scholarly journals The Development of the Constitutional Principle of Involvement of Government Authorities in the Establishment of Local Self-Government Authorities

2021 ◽  
Vol 2 ◽  
pp. 16-20
Author(s):  
Igor S. Andreechev ◽  
Keyword(s):  
Constitutional Court ◽  
Municipal Administration ◽  
Constitutional Principle ◽  
Participation Mechanisms

Taking into account the amendments made to the Constitution of Russia, approaches to the development of legislation on the participation of state authorities in the formation of local self-government bodies are presented This policy began to take shape simultaneously with the discussion of amendments. The first such step was the introduction of approval of the appointment of officials of local administrations that carry out management in the field of education. This regulation does not meet the requirements of completeness, and given that only one area of municipal administration is selected, it is not systematic. With this in mind, criteria have been developed that allow for the development of specific participation mechanisms. They apply the legal positions of the constitutional Court of Russia. Based on these criteria, the areas of management in which it is proposed to develop the principle under consideration are identified.

scholarly journals Addressing local government issues in the practice of the Constitutional Court of the Russian Federation during the implementation of municipal reform in Russia

2020 ◽  
Vol 6 (2) ◽  
pp. 133-147
Author(s):  
Aleksey Andreevich Amiantov
Keyword(s):  
Russian Federation ◽  
Descriptive Analysis ◽  
Constitutional Court ◽  
Local Authorities ◽  
Constitutional Principle ◽  
Municipal Reform ◽  
The Russian Federation ◽  
Regional Authorities ◽  
Legal Consequences

The presented study is devoted to the study of the practice of the Constitutional Court of the Russian Federation in relation to issues of local self-government in the context of the municipal reform of 2014-2015. and its legal consequences. The aim of this work is to carry out a comprehensive assessment of the practice of the Constitutional Court of the Russian Federation on the identified problems of the work of local authorities in the period following the start of municipal reform. The research methodology is built by combining descriptive analysis elements and a case study. It is concluded that the Constitutional Court of the Russian Federation has consistently maintained its position on the constitutional nature of the reform of local authorities. The provisions of the relevant regulatory legal acts are limited only partially and only in relation to first-level municipalities - municipal authorities of settlements. Given the deprivation of the latter a significant part of the powers and the observed transition to a singlelevel system of local self-government, the adoption of these restrictions does not significantly affect the implementation of the reform. Of fundamental importance is the position of the Constitutional Court of the Russian Federation regarding the new powers of regional authorities in relation to municipalities. The increase in the arsenal of legal instruments of the influence of the leadership of the constituent entities of the federation on the heads of local self-government was not interpreted as a violation of the constitutional principle of the independence of municipalities. The latter opens up the possibility for further legalization of the process of embedding municipal bodies in the structure of the informal “power vertical”.

scholarly journals Legal nature of social justice as an integral part of the principle of justice

2021 ◽  
pp. 180-184
Author(s):  
I.P. Bakhnovskaya ◽  
O.A. Slobodyska
Keyword(s):  
Social Justice ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Moral Principles ◽  
Constitutional Principle ◽  
Legal Nature ◽  
Principle Of Justice ◽  
Normative Basis ◽  
Temporal Dimensions ◽  
Principle Of Legality

