scholarly journals THE LEGAL NATURE OF THE POSITIONS OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF AZERBAYJAN

2020 ◽  
Vol 7 (7(76)) ◽  
pp. 49-53
Author(s):  
Kenul Huseynova
Keyword(s):  
Constitutional Court ◽  
Legal Nature ◽  
Legal Position ◽  
The Republic ◽  
Characteristic Features

This article investigates the characteristic features of the judicial precedent and legal positions of the Constitutional Court. We consider such concepts as «judicial precedent» and «legal position of the Constitutional Court of the Republic of Azerbayjan” and arrive to a conclusion that they are not identical. We single out legal positions of the Constitutional Court and analyze their consistency with the concept of judicial precedent.

scholarly journals The Republic of Srpska between Scylla and Charybdis

2005 ◽  
pp. 125-156
Author(s):  
Milijan Popovic
Keyword(s):  
Bosnia And Herzegovina ◽  
International Community ◽  
Constitutional Court ◽  
Peace Agreement ◽  
Police Reform ◽  
Legal Nature ◽  
Yugoslav Republic ◽  
Dayton Peace Agreement ◽  
The Republic ◽  
National Defence

The Republic of Srpska was created during the civil war in the territory of the former Yugoslav republic of Bosnia and Herzegovina in 1992-1995. Within the general framework of the agreement to establich peace in Bosnia and Herzegovina (the Dayton Peace Agreement), in Novembar 1995 it was recognized as an entity within Bosnia and Herzegovina. According to the Dayton Constitution, by its legal nature The Republic of Srpska was a confederative unit (with some elements of a federal unit) within Bosnia and Herzegovina as a confederation (with the some elements of a federation). During the last ten years, both Bosnia and Herzegovina and The Republic of Srpska underwent deep transformations. An indication of these deep transformations was the decision of the president of the Arbitration Tribunal to establish the District of Brcko as the third entity sui generis (in addition to The Republic of Srpska and The Federation of Bosnia and Herzegovina). Two basic levers in the anti-Dayton transformational processes which occurred in Bosnia and Herzegovina and its entities were The Constitutional Court of Bosnia and Herzegovina, as well as The High Representative of the international community for Bosnia and Herzegovina. The Constitutional Court of Bosnia and Herzegovina passed a series of anti-Dayton decisions; by its consequences the most far-reaching decision was related to the issue U 50/2000 which declared the constitutionality of the Bosniacs, the Croats and the Serbs in the entities. On the basis of that decision, in 2000 a set of amendments to The Constitution of The Republic of Srpska was passed which deeply changed the legal nature of The Republic of Srpska. It was transformed from a confederative into to a federal unit. The anti-Dayton activity of The High Representative of the international community is even more pronounced. He became the main constitutional and legislative factor of Bosnia and Herzegovina and its entities. Under his pressure, in 2003 new amendments to The Constitution of The Republic of Srpska were passed which further diminished the authorities in The Republic of Srpska, specially in the field of national defence and public security. The High Representative himself brought and declared dozens of laws for Bosnia and Herzegovina with which he transformed Bosnia and Herzegovina from the union of states into a federation. With the police reform he announced, he is preparing to regionalize Bosnia and Herzegovina, not taking into account the entity borders, and thus to pave the way for the final abolition of entities including The Republic of Srpska.

La cessation des fonctions des membres de la Cour constitutionnelle en droit congolais : modalités et effets juridiques

2021 ◽  
Vol 54 (1) ◽  
pp. 78-97
Author(s):  
Dieu-Merci Ngusu Masuta
Keyword(s):  
Theoretical Analysis ◽  
Detailed Analysis ◽  
Constitutional Law ◽  
The Other ◽  
Constitutional Court ◽  
Other Hand ◽  
Legal Nature ◽  
The Law ◽  
The Republic ◽  
The One

