REGULATION OF LOCAL REFERENDUM RELATIONS – A PRECONDITION FOR FURTHER IMPLEMENTATION OF THE DECENTRALIZATION REFORM

The article analyzes the prospects for the legal regulation of relations the organization and conduct of a local referendum in Ukraine. The relevance of the topic is due to a number of reasons: a local referendum is indeed one of the effective tools through which a territorial community can exercise its power directly. Therefore, this right is declared not only in the text of the Constitution of Ukraine. A number of special laws indicate that certain decisions can be made at a local referendum. However, the legal uncertainty that arose after the termination of the law of Ukraine “On All-Ukrainian and Local Referendums” and the recognition of the Law of Ukraine as unconstitutional by which the aforementioned Law was terminated, has not yet been eliminated in Ukraine. So the main attention in the article is directed to the analysis of the draft law “On local referendum” (register № 5512), submitted to the parliament on May 19, 2021 and sent on October 30, 2021 to The Venice Commission. The purpose of the article is to investigate the compliance of the content of the above-mentioned draft law with the Constitution of Ukraine and European standards embodied in acts of international organizations, of which our state is a member. In general, having positively assessed the content of the above draft law, the article substantiates the advisability of introducing a number of amendments into it due to Resolution 472 (2021) and Recommendation 459 (2021) “Conducting referenda at the local level”, adopted on May 18, 2021 by the Congress of Local and Regional Authorities, and the decision of the European Court of Human Rights of October 21, 2021 in the case “Seligenenko and others v. Ukraine”. It is proposed: to allow to participate in the local referendum not only those citizens of Ukraine who registered their place of residence on the territory of the corresponding territorial community, but also those who registered their place of residence there and are taxpayers for at least six consecutive months; introduce the possibility of using electronic services when voting at a local referendum; to remove the norm that makes it impossible to simultaneously hold elections and a local referendum, and we also propose to determine the subject of the appointment of a local referendum not to the territorial commission from the local referendum, but to the village, settlement, mayor, chairman of the district, regional, district council in the city.

Legal Certainty

Legal certainty is considered in the paper not only as one of the general principles of law and one of the requirements of the Rule of Law, but also as a fundamental feature and condition of the significance of law and its instrumental value in general. In this regard, the definitions of the Rule of Law conception and the lists of its components proposed by Western philosophers and theorists of law and by the Venice Commission are analyzed. Elements of the principle of legal certainty such as legislation and case law accessibility, legal acts’ predictability, principles of case law unity, legitimate expectations, res judicata, the European concept of autonomous interpretation and the American doctrine of uncertainty of law are covered. By analyzing and synthesizing theoretical concepts of the principle of legal certainty, the practice of its interpretation and application by European and national courts, the connections between it and other general principles of law (in particular – principles of legality and reasonableness), this principle plays a key role in the Rule of Law implementation in the national legal system.

Venice Commission: the role in the process of international and national law interpretation

The article aims to study the Venice Commission's role as one of the leading international law interpreters. This role has gradually strengthened in the process of scientifically substantiated promotion of legal norms and standards concerning democracy, human rights, and the rule of law. Using system-structural, formal-legal, comparative-legal, empirical, and anthropological methods, one has drawn essential conclusions regarding implementing the Venice Commission's interpretive activities. As a result, it has been proved that the nature of the Venice Commission's interpretive activity demonstrates the existence and growing contradiction between the prevailing interpretive practice at the supranational level and the provisions of the classical theory of law interpretation. Ukraine's ongoing dialogue with the Venice Commission is vital to develop and improve legislation, especially laws, implementing new constitutional provisions on justice, the drafts of which have already been designed or are being developed, as well as indubitable compliance with these laws. Venice Commission's general documents should be for the Ukrainian legislator the source to base the preparation of relevant legislation.

