scholarly journals Ustavni sud Bosne i Hercegovine - od ustavobranitelјa do ustavotvorca / Constitutional Court of Bosnia and Herzegovina

2016 ◽  
Vol 6 (6) ◽  
pp. 104
Author(s):  
Siniša Karan ◽  
Siniša Aleksić
Keyword(s):  
Bosnia And Herzegovina ◽  
Free Action ◽  
State Level ◽  
Legal Framework ◽  
The State ◽  
Federal State ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Right

The most important issue of the functioning and survival of the states of ambiguous complex federal type (such as BiH), has been the issue of division of competences, and in this regard, the issue of constitutional efficient control of these federal relationships and the distribution of competences.Belonging to a particular collectivity acts as a defining category in the views of the political and constitutional arrangement of Bosnia and Herzegovina as a state community. By bringing the connection of everything with the constitutional model, by creating an image of intolerance of socio-political situation in its own terms, by declaring it guilty of all the crises in Bosnia and Herzegovina, someone wants to create an uncontested application for its change, or replace it by a new constitutional model. The priority goal is to create the perception that the Dayton constitution is an interim solution, which has exhausted its capacities for further development of the state and legal framework. However, substantial amendments to the Constitution appeared de facto by the process of constitutional revision without changing a single letter of the Constitution.The Constitutional Court of BiH found itself in the role of an institution that would confirm and implement its “final and binding” decisions, whose non-implementation would be sanctioned.The Constitutional Court is a special state body whose primary function is to control the constitutionality and legality of legal acts according to a specific procedure. According to this principle, in addition to the Constitutional Court of BiH, there are constitutional courts of federal units (entities).However, by the role from the defenders of constitution to the constitution makers, the BiH Constitutional Court gave itself the right not only to preserve the Constitution, but also to change it through interpreting it (according to its Rules). The revision of constitutional norms through the Constitutional Court has been performed in several ways: first of all, through linguistic interpretation, the general interpretation of norms, as well as the interpretation of certain legal-political milieu of the BiH Federation and with the help of the international factors. The constitutional definition of the position and role of the BiH Constitutional Court has been erroneously and tendentiously interpreted, giving it the ability to significantly change the constitutional position of the entity in relation to BiH. At the same time, it allowed itself an action that was and has been completely out of range and control of the entities that make up the substantial figure of Bosnia and Herzegovina. In this sense, the main institution for the protection of the Constitution of Bosnia and Herzegovina followed the path of its original decommissioning and creation of constitutional framework for a new state of Bosnia and Herzegovina by its own decisions, going into assessments of political and discretionary nature of the state bodies’ decisions and expediency of those decisions.Due to the practices adopted, in neither of its segment, the Constitutional Court has been under social control of any institutional authorities at any level. By its free action, it becomes the main advantage in the hands of all those who advocate new constitutional realities which are the opposite of the Dayton Constitution of BiH. Contrary to the continental law school of centralized judicial control of constitutionality and strict implementation of the constitution and constitutional procedures, the Constitutional Court acts as the US Supreme Court.On the basis of already established rules, the BiH Constitutional Court rather than it only makes application to individual cases (the European law), on the contrary, on the basis of individual cases it determines the rules (precedent Anglo Saxon law). That is why all serious attempts would question the action of unconstitutional institutions at the state level, for the final authority of the Constitutional Court of BiH and its current practices are doomed to failure in advance.The current rules on the one hand and the court practice on which the Constitutional Court operates on the other hand, explicit show the tendency of transformation of a complex federal state structure with elements of confederal type, according to a unitary, in the form of constitutional protection.Transfer of competencies from the entities to the state, confirmed by the BiH Constitutional Court, which was carried out in the post Dayton period with the use of methods that are deeply in conflict with democratic principles, significantly reduced the confederal items of BiH arrangement, in favor of strengthening capacities of the state institutions and federal state.

scholarly journals Prospects of decriminalization and legalization of euthanasia in Ukraine

2021 ◽  
pp. 55-60
Author(s):  
A.P Lutsenko ◽  
D.I. Khairullina
Keyword(s):  
Human Rights ◽  
Assisted Suicide ◽  
State Level ◽  
Legal Framework ◽  
Legal Regulation ◽  
The State ◽  
Constitutional Court ◽  
Right To Life ◽  
Human Right ◽  
The Right