This article provides a study of the modalities and legal effects of the termination of the functions of members of the Congolese Constitutional Court. It offers a detailed analysis based mainly on the relevant provisions of Ordinance No. 16/070 of August 22, 2016 on the special status of members of the Constitutional Court. This Ordinance was adopted in application of the Congolese Constitution of February 18, 2006 in conjunction with organic-law No. 13/026 of October 15, 2013 on the organization and functioning of the Constitutional Court. Distinguishing on the one hand the normal cause of cessation of functions - the expiry of the mandate - and on the other hand the so-called exceptional causes - the resignation, dismissal and death of a member -, the study shows that the enumeration thus retained from the ordinance is incomplete with regard to the above-mentioned organic law. Thus, the list must be supplemented with the "nullity of the appointment" of a member in accordance with articles 2 and 3 of that organic law. The law is silent, however, on the issue of the voluntary retirement of members, although the implementation of this right inevitably has an impact on the end of their functions. The study therefore continues by an examination of both the general and the specific legal effects of these different modalities of ending the functions of a member of the Constitutional Court. Finally, in order to support and complete this essentially theoretical analysis, the article also looks at the question that remains most topical in Congolese constitutional law, namely the legal nature of the 'power' of the President of the Republic to appoint members of the Constitutional Court to other Courts or functions during their term of office. It concludes that such a power is not justified in the current framework of Congolese constitutional law. Indeed, it is inconceivable that such appointments should be imposed on the Constitutional Court members, their acceptance being the only exception to the principle of irremovability that governs them. Such a case should be considered one of voluntary resignation and a subsitute member should therefore only be appointed after this situation has been ascertained and established by the Constitutional Court.

scholarly journals Karakteristik Judicial Order dalam Putusan Mahkamah Konstitusi dengan Amar Tidak Dapat Diterima

2020 ◽  
Vol 16 (4) ◽  
pp. 883
Author(s):  
Intan Permata Putri ◽  
Mohammad Mahrus Ali
Keyword(s):  
Data Collection ◽  
Judicial Review ◽  
Constitutional Court ◽  
Literature Study ◽  
Legal Research ◽  
Collection Method ◽  
Legal Position ◽  
The Subject ◽  
The Republic ◽  
Legal Consequences

Putusan Mahkamah Konstitusi dalam pengujian undang-undang terhadap Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (UUD NRI 1945) dengan amar tidak dapat diterima atau niet ontvankelijke verklaard (NO) pada umumnya tidak memiliki pertimbangan hukum. Akan tetapi dalam perkembangannya MK memberikan pertimbangan hukum baik mengenai pokok perkara dan kedudukan hukum Pemohon. Penelitian ini hendak menjawab dua permasalahan yaitu; apa urgensi adanya pertimbangan hukum yang mengandung judicial order dalam putusan dengan amar tidak dapat diterima? Kemudian bagaimana karakteristik judicial order dalam putusan dengan amar tidak dapat diterima? Penelitian ini merupakan penelitian hukum normatif dengan metode pengumpulan data melalui studi pustaka. Penelitian ini mengelompokkan putusan yang memiliki amar NO dari tahun 2003 sampai dengan 2018 yang berjumlah 375 putusan. Dari jumlah tersebut, putusan NO yang memiliki pertimbangan hukum sebanyak 71 putusan. Penelitian ini menemukan 3 putusan yang didalam pertimbangan hukumnya terdapat judicial order yakni Putusan 105/PUU-XIV/2016, Putusan 57/PUU-XV/2017, dan Putusan 98/PUU-XVI/2018. Simpulan dari penelitian ini adalah putusan dengan amar Tidak Dapat Diterima yang memuat judicial order selalu berkaitan dengan implementasi putusan yang tidak berjalan sebagaimana mestinya. MK menegaskan kembali sifat final dan binding Putusan MK serta sifat putusan MK yang declatoir konstitutif melalui putusan a quo. Karakteristik judicial order dalam ketiga a quo adalah ketika MK memberikan peringatan konstitusional secara bertahap (gradual). Pada Putusan 105/PUU-XIV/2016 MK menegaskan bahwa pengabaian putusan MK merupakan perbuatan melawan hukum, selanjutnya pada putusan 57/PUU-XV/2017 MK tegaskan sifat putusan yang self executing dan yang paling mendasar adalah pada putusan 98/PUU-XVI/2018 yang menyatakan bahwa lembaga atau masyarakat yang tidak menjalankan putusan MK merupakan pembangkangan terhadap konstitusi. Lahirnya pertimbangan tersebut sebagai ikhtiar menegakkan supremasi konstitusi dan marwah Mahkamah Konstitusi.Decisions of the Constitutional Court in judicial review of the 1945 Constitution of the Republic of Indonesia (1945 Constitution) with an unacceptable verdict or niet ontvankelijke verklaard (NO) generally do not have legal considerations. However, in its development the Court gave legal considerations both on the subject matter and legal position of the Petitioner. This research wants to answer why is the Constitutional Court gives judgment (judicial order) to the case with the unacceptable verdict? What are the legal consequences of legal considerations in the unacceptable verdict on compliance with the Constitutional Court's decision? This research is a normative legal research with data collection method through literature study. This study grouped the decisions that had NO verdicts from 2003 to 2018 totaling 375 decisions. From all of those, NO verdicts that have legal considerations are 71. This study found 3 decisions that have judicial orders in their legal considerations namely Decision 105/PUU-XIV/2016, Decision 57/PUU-XV/2017, and Decision 98/PUU-XVI/2018. The conclusion of this research is that an unacceptable verdict that contains a judicial order is always related to the implementation of a decision that does not work as it should. The Court reaffirmed the final and binding character of the Constitutional Court's decision as well as the character of the Constitutional Court's decision which declared constitutive through a quo decision. The characteristic of judicial order in the three a quo is when the Constitutional Court gives a gradual constitutional warning. In Decision 105/PUU-XIV/2016 the Constitutional Court confirmed that the disregard for the Constitutional Court's decision was an act against the law, then in the decision 57/PUU-XV/2017 the Constitutional Court affirmed the character of the decision that was self-executing and the most basic was the decision 98/PUU-XVI/2018 which states that an institution or community that does not carry out the Constitutional Court's decision is a defiance of the constitution. The birth of these considerations is as an effort to uphold the supremacy of the constitution and the spirit of the Constitutional Court. 

