The article provides a survey of the constitutional solutionsthat determine the status of the Head of the Internal Security Agency as central government administrationbody. In this context, the author shows the relations between the Head of the InternalSecurity Agency and the Prime Minister, to whom he/she is subordinate and who oversees the activitiesof the Internal Security Agency. He also provides an analysis of the principles of organizationand management of the substantive work of the Agency. From this analysis it clearly follows that theHead of the Agency has to play at least some of the key roles in the “governmental” system of theState security. On the one hand, it accounts for an important aspect of national security, which is the“internal security” and “protection of the constitutional order”. On the other hand, the head of the InternalSecurity Agency has the authority to initiate certain specifi c activities of the Agency in fulfi llmentof its tasks. His/her scope of competences include also assessment of performance of the Agency’sfunctionaries in the context of their official operations. Moreover, he/she is responsible forimplementation of important duties in rendering information to constitutional organs of the executiveand to parliament.

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Jeszcze raz w sprawie kontroli konstytucyjności całej ustawy — odpowiedź na polemikę Piotra Radziewicza

Author(s): Aleksandra Kustra-Rogatka / Language(s): Polish Issue: 2/2013

The article is in response to polemic comments from Piotr Radziewicz on the author’s article aboutthe review of constitutionality of the entire statute (published in “Przegląd Sejmowy” 2012, No. 2). Replying to the objections of Radziewicz, the author clarifies that her original article was based on the assumption of an active role of the constitutional court in the process of hierarchical review of conformity of the normative acts of lower rank to the normative acts of higher rank. The aim of thecited article was not to examine the limits of judicial activism, but, under a tacit assumption of it sadmissibility (or, sometimes, even necessity), to show real issues facing constitutional court judgeswhen considering applications to review the constitutionality of the statute as a whole. In the author’sview, the Constitutional Tribunal — carrying out the review of the entire statute – may make a decision which is fully affirmative or declaring inconsistency with the constitution of only several elementsof the statute, or give a fully negative (denying) judgment. The latter will be admissible onlyin the event that the Tribunal declares unconstitutionality of all the provisions of fundamental natureand indicates the resultant unconstitutionality of all other provisions of the statute. Judgments declaring unconstitutionality of the entire statute will be made very occasionally. The author claims thatcarrying out of the review of constitutionality of the statute as a whole is based on Article 122 (3) for an a priori review and Article 188 (1) for an a posteriori review. In her view, even if a given statutehas been challenged by the President of the Republic under the a priori review procedure and (consequently) unconstitutionality of the provisions integrally associated to the entire statute has beendeclared, the Constitutional Tribunal will be allowed to make use of its competence provided for in Article 122 (4), the second sentence. This, however, cannot be confused with a review of the entirestatute per se.

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Raspodela mandata u evropskim postkomunističkim zemljama na primerima Češke, Slovačke i Slovenije

Author(s): Miloš B. Stanić / Language(s): Serbian Issue: 3/2016

This paper is connected with previous paper of this author, published in journal Foreign Legal Life, No. 3/2013. In this paper will be presented the distribution of mandates system in Czech Republic, Slovakia and Slovenia, after the parliamentary elections. In its core, the mandate’s distribution system is the way of converting votes into Member of Parliament seats, after the completion of voting. As a matter of fact, this phase of the election can be done in different ways,and that makes it very interesting researched topic. The author has selected three European countries, and they all are ex-communist countries. This choice is quite logic, because our country, Serbia, was part of that system. The aim of this paper is to bring some general conclusions, after the examination of the solutions in these countries. In our opinion, this topic has scientifically and social justification to be researched. The author wishes to provide a modest contribution to the knowledge of this subject in our country, and beyond. The science should serve to society, and this knowledge could in the future gain an importance, in case of future reforms of Serbian electoral system.

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Nauka o dobru prawnym i jej rola w badaniu konstytucyjności regulacji prawa karnego

Author(s): Mateusz Filipczak / Language(s): Polish Issue: 102/2017

The issue of this paper is a using of theory of legal good as a tool for constitutional control in criminal law. It discussed a concept of legal good, which designates both the external borders of the criminal law and internal borders of the criminal law. It was explained that the legal good ought to be understand as social value, which means as interest. It was in dispute over a incorrectly understanding of a interest criminal law. It quoted a transpositive theory of the legal good, which assume a connection between the legal good and Constitution. With regards to theoretical point of view, in this paper was raised a criterion undecidable problem in the criminal law. In conclusion was said that art. 31 passage 3 Constitution RP ought to be interpreted in context of the theory of legal good.