The article presents and solves the scientific problem of identifying the legal nature and content of social justice as an integral part of the principle of justice. The theoretical and normative basis of the study were scientific works of domestic and foreign scientists in the field of jurisprudence, philosophy, political science, sociology, history. They are devoted to the general problems of the essence of the principle of justice, its value and normative content, social and legal nature of the principle of justice, issues of legal certainty and stability of legal regulation, specific problems of implementation of the constitutional principle of justice. The problem of justice, namely social justice becomes especially relevant in the context of globalization. The practice of the Constitutional Court of Ukraine shows that the Constitution of Ukraine does not enshrine the principle of social justice in a direct form, but the entire legal system is based on the idea of justice. It is established that justice essentially reflects the realities of a society, the level of its cultural and legal maturity. It can manifest itself at different social levels, in different spatial and temporal dimensions. Thus, correlating the concepts of justice and law, justice can be considered as a legal standard with which the real socio-economic, political, financial, moral and ideological relations. Justice is not only a moral, philosophical category, but, first of all, a legal one. Justice is a legal phenomenon that relates to the very essence of law and is the distinguishing feature between law and the principles of law. In addition, it is a phenomenon of morality, because it is an idea that determines the moral principles of society. It should be noted that in some cases the application of the principle of justice is complicated, for example, when it conflicts with the principle of legality. Attention is drawn to the fact that in our state the principle of justice is not fully implemented. Social justice is the most important social value, a creative phenomenon that contributes to the reform of society on the basis of democ-racy and humanism.

scholarly journals Constitutional principles in public administrator's decision-making under the case law of the Supreme Administrative Court of Lithuania

2018 ◽  
Vol 2 (1) ◽  
pp. 109-115
Author(s):  
Ieva Deviatnikovaitė
Keyword(s):  
Decision Making ◽  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Constitutional Court ◽  
Constitutional Principle ◽  
Family Names ◽  
Administrative Courts ◽  
The Republic

This paper serves few purposes. First, it examines the principles of public administration in Lithuania. Good administration principle is analysed as constitutional principle relying on the case law of the Supreme Administrative Court of Lithuania. Second, it explores impact of the decisions of Constitutional Court of the Republic of Lithuania to the contemporary judicial review of Lithuanian administrative courts. Therefore, one of the latest rulings of the Supreme Administrative Court of Lithuania related to the spelling of names and family names in the passports of citizens of the Republic of Lithuania will be reviewed.

PRINCIPLE OF DIRECT FORCE OF HUMAN RIGHTS AND PECULIARITIES OF SOCIAL RIGHTS

2019 ◽  
Vol 14 (5) ◽  
pp. 114-140
Author(s):  
NATALIA V. KOLOTOVA
Keyword(s):  
Human Rights ◽  
Direct Effect ◽  
Legal Regulation ◽  
International Standards ◽  
Social Rights ◽  
Constitutional Court ◽  
Political Rights ◽  
Constitutional Principle ◽  
Theoretical Approaches ◽  
The Government

International standards on human rights and Constitution of the Russian Federation put social rights on a par with civil and political rights what is interpreted as a necessity to provide them with equitable and efficient remedy, extension to them of the general principles of effect of human rights and the related remedial procedures. However, the specifics of the nature of social rights introduces its adjustments, at times, fairly significant ones. Thus, although Article 18 of RF Constitution proclaims the principle of direct force for all human rights, social rights primarily produce effect indirectly. Irrespective of the distinctions in the content of two principles — more generalized principle of direct effect of constitutional provisions and direct force of human rights; it is majorly recognized in the national doctrine of the constitutional right that the indirect force of social rights does not contradict to the general principle of direct effect of constitutional provisions. The indirect force of constitutional social rights is conditioned by the necessity of their specification and detalization in the laws; this can be stated in the rule itself or stem from a high degree of abstractness of social provisions formulated in the norms-standards and norms-principles. The indirect force manifests itself in the fact that courts when hearing cases related to challenging the provisions of social legislation apply the norms of the Constitution only in relationship with the specifying rules of branches of law referring to the fundamental constitutional principles.RF Constitutional Court distinguishes the rights "directly recognized by the Constitution" and "acquired by virtue of law" and pursues different policies in respect of their interpretation. The Court proceeds from the fact that the direct force of social rights is primarily aimed at the legislator who may not adopt laws unreasonably narrowing the scope of legal regulation of such rights thus interprets constitutional social rights in aggregate with other constitutional principles — support of citizens’ confidence in law and acts of the government, legal certainty and reasonable stability of legal regulation, proportionality etc.The highlighted specifics requires doctrinal comprehension and development of theoretical approaches to the content of a constitutional principle of direct force of human rights in the area of social rights, determination of legal tools and me cha-nisms of their remedy including via a proper judicial procedure.