This article is devoted to the study of the legal regulation of the institution of euthanasia in foreign practice and in Ukrainian law. We conducted a thorough analysis of the existing arguments for and against the legalization of the assisted suicide procedure, which have developed in scientific doctrine. Given the importance of the right to life in the fundamental human rights system, deprivation of any life is unacceptable, as it could set a precedent that would lead to the abuse of criminal intent by the possibility of masking premeditated murder with voluntary consent to accelerate biological death. That is why today in Ukraine deprivation of life at the request of a person is a crime, namely premeditated murder, and therefore euthanasia at the state level is now criminalized. However, after analyzing the views of scholars studying the dynamics of human rights, as well as paying attention to the practice of countries that have already legalized euthanasia at the state level, we concluded that assisted suicide today is a powerful mechanism that can guarantee the human right to a dignified existence at the end of her life. A number of foreign countries have shown by their example that the legalization of euthanasia is an important step towards building a more humane and humane society, where there is a place of mercy for terminally ill people who want to end their lives painlessly. The current position of the Constitutional Court of Ukraine on the interpretation of the right to life does not allow for its expanded understanding, and therefore there is a need to amend the Constitution (for example recognition of the right to die) or change the position of the Court. In order for the right to dispose of one's own life to be properly guaranteed in Ukraine as well, we have developed on the basis of our research and proposed an algorithm of actions that can be used in the implementation of the institute of assisted suicide in Ukraine. We emphasize the need to amend the Constitution of Ukraine or change the position of the Constitutional Court on the interpretation of the right to life and the development of an appropriate legal framework that should take into account the medical side of this issue.

scholarly journals Sovereignty in a Federal State: Theoretical and Legal Bases and Practice of Implementation in Russia

2020 ◽  
pp. 13-26
Author(s):  
Andrei V. Bezrukov ◽  
Andrey A. Kondrashev
Keyword(s):  
Russian Federation ◽  
Armed Forces ◽  
Fundamental Principle ◽  
The State ◽  
State Sovereignty ◽  
Federal State ◽  
Constitutional Court ◽  
Potential Threat ◽  
The Russian Federation ◽  
The Right

The article raises the issue of state sovereignty in a federal state and reveals its legal nature. The authors draw attention to the diversity of approaches to the concept and essence of sovereignty, reveal its correlation with related categories, describe the concepts of unity and divisibility of state sovereignty. The paper proves that sovereignty is not a quantitative, but a qualitative characteristic of a state, which is either present or not. The authors substantiate the exclusive possession of state sovereignty by the Russian Federation. Based on the analysis of the doctrinal, regulatory sources and the practice of the Constitutional Court of the Russian Federation, the authors show that the Russian constitutional model explicitly outlines the principle of solid and indivisible state sovereignty spreading throughout the whole territory of the Russian Federation. Recognition of the principle of state sovereignty of Russia presupposes a clear definition of the scope of rights that the Federation should possess in order for its sovereignty to be ensured. The article examines the main features of the state sovereignty of Russia enshrined in the Constitution of the Russian Federation, among which are the supremacy of federal law over the law of the subjects of the Federation, the inviolability of borders and territorial integrity, the unity of the economic space, fiscal, banking and monetary systems, common army (Armed Forces), the right of the state to protect its sovereignty and rights of citizens. Despite the unequivocal decision on the integrity of state sovereignty of the Russian Federation expressed the Constitution of the Russian Federation and by the Constitutional Court of the Russian Federation, this fundamental principle is not completely ensured since the idea of the sovereignty of the republics as components of Russia continues to retain its potential threat to Russian federalism, taking into account the provisions of Art. 73 of the Constitution of the Russian Federation that provide for the full state power of the constituent entities of the Russian Federation

An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

2016 ◽  
Vol 17 (3) ◽  
pp. 451-485 ◽  
Author(s):  
Sabrina Ragone ◽  
Valentina Volpe
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Same Sex Couples ◽  
European Court ◽  
National Perspective ◽  
The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

scholarly journals Dayton and post-Dayton concept of the administrative power in Bosnia and Herzegovina: Twenty five years after Dayton Peace Agreement

2020 ◽  
Vol 10 (20) ◽  
pp. 81-93
Author(s):  
Nevenko Vranješ
Keyword(s):  
Bosnia And Herzegovina ◽  
State Level ◽  
Basic Research ◽  
Legal Framework ◽  
Executive Branch ◽  
The State ◽  
Administrative Authority ◽  
Peace Agreement ◽  
Administrative Power ◽  
Dayton Peace Agreement