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Zabezpieczenia konstytucji przed zmianą konstytucji

Author(s): Jarosław Szymanek / Language(s): Polish Issue: 6/2015

This article discusses procedural means of protecting the constitution against changes. The starting point is the general remark that the constitution should be a durable and stable act, as it is the permanency of any constitution that is its inherent feature. Nevertheless, any rational legislator of the constitutional system must allow for the possibility of changing the constitution. However, any implementation of changes ought to be carried out with caution and only if absolutely necessary. Therefore, the mode of changing the constitution must be difficult enough (in comparison to passing ordinary laws) but also accomplishable. Consequently, the procedural side of any change of the constitution must be designed so as to, on the one hand, make the procedures of amending the constitution possibly complicated, but on the other hand those procedures must be realistic and implementable. That is why nowadays we can observe a whole range of procedural solutions concerning the process of changing the constitution, e.g. provisions relatively unchanged. The prerequisite of obtaining a qualified majority in the parliament is also a common mechanism in the process of changing the constitution. Sometimes changing the constitution must be approved by two consecutive parliaments, but a more frequent solution is a referendum-based procedure.

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Повреда права на суђење у разумном року пред органима управе

Author(s): Milijana Trifković / Language(s): Serbian Issue: 3/2017

This paper analyzes violation of the right to trial within a reasonable time in administrative proceedings. Аttention is payed to administrative proceedings because the second-instance administrative authority, apart from a few limited exceptions, can remit a case to a lower instance for unlimited number of times. The issue has gained significance particularly after the adoption of the Law on Protection of the Right to Trial within a Reasonable Time which protects only parties in court proceedings. Relying on the practice of the European Court of Human Rights and Serbian Constitutional Court, this paper points to the possible ways of protection of the right to trial within a reasonable time in administrative proceedings, but also to the need to ban repeated remittals of a case for re-examination in appellate review.

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О неким „антиидентитетским“ местима у српском Уставу

Author(s): Vladimir Petrov / Language(s): Serbian Issue: 3/Spec/2017

Constitutional identity is an important concept in contemporary constitutional law. In theory and in practice, however, that concept is rather vague. The author gives a „working definition“ of constitutional identity as a merger of universal and particular principles and values. In his opinion, the Constitution of Serbia from 2006 has not succeeded to consolidate all the important features of serbian constitutional identity. The author is analyzing several “anti-identity“ spots in the Constitution, like those related to the definition of separation of powers, the nature of representative ̓s mandate, permanence of judicial office and the Preambule. The Constitution defines and proclames the separation of powers by introducing the principle of „checks and balances“ between the three state funcions. That type of separation of powers is not compatible neither with european nor with serbian constitutional identity. In this way, the Constitution has opened the door for the uncontrolled influence of politics on the judiciary. The Constitution does not define free representative ̓s mandate in the explicit manner. The judicialization of the relation between political party and deputy is not consistent with european constitutional identity. The Constitution proclames the permanence of judicial tenure, but this principle is relativized by the probationary mandate of persons who are elected judges for the first time. This solution is also not compatible neither with european nor serbian constitutional identity. Finally, the national constitutional identity is not expressed in the Preambule in a proper manner. The Preambule speaks about „the substantial autonomy“ of Kosovo and Metohija. That notion has never been defined. It was construed for political usage. That is why the author concludes, which sounds paradoxicaly at the first glance, that the Preambule is also not in accordance with serbian constitutional identity.

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Правни положај и реалност Уставног суда Србије

Author(s): Slobodan P. Orlović / Language(s): Serbian Issue: 3/Spec/2017

In Serbia there is the continental type of constitutional-court power which is organized in the Constitutional court. Its role is primarily to protect the constitution and the constitutional order, especially constitutionality and legality, and most importantly, human rights. The fact that the Constitutional Court has an important, but much unutilized political role - to keep authorities, as much as possible, within constitutional boundaries, should not be overlooked. In other words, it would be brave to decide even in cases with significant political weight, in such way that protects the Constitution. In exploring the theme of the election of judges, their status and the jurisdiction of the Constitutional Court, questions will be raised as to the amendment of constitutional provisions which pertain to the Constitutional Court. On the other hand, the Constitutional Court and its judges, must resolve the most difficult (most important) constitutional disputes adhering to one criterion – the constitutionality. In that way they will raise the rank and reputation of this authority up to the necessary level which, unfortunately, has not always been the case in the past work of the Constitutional Court.