Religion, Law, and Democracy

2020 ◽  
Author(s):  
Ernst-Wolfgang Böckenförde
Keyword(s):  
Catholic Church ◽  
Constitutional Court ◽  
Modern Democracy ◽  
Legal Scholar ◽  
Vitro Fertilization ◽  
Constitutional Principle ◽  
Copernican Revolution ◽  
Federal Constitutional ◽  
Religion And State

This is the first representative edition in English of Ernst-Wolfgang Böckenförde’s writings on religion, law, and democracy. As a historian, legal scholar, and former judge on Germany’s Federal Constitutional Court, Böckenförde (1930–2019) has shaped legal and political discourse in twentieth-century Germany like few others. Doing so, he combined three normative orientations writings as a political liberal, as a social democrat, and as a Catholic. The included articles discuss the place of religion in modern democracy, the role of the Catholic Church in the Nazi seizure of power in 1933, the Copernican revolution of Vatican II in embracing religious freedom and accepting the modern secular state, the history of the concept of freedom of conscience, the relation of religion and state in Hegel’s writings, democratic models of secularism, theological reflections on the character of secular law, models of political theology, the need for canon law reform, and bioethical issues, such as the regulation of abortion, genetic screening, and in vitro fertilization in light of the constitutional principle of human dignity. This is the second of two volumes, of which the first, published in 2017, brought together articles in constitutional and political theory. Beside fifteen articles, the volume contains excerpts of the biographical interview that historian and legal scholar Dieter Gosewinkel conducted with Böckenförde in 2009/2010. Introductions and annotations by the editors accompany the text throughout, providing background explanations on the context of German and European politics and history. A comprehensive list of Ernst-Wolfgang Böckenförde’s publications is included in an appendix.

A special feature of corporate income taxation in Portugal: the autonomous taxation of expenses

2017 ◽  
Vol 59 (4) ◽  
pp. 489-503
Author(s):  
Ana Dinis ◽  
António Martins ◽  
Cidália Maria Lopes
Keyword(s):  
Tax Evasion ◽  
Income Tax ◽  
Effective Rate ◽  
Corporate Taxation ◽  
Tax Revenue ◽  
Constitutional Court ◽  
Content Type ◽  
Advantages And Disadvantages ◽  
Constitutional Principle

PurposeThe purpose of this paper is to discuss the following research questions: Is the Portuguese corporate income tax (CIT) losing its internal consistency by extending the autonomous taxation of expenses (ATE)? Are receipts derived from autonomous taxes so relevant that what began as an exception is gradually becoming a permanent feature of the income tax? Given the constitutional principle that corporate taxation should be fundamentally based on income, is the taxation of expenses unconstitutional? Is Portugal an international outlier, in applying this type of taxation to corporate expenses? Design/methodology/approachThe methodology used in the paper is a blend of legal research method and case study analysis. The interpretation of legal texts and the ratio legis discussion (hermeneutical side), the evaluation of advantages and disadvantages of autonomous taxes (argumentative approach) and the use of aggregate data to gauge an impression of autonomous taxes’ impact on global tax receipts (empirical side) will, jointly, be used to analyse the topic. Autonomous taxation is a case study on how a (albeit distortive) solution is being applied in an European Union (EU) country to significantly enhance corporate-related tax revenue. FindingsThe authors conclude that autonomous taxation is a relevant source of revenue and its elimination is not foreseeable, at least in the medium term. Moreover, the extension of the tax base is gradually transforming CIT in a kind of dual tax, by charging profits and some expenses. The Constitutional Court, stressing the equity principle, has not ruled autonomous taxation unconstitutional, invoking usefulness against tax evasion. Finally, with the exception of some Portuguese-speaking countries, no other comparable international experience is observed. Practical implicationsThe autonomous taxes (ATE) and its progressive enlargement imply, on the one hand, that the CIT has been slowly, but inexorably, losing its sole purpose of taxing profits, and imposing a tax penalty on an increasing set of accounting expenses. On the other hand, the growing number of expenses subjected to taxation leads some authors to ponder if the Portuguese tax regime is losing attractiveness. By increasing ATE’s scope, the effective rate tends to move upwards, countering reductions in the statutory rate. Finally, tax law will increasingly influence managers’ daily decisions, given the set of expenses targeted by autonomous taxes. Originality/valueTaking into account the aim of this study, the discussion of a Portuguese particular feature of corporate taxation can highlight useful policy points to a broader audience. Many Organization for Economic Cooperation and Development (OECD) countries face a dire situation in public finances. Therefore, given the pressure to increase tax receipts, the ATE can be a case study on how a (albeit distortive) solution is being applied in an EU country to significantly enhance corporate-related tax revenue.