scholarly journals Legal Nature of the Commissioner for the Protection of Equality in Republic of Serbia // Upravno-pravni aspekti poverenika za zaštitu ravnopravnosti u Republici Srbiji

2018 ◽  
Vol 8 (8) ◽  
pp. 244
Author(s):  
Stefan Andonović
Keyword(s):  
Legal System ◽  
Administrative Law ◽  
Administrative Procedure ◽  
Legal Nature ◽  
Legal Position ◽  
Specific Position ◽  
The Subject ◽  
The Republic ◽  
Constitutional System

The subject of this paper is determination of the legal nature of the Commissioner for the Protection of Equality in legal system of the Republic of Serbia. The specific position and role in the legal system is examined from the perspective and methods of administrative law. Special attention is paid to the analysis of the legal nature of the Commissioner’s acts in the framework of his powers. Also, the paper analzyed certain issues related to the procedure before the Commissioner, as well as the connection between this procedure and the general administrative procedure. Based on the analysis of the legal position, the legal acts of the Commissioner, and the constitutional system of division of power, the author concludes that the Commissioner’s legal nature in the Republic of Serbia is predominantly administrative-legal.

THE SOME THEORITICAL-LEGAL ISSUES OF THE INTERPRETATION OF LEGAL NORMS BY THE CONSTITUIONAL COURT

2021 ◽  
Vol 6 (9) ◽  
pp. 16-24
Author(s):  
Maftuna Аbdullayeva ◽  
Keyword(s):  
Law Enforcement ◽  
Practical Implementation ◽  
Constitutional Court ◽  
Theoretical Problem ◽  
Legal Interpretation ◽  
Legal Norms ◽  
Enforcement Official ◽  
Legal Literature ◽  
Legal Position ◽  
The Republic

For the purpose of uniform application of normative acts by citizens, officials, state bodies, it becomes necessary to interpret them. The activity to establish the exact content of a legal act for its practical implementation has received a name in the legal literature –interpretation. Thus, the article analyzes the legal position of the Constitutional Court of the Republic of Uzbekistan in the understanding of modern realities, the essence of adopted normative-legal acts, law enforcement practice, and the role and significance of constitutional appeals. Also author shows the theoretical problem of the concept and content of constitutional and legal interpretation. The signs and features of this type of interpretation are revealed, itsuniversal nature is emphasized, the problems of interrelation with related categories are touched upon, and its definition is given.Key words: constitutional judiciary, the competence of Constitutional court, constitutional application, law enforcement, official interpretation

scholarly journals INKONSISTENSI PUTUSAN MAHKAMAH KONSTITUSI TERHADAP KEBERADAAN KOMISI PEMBERANTASAN KORUPSI SEBAGAI LEMBAGA NEGARA INDEPENDEN