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Независност судства у Републици Србији – предлози за промену уставног оквира заизбор судија и престанак судијске функције

Author(s): Đorđe Marković / Language(s): Serbian Issue: 3/Spec/2017

The judicial independence is the corner stone of the modern state. It is considered to be one of the crucial institutional guaranties of the rule of law. In the past twenty five years Serbian judiciary has struggled with a lot of problems. The lack of independence in judiciary was one of the biggest. The author questions which changes can be done in the current Serbian constitution to increase extent of independence. Firstly, all of judges should be appointed permanently until retirement. Secondly, the High Judicial Council should be totally reconstructed in way to become fully independent and competent body, with a strong jurisdiction. Thirdly, the Judicial Academy should not be a constitutional category. The importance of the Academy is undeniable, nevertheless it have to stay only as one of the conditions for the election of judges. Finally, the reasons for the termination and dismissal of judicial office should be returned into the Constitution. Only with these necessary reforms, Serbia will become the state of rule of law.

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Световност државе у Уставу Републике Србије и његовој примени

Author(s): Vladimir Mikić / Language(s): Serbian Issue: 3/Spec/2017

The paper analyzes the constitutional principle of the separation of the state and religious institutions in the Republic of Serbia, as well as its legislative implementation. Author explores the extent to which the legal framework creates the basis for a truthful materialization of the principle of secularism and states some factual deviations from it. In conclusion, which is grounded on comparative analysis of constitutional documents of many European countries, author points out that the concept of the secular state in Serbia, as elsewhere, is merely relative in character. It is necessary to change the normative framework, in order to reduce the gap between the written and the actual Constitution. The suggested normative solutions keep in line with comparative constitutional models in Europe, by which pattern of cooperation is established between the state and the church.

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Уставна неопходност постојања двије нове инкриминације

Author(s): Milan Blagojević / Language(s): Serbian Issue: 12/2016

Subject of this paper is a question which has not been written about in domestic and foreign literature so far. It is related to constitutional necessity of federal unit to have its criminal law norms by which its constitutional competencies and very existence of the federal unit are protected. With the aim to be better understood, the author of the paper has firstly explained the way how the Republic of Srpska was dispossessed of its constitutional competencies during the last twenty years, and how we may expect that the very existence of the Republic of Srpska can be put into question in the foreseeable future. In order to prevent such danger, the author explained in the paper his ideas on the norms of two new incriminations, which should be prescribed in Criminal Code of the Republic of Srpska. In final part of the paper the author has explained the way how without these incriminations not only its remainder constitutional competencies but the very existence of the Republic of Srpska is going to be left unprotected as a place exposed to the wind of internal and international (un)law.

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OBSADZANIA WYŻSZYCH STANOWISK W SŁUŻBIE CYWILNEJ

Author(s): Mariusz Wieczorek / Language(s): Polish Issue: 2/2016

Separation of the civil service from the wider public service is an expression of the belief that the efficient and professional execution of the state’s tasks is possible only under the condition that the construction of the administrative apparatus will take into account the principle according to which political posi-tions will be separated from the executive ones. The functioning of the civil service, understood as a professional and apolitical civil service, can be considered a standard of a democratic state of law. Therefore, reconstruction of the civil service in Poland in 1996 was the proof that the authorities noticed that the non-party bureaucratic apparatus was a guarantee of the effective execution of the State’s tasks and is a necessary condition for the realization of citizens' right to good administration.The article mentions several legal problems arising as a result of the amendment to the Civil Service Act made in December 2016. The main subject of the article is to assess the compliance with the Constitution of the Republic of Poland introduced by the Act cited above, the model of filling senior positions in the civil service. The paper presents the thesis that as a result of changes, several provisions of the civil service law violate the Constitutionally guaranteed citizens' right of access to the civil service and prevent the creation of the civil service in the form desired by the constitutional lawmaker.

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СТАТУТ АП ВОЈВОДИНЕ ОД 2009. ПРЕД УСТАВНИМ СУДОМ – ПОСЛЕДЊИ ЧИН?

Author(s): Vladan Petrov / Language(s): Serbian Issue: 2/2013

Према Уставу Србије од 2006, статут је највиши правни акт аутономне покрајине (чл. 185, ст. 1). Овај акт доноси скупштина аутономне покрајине, уз претходну сагласност Народне скупштине (чл. 185, ст. 2). Скупштина аутономне покрајине Војводине (у даљем тексту: АПВ) утврдила је Предлог статута АПВ 14. октобра 2008. године. После више од годину дана застоја, 7. новембра 2009. Скупштина АПВ је утврдила правно-техничке исправке овог предлога статута, да би Народна скупштина донела Одлуку о давању претходне сагласности на Предлог статута 30. новембра 2009. Статут АПВ проглашен је на основу Одлуке Скупштине АПВ на седници од 14. децембра 2009.