Non-ideal theory of constitutional adjudication

2018 ◽  
Vol 7 (1) ◽  
pp. 14-53 ◽  
Author(s):  
RONI MANN
Keyword(s):  
Normative Theory ◽  
Ideal Theory ◽  
Constitutional Theory ◽  
Constitutional Court ◽  
Science Literature ◽  
Constitutional Courts ◽  
Constitutional Principle ◽  
The One ◽  
Constitutional Adjudication ◽  
Hard Cases

Abstract:When a constitutional court faces opposition from other branches of government or significant segments of the public, should it always hold fast to what it considers constitutionally right, even where this would potentially harm its status and perceived legitimacy? Or are constitutional compromises sometimes justified? Such ‘institutionally hard’ cases – those characterised by a sharp tension between constitutional principle and institutional prudence – pose a true dilemma for constitutionalism. This article advances a realistic, yet principled, liberal-constitutional approach to this dilemma, put forth in the vein of Rawlsian non-ideal theory. It addresses a troubling gap between, on the one hand, theidealisingdiscourse of constitutional theory – which overlooks or downplays the actual social and political pressures that courts must confront – and, on the other, a growing political science literature which, in the name of ‘realism’, views judges solely as strategic actors, leaving no role for principled reasoning. What has stepped into the gap in normative theory is a vague notion of ‘judicial statesmanship’, which praises or criticises judges post hoc, on an intuitive basis, without any tangible prescriptive bite. Developing evaluative and prescriptive guidelines for institutionally-hard cases, a non-ideal theory of constitutional adjudication should construct principles thatbothreinforce the commitment to ideal constitutional principle,andproperly situate constitutional courts within the real – contingent and often very non-ideal – social and political contexts in which they operate.

EU Law in the Czech Republic: From ultra vires of the Czech Government to ultra vires of the EU Court?

ICL Journal ◽  
2015 ◽  
Vol 9 (3) ◽  
Author(s):  
Ivo Šlosarčík
Keyword(s):  
Czech Republic ◽  
Constitutional Court ◽  
Eu Law ◽  
The European Union ◽  
Related Case ◽  
The Czech Republic ◽  
Constitutional Principle ◽  
Legal Provisions ◽  
International Obligations ◽  
The Eu

AbstractBefore the Czech Republic joined the European Union in 2004, its constitution has been amended with objective to guarantee constitutional conformity of the EU accession. The Czech legal system has been opened to external legal provisions and a constitutional mechanism has been established for transfer of competencies to an external entity, all framed by the explicitly formulated constitutional principle of loyalty to the international obligations of the Czech Republic. However, the ‘European amendment’ of the Czech Constitution has left several important issues unanswered, such as the principle of supremacy of the EU law or relations between the Czech Constitutional Court and the Court of Justice of the EU.This article analyses how the Czech Constitutional Court tackled with EU-related constitutional issues that emerged during the first decade of Czech membership in the EU. Focused on four key cases decided by the Czech Constitutional Court (sugar quotas, European Ar­rest Warrant, Lisbon Treaty, Slovak Pensions), the article will demonstrate how the Czech Constitutional Court combined a conservative and pragmatic approach in its EU law related case-law by formulating a constitutional doctrine of a ‘EU-friendly’ interpretation of Czech constitutional rules, while, at the same time, leaving the EU law formally outside the frontiers of Czech constitutional law and refusing EU law to be used as the ultimate argument in intra-judiciary disputes in the Czech Republic.