2020 ◽  
Vol 1 (01) ◽  
pp. 1-26
Author(s):  
Theresa Yolanda Sirait ◽  
Bintang ME Naibaho ◽  
Janpatar Simamora ◽  
Leonardo David Simatupang
Keyword(s):  
State Institution ◽  
Constitutional Court ◽  
Court Decisions ◽  
Independent State ◽  
Executive Authority ◽  
The Status ◽  
Legal Position ◽  
The Republic

The Constitutional Court as mandated in the constitution has a function as a guardian of the constitution, therefore, if there are norms in the Act that against to the 1945 Constitution of the Republic of Indonesia can be done by a trial. The decision of the Constitutional Court in the trial of the Act is related to the formal and material aspects, then the verdict that has been fulfilled the legal considerations by the judge, it will become the basis of a decision. Therefore, the verdict can not revoked arbitrarily unless in making decision due to coercion or negligence. The thesis deals and focuses on two aspects: First, showing and analyzing the considerations of the Constitutional Court in deciding the case No.012-016-019 / PUU-IV / 2006, No.19 / PUU-V / 2017, No.37-39 / PUU-VIII / 2010, No.5 / PUU-IX / 2011, No.36 / PUU-XV / 2017. Second, explains why the Constitutional Court inconsistency in determining the status and legal position of the KPK (Corruption Eradication Commision) through its verdict. From the new latest verdict of the Constitutional Court said that the KPK is an independent state institution under the executive authority , it is different from the previous four Constitutional Court decisions which said KPK as an independent state institution.

Tendencies of Forming a Multistructure Economy in Uzbekistan

2019 ◽  
Vol 5 (12) ◽  
pp. 305-311
Author(s):  
M. Ashurov ◽  
Yu. Shakirova ◽  
O. Turdibekov
Keyword(s):  
Corporate Governance ◽  
Private Sector ◽  
Modern Corporation ◽  
The Republic ◽  
Characteristic Features

The article discusses some issues of the formation of a multistructure economy in the Republic of Uzbekistan. The authors performed an analysis of the processes of privatization and privatization in the country. The general tendencies of privatization by stages and results are revealed and generalized. The characteristic features of the stages of denationalization are studied. The formation of the private sector and on the basis of this form of joint stock companies. The need for improving the mechanism of corporate governance in a modern corporation is highlighted.

Konstytucyjne zasady postępowania karnego na tle orzecznictwa Polskiego Trybunału Konstytucyjnego

2017 ◽  
pp. 67-86
Author(s):  
Arkadiusz Krajewski
Keyword(s):  
Civil Rights ◽  
Social Factor ◽  
Constitutional Court ◽  
Criminal Proceedings ◽  
Legal Norms ◽  
Constitutional Tribunal ◽  
The Republic ◽  
Humanitarian Principle ◽  
The Right ◽  
Social Importance

The Constitutional Tribunal is defined as the Polish constitutional court and at the same time the judicial authority. It was created at the turn of 1982. Not long after that it began its jurisprudence; more precisely it was in 1986. Describing its basic tasks, it is pointed out that judicial review of so-called constitutional law deserves a closer look. This is particularly true about controlling the compliance of lower legal norms with higher legal norms. Here attention is drawn towards the connection of the Constitution with some international agreements, ie. the court of law. The purpose of the paper below was to analyze the constitutional principles of criminal proceedings in the context of the case law of the Polish Constitutional Court. At the beginning the concept, the division and the role of the constitutional rules of criminal procedure were presented. In this section, it was emphasized that all the rules of the criminal process are considered superior norms of a very significant social importance. Then the principle of objectivity, which is reflected in the Constitution of the Republic, was described. A following aspect was the discussion of the principle of the presumption of innocence and the principle of in dubio pro reo. It has been emphasized that the essence of the principle is that the person who was brought before the court is treated as innocent until a lawful judgment is pronounced against the defendant. The author also pointed out the principle of the right to defense. According to this rule, the defendant has the right to defend themselves in the process and to use the help of a defender. Another described principle is so-called rule of publicity. It concerns the fact that information about criminal proceedings should be accessible to the public. Then it was pointed to the principle of the right to the trial and the independence of the judiciary. The first one is reflected in national law and acts of international rank. The second shows that the independence of the judiciary is determined by the proper exercise of the profession of judge and becomes a guarantee of freedom and civil rights. The humanitarian principle and the principle of participation of the social factor in the penal process are shown in the final section. At the end of the paper a summary and conclusions were presented.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

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