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УСТАВНА ЖАЛБА – ТЕОРИЈСКОПРАВНИ ОКВИР

Author(s): Darko Simović / Language(s): Serbian Issue: 1/2012

The expansion of constitutional complaint through the landscape of European constitutionalism in the last decade of the XX century, as well as its implementation in the Serbian constitutional system in 2006, have increased the interest of Serbian legal scholars in this legal instrument. Comparative law does not provide a uniform institutional model of constitutional complaint, and experience of the Republic of Serbia with respect to this institute is very short. As a result, many questions regarding constitutional complaint have been raised in Serbian legal theory so far. This paper offers a theoretical and legal framework of the instrument of constitutional complaint. The author firstly examines the institutional models of three countries − Germany, Austria and Spain, and, secondly, deals with some specific characteristics of other constitutional systems which have subsequently introduced this legal instrument.

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ПРЕАМБУЛЕ УСТАВА – УПОРЕДНА СТУДИЈА 194 ВАЖЕЋА УСТАВА

Author(s): Vladan M. Kutlešić / Language(s): Serbian Issue: 2/2010

The author examines a number of relevant legal issues pertaining to the preambles of contemporary constitutions (their scope, contents and structure), puts forward the question of legal nature of preamble, and makes an effort to clarify the notion of preamble. He analyzes 194 preambles to the contemporary constitutions, and concludes that preamble has the same legal nature and strength as the very constitutions it foreshows.

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СТАЛНОСТ СУДИЈСКЕ ФУНКЦИЈЕ VS. ОПШТИ РЕИЗБОР СУДИЈА У РЕПУБЛИЦИ СРБИЈИ

Author(s): Slobodan P. Orlović / Language(s): Serbian Issue: 2/2010

Permanent tenure of judicial office is one of prerequisites of the independent judiciary and of the rule of law principle. It is embodied in Serbian Constitution of 2006. The author questions constitutionality of the ongoing reform of judiciary in the Republic of Serbia, and claims that the manner in which the reform is being implemented violates the very principle of permanency of judicial function.

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СТЕЧАЈНА НАЦИОНАЛИЗАЦИЈА (КОНФИСКАЦИЈА) У СРБИЈИ

Author(s): Nebojša Jovanović / Language(s): Serbian Issue: 1/2010

The author points to two types of insolvency proceedings under Serbian law whereby the State appropriates assets of the debtor; the first one being the insolvency due to an insufficient value of assets; and the second, the insolvency of a debtor who has been insolvent for an extended period of time. The Constitution of the Republic of Serbia (2006) prohibits the State from depriving citizens of their property. Seizing someone’s assets as a forfeit by the public treasury may be allowed on two conditions, that must be fulfilled cumulatively: that there is public interest involved which justifies confiscation, and that the deprived receives just compensation. The author holds that the existing rules on insolvency proceedings run contrary to the Constitution, and give leeway to the State to confiscate assets of the insolvent debtors on unconstitutional grounds.

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УСТАВНИ СУД У УСТАВУ РЕПУБЛИКЕ СРБИЈЕ ОД 2006. ГОДИНЕ

Author(s): Ratko Marković / Language(s): Serbian Issue: 2/2007

The institution of Constitutional Court is one of the most powerful levers of constitutionalization of the state power. This institution exists in Serbia for more than 45 years. Nevertheless, both the social system and the system of the state power organization prevented it from playing its full role. The lack of necessary legal instruments was an obstacle to this as well, but this obstacle was surmounted by the 2006 Constitution. However, the 2006 Constitution did not resolve all the predicaments concerning the institution of constitutional court. Among those predicaments are the number of judges, method and terms and conditions of their election, as well as their new competences. Some perplexities emerged as far as the character and scope of the judge’s competences goes, mainly in the sphere of elections and constitutional complaints, but also in the cases of special complaints.

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О УСТАВНОСТИ ОПШТЕГ РЕИЗБОРА СУДИЈА

Author(s): Tanasije Marinković / Language(s): Serbian Issue: 1/2009

The Law on Judges, adopted on 22 December 2008, envisaged a general reappointment of judges in the Republic of Serbia, pursuant to the Constitutional Law on the Transitional Provisions of the Constitution, adopted on 10 November 2006. Insisting on the security of tenure of judges and on the prohibition of the retroactive effect of laws, but foremostly on the principle of legal continuity between the 1990 and 2006 Constitutions of the Republic of Serbia, the author points out the unconstitutionality of the respective provisions both of the Law on Judges and of the Constitutional Law on the Transitional Provisions of the Constitution.

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