The Dayton Peace Agreement of 1995 established today's Bosnia and Herzegovina as a multiple, complex, specific, and unique state with international legal subjectivity with regard to state law, constitutional law, and administrative law. As a result, the form of socio-political order such as it exists in Bosnia and Herzegovina is unknown in modern political systems. From the initial minimum competences granted to state-level institutions as regulated by the Dayton Constitution, there have been, over the course of twenty-five years, significant amendments made in this respect. With the intervention of the Office of the High Representative (OHR) into the constitutional and legal framework, and, to a lesser extent, by consensual transfer of jurisdiction from the entity level to the state level, administrative capacities of Bosnia and Herzegovina have been strengthened in organisational and functional terms, thus significantly derogating the respective administrative authority of the entities of the Republic of Srpska and the Federation of Bosnia and Herzegovina. This is accompanied by strong hyperinflation of the administrative bodies and organisations at the state level, mostly of unstable legitimacy, which, along with the existence of administrative structures at the remaining thirteen levels of government, classifies the post-Dayton Bosnia and Herzegovina as a complex, segmented, and dysfunctional state. The subject of this paper is an analysis of the Dayton and post-Dayton conceptions of the administrative power of Bosnia and Herzegovina twenty five years since its establishment. The paper, using methods of qualitative analysis of legal acts, legal exegesis, as well as comparative and axiological methods, and relying on the theories and conceptions of the distribution of competences in a complex state, seeks to present the Dayton and post-Dayton conceptions of the administrative power in Bosnia and Herzegovina from a twenty-five year distance. The basic research hypothesis is that states with complex organisational structure, such as Bosnia and Herzegovina, require decentralised organisational and material structures in the executive branch both from the aspect of functionality and economy and the aspect of their sustainability.

scholarly journals THIRD PARTIAL DECISION OF THE CONSTITUTIONAL COURT OF B&H ABOUT CONSTITUTIONALITY OF PEOPLES IN BOSNIA AND HERZEGOVINA

2013 ◽  
Vol 3 (3) ◽  
pp. 29-35
Author(s):  
Edin Djedović ◽  
Keyword(s):  
Bosnia And Herzegovina ◽  
State Government ◽  
State Level ◽  
Comparative Law ◽  
The State ◽  
The Political ◽  
Constitutional Court ◽  
Constitutional Order ◽  
Political Sphere ◽  
The Third

Constitutionality of the peoples is one of the most frequent terms used in the post - Dayton era of B&H state functioning. The specificity of the existence of constituent binds to B&H and its complex constitutional organization, because the comparative law knows no such terminology. In the political sphere it was first mentioned in the process of dissolution of Yugoslavia, and in the constitutional order of B&H enters through the Constitution of the FB&H, and Constitution of B&H. Following the adoption of the Constitution set the important question of the importance of constituent peoples in terms of whether it is a collective right to a certain cooperation or equal to the concept of sovereignty, and that it applies only to representation in state government at the state level and throughout Bosnia and Herzegovina. This is driven by the various discussions which are usually given to political connotations. The best answer to such questions is given by the Constitutional Court through the third partial Decision on Constituent Peoples, through which prism we look the meaning of the constituent peoples in B&H.

The Role of Constitutional Courts in Promoting Healthcare Equity: Lessons from Hungary

2020 ◽  
Vol 6 (2) ◽  
pp. 282
Author(s):  
Mária Éva Földes
Keyword(s):  
Right To Health ◽  
Constitutional Court ◽  
Healthcare Financing ◽  
Policy Decisions ◽  
Healthcare Provision ◽  
Constitutional Courts ◽  
Economic Rights ◽  
Equity Policy ◽  
The Right

This paper explores whether constitutional litigation contributes to sustaining the equity element of the right to health. Equity entails a fair distribution of the burden of healthcare financing across the different socio-economic groups of the population. A shift towards uncontrolled private healthcare provision and financing raises equity challenges by disproportionately benefitting those who are able to afford such services. The extent to which equity is enforced is an indicator of the strength of the right to health. However, do domestic constitutional courts second-guess, based on equity, policy decisions that impact on healthcare financing? Is it the task of constitutional courts to scrutinize such policy decisions? Under what conditions are courts more likely to do so? The paper addresses these questions by focusing on the case of Hungary, where the right to health has been present in the Fundamental Law adopted in 2010 and the Constitutions preceding it. While the Hungarian Constitutional Court has been traditionally cautious to review policy decisions pertaining to healthcare financing, the system has been struggling with equity issues and successive government coalitions have had limited success in tackling these. The paper discusses the role of constitutional litigation in addressing such equity concerns. In doing so, it contributes to the discussion on the role of domestic constitutional courts in the protection of social and economic rights.

scholarly journals Rola szczebla federalnego i stanowego w kształtowaniu amerykańskiej polityki handlowej po przyjęciu Narodowej Inicjatywy Eksportowej

2020 ◽  
Vol 2020 (55) ◽  
pp. 440-475
Author(s):  
Barbara Regulska-Ingielewicz
Keyword(s):  
Trade Policy ◽  
State Level ◽  
Basic Research ◽  
The United States ◽  
Legal Framework ◽  
The State ◽  
Role Of The State ◽  
The Us ◽  
Practical Dimension