scholarly journals The Eternal Territory? The Crimean Crisis and Ukraine's Territorial Integrity as an Unamendable Constitutional Principle

2015 ◽  
Vol 16 (3) ◽  
pp. 542-580 ◽  
Author(s):  
Yaniv Roznai ◽  
Silvia Suteu
Keyword(s):  
General Level ◽  
Constitutional Theory ◽  
Constitutional Court ◽  
Council Of Europe ◽  
Territorial Integrity ◽  
Constitutional Principle ◽  
External Risk ◽  
Crimean Crisis ◽  
To Receive ◽  
East Central European

AbstractThis article reflects on the protection of territorial integrity in the Ukrainian constitution, especially on its provision of unamendability, against the backdrop of the 2014 Crimean crisis. At the general level, we examine whether constitutional theory can offer answers when confronted with the apparent inefficacy of a constitutional claim to eternity. More specifically, we focus on what the Ukrainian case can teach us about the implications of designating territorial integrity or indivisibility of a state as an eternal/unamendable constitutional principle. Building on insights from the Crimean crisis, we argue that the unamendable protection of territorial integrity is an especially ineffective type of eternity clause because it is subject to both the internal threat of secession and the external risk of forceful annexation, The preservative promise of unamendable territorial integrity is severely curtailed by this double vulnerability, even when backed by a constitutional court with far-reaching powers of judicial review. Territorial integrity as an eternal constitutional principle then remains merely aspirational. Moreover, we argue that the act of entrenching territorial protection as an unamendable principle is in clear tension with the idea of popular sovereignty and with mechanisms for expressing popular will.East-Central European constitutions play like songs of the liturgy on a very old gramophone. You hear the expected music performed in the service of constitutionalism, but you hear it with a crackle in the background. The performance is old-fashioned in order to receive thenulla obstatof the Council of Europe and sometimes (when territorial integrity comes up) the soprano's voice suffers from hysteria.

CONSTITUTIONAL DEVELOPMENTS AND HUMAN RIGHTS IN FRANCE: ONE STEP FORWARD, TWO STEPS BACK

2011 ◽  
Vol 60 (1) ◽  
pp. 167-188 ◽  
Author(s):  
Myriam Hunter-Henin
Keyword(s):  
Human Rights ◽  
Constitutional Reform ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Constitutional Review ◽  
Constitutional Principle ◽  
One Step ◽  
New Form

A major constitutional reform has occurred in France. On 1 March 2010, by virtue of the Constitutional Act of 10 December 20091 (itself pursuant to the constitutional reform of 23 July 2008)2 a new form of constitutional review came into force,3 with the blessing of the Conseil constitutionnel (the Constitutional council).4 The changes are considerable: the role of the Conseil constitutionnel has undergone a revolution which will have implications for ordinary courts as well as for citizens' rights. Arguably, the reform transforms the Conseil constitutionnel—so far a council with limited powers of review—into a true Constitutional court, and as discussed below, opens up constitutional issues in ordinary litigation, enhancing the protection of citizens' human rights. Owing to the reform, ‘Constitutional rights and liberties guaranteed by the Constitution’ can now be invoked against legislation in the course of litigation. This is a true revolution in France because, up until now, no individual was allowed to invoke the jurisdiction of the Conseil constitutionnel,5 nor were they authorized to invoke a constitutional principle in litigation, as this would have been asking ordinary judges to assess a piece of legislation against the Constitution, a task which exclusively belongs to the Conseil constitutionnel.6 Constitutional rights and liberties will now (as is further discussed below) play a key part in ordinary litigation.

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