The purpose of the article is to analyze the role of the federal and state level institutions in shaping and implementing American trade policy, as well as to verify the assumptions of the National Export Initiative implemented in 2010 by the Barack Obama administration which intended to activate state level institutions in the area of trade. The goal of the article is to answer two basic research questions: What is the role of the federal and state level institutions in shaping and implementing trade policy in the United States? Has the role of the state level increased in the decision-making process and the implementation of trade policy after the adoption of the National Export Initiative in 2010? Answers to the above questions will allow verification of the adopted hypothesis, which indicates that, despite its assumptions, the National Export Initiative has not increased the role of the state level institutions in shaping and implementing trade policy. To conduct a reliable analysis, the following article structure was adopted. The first part presents the general methodological and analytical assumption. The second discusses the institutional and legal framework that shapes the distribution of competences in the US system, paying particular attention to trade policy issues. Part three analyzes the state level activities in a practical dimension after the adoption of the National Export Initiative. The summary of the article will contain conclusions in the form of answers to the questions posed, which will allow to verify the hypothesis.

scholarly journals The International Right To Highest Attainable Standard Of Physical And Mental Health: Evaluating Obligations Of Lithuania In Cases Of Violence Against Women

2016 ◽  
Vol 12 (23) ◽  
pp. 34
Author(s):  
Laima Vaige
Keyword(s):  
Mental Health ◽  
Domestic Violence ◽  
Human Rights ◽  
Violence Against Women ◽  
Legal Framework ◽  
Right To Health ◽  
The State ◽  
Physical And Mental Health ◽  
The Right

The paper explores the role of the international right to the highest attainable standard of physical and mental health in the development of the legal framework in Lithuania to address violence against women. The right to the highest attainable standard of physical and mental health is entrenched under various international legal instruments. These have been ratified by Lithuania which, in 2011, also adopted a Law for the protection against domestic violence. Violence against women, including domestic violence, is undoubtedly a violation of the right to health; therefore the Lithuanian context provides an opportunity to evaluate the duties of the state in this regard more precisely. Indicators on human rights measurement have been instrumental in this evaluation.

ANALISIS YURIDIS PUTUSAN PENGADILAN NEGERI BLORA TENTANG DUALISME KEPENGURUSAN YAYASAN PENDIDIKAN ISLAM KARTAYUDA YANG AKTA PENDIRIANNYA DIBUAT OLEH DAN DIHADAPAN NOTARIS (Studi Kasus Putusan Perkara PN Blora No. 34/Pdt.G/2015/PN.Bla)

Jurnal Akta ◽  
2017 ◽  
Vol 4 (3) ◽  
pp. 463
Author(s):  
Muslim Ansori ◽  
Akhmad Khisni
Keyword(s):  
Private Schools ◽  
Education System ◽  
Crucial Role ◽  
The State ◽  
Educational Institutions ◽  
Legal Entity ◽  
Non Profit ◽  
The Right

With the enactment of the Education System Act no 20 of 2003 (better known as the Sisdiknas Act), the State has determined that educational institutions should have a legal umbrella in the form of a legal entity, or better known as the Legal Entity Education. As a non-profit organization, the Foundation is the right legal entity that becomes a place for educational institutions, especially private schools. Therefore, of course, Notary has a very crucial role in making notary deed in the form of establishment and deed of change, such as example how in making the right basic budget and not multi interpresatasi for stake holders in the foundation. Therefore, the role of function and authority of the organ of the foundation must be clearly stated in the articles of association, so as not to cause a dispute in the future.KEYWORDS: Notaries, Foundation, Organ Foundation,

The Legal Framework for Foundations in the Habsburg Monarchy from 1750 to 1918

2017 ◽  
Vol 1 (2) ◽  
pp. 154-172
Author(s):  
Gabriele Schneider
Keyword(s):  
Public Good ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Habsburg Monarchy ◽  
The Public ◽  
Regulation And Supervision ◽  
Role Of The State ◽  
The Law

Foundations, as permanent funds established by a certain legal act, can serve manifold purposes, but often pursue charitable goals. As such, they play an important role for the public good. Therefore, states always had an interest in fostering foundations by providing a pertinent legal framework. In Austria, this topic has not yet been the focus of scholarship. Through this study some light is shed on the implementation of the law on foundations in the Habsburg Monarchy. It focuses on the role of the state and its legal system regarding the regulation and supervision of foundations from 1750 to 1918. This period is characterized by the sovereigns’ endeavor to regulate the position of foundations via extensive legislation. In particular, a system of oversight for foundations was created in order to guarantee the attainment of their charitable goals. In fact, this system prevailed until the end of the 20thcentury.

Sign in / Sign up

Export Citation Format

Share Document