Referendum on the Constitution dated November 6, 1994 in Albania (The associated political debate and reasons for its failure)

The constitutional reform is one of the most debatable reforms in the Albanian transition period. One of the most critical moments is the Referendum on the Constitution dated November 6th, 1994. The way how this process took place, helps us to understand more about the nature and the dynamics of the Albanian events during the transitional period. The purpose of this descriptive - analytic study is to describe, analyze and evaluate the Referendum on the Constitution dated November 6th, 1994, in legal, procedural and political aspect as well as its effects on political life in Albania. To meet this objective, we will be delivering an analysis of all events and decisions that took place before, during and after the Referendum on the Constitution, concentrating on the procedures that followed, debates associated to the process, political and institutional attitudes, electoral campaigns, attitudes of political parties towards the content of the draft constitution, reasons of the popular “NO” to the referendum and its consequences. The study relies on official documents of Albanian and foreign institutions (such as OSCE, Venice Commission), the press (newspapers like “Zëri i Popullit”, “Rilindja Demokratike”, “Koha Jonë”) publications from domestic and foreign scholars and memories of the protagonists. At the end, it was concluded that the lack of political consensus and the willingness of political forces to come to an agreement with each other, made the attempt to give the country a constitution failed. The result of the referendum affected the political life in the country by increasing conflicts and political intolerance among the parties. There were problems within the Democratic Party and the governing coalition too.

The Council of Europe’s Responses to the Decay of the Rule of Law and Human Rights Protections: A Comparative Appraisal

This article introduces the Special Issue on ‘The Responses of the Council of Europe to the Decay of the Rule of Law and Human Rights Protections’. The Council of Europe (CoE), a unique international organisation with its commitment to protect and promote human rights, the rule of law, and democracy, has been severely tested by the spread and consolidation of trends posing systemic threats to its foundational goals. The authors of this Special Issue assess how the European Court of Human Rights, the Venice Commission, the Parliamentary Assembly, the Committee of Ministers, and the office of the Secretary General have addressed systemic threats to the foundational principles of the organisation in the last decade. The Special Issue finds that the respective legal-institutional features and capacities of the CoE organs as well as the constraining influence of the broader political context in Europe on them vary significantly, hampering the CoE’s ability to produce timely, consistent, and co-ordinated responses against systemic threats.

The Role of the Venice Commission in Protection of the Right to Assemble

Celem niniejszego opracowania jest zaznajomienie polskich czytelników z doktryną Komisji Weneckiej w sprawie prawa do zgromadzeń. Taka wiedza wydaje się być przydatna nie tylko legislatorom i konstytucjonalistom, czy osobom naukowo zajmującym się tę tematyką, ale także każdemu obywatelowi,który jest zainteresowany tę formą aktywnego udziału w życiu publicznym. Szczególna uwaga została zwrócona na problematykę zgromadzeń o charakterze spontanicznym, gdyż ich sytuacja prawna jest nie do końca jednoznacznie określona w polskim systemie.

The Venice Commission and Rule of Law Backsliding in Turkey, Poland and Hungary

How did the Council of Europe cope with its member states that engaged in rule of law backsliding? This article analyses the responses of the Venice Commission, the Council of Europe’s expert body on constitutional matters, to Turkey, Hungary, and Poland as their governments eliminated key checks and balances on their power, curtailed judicial independence, and undermined political pluralism and civil society. It finds that the Venice Commission managed to address a set of particularly vital issues that get to the heart to rule of law backsliding in these countries. Despite the breadth of the Venice Commission’s forthright involvement, these case studies display the limitations on the part of other Council of Europe bodies in forming a coordinated approach and response to rule of law backsliding.

The legal nature of soft law acts of the Council of Europe

The article examines the effectiveness of soft law as a regulator of legal relations between the member states of the Council of Europe. Existing approaches to the definition of soft law are analyzed.Author proposes to separate from the traditional conception of international law as a system of universally binding norms developed by states, taking into account postmodern trends in the transformation of national legal systems. Soft law is recognized as a real form of modern international law that has legal consequences. The article appoints the sources that make up the soft law within the legal system of the Council of Europe.The influence of soft law acts of the Council of Europe bodies on the legislation of Ukraine is investigated. Pros-pects for the development of soft law in the research area are determined.The role of “soft law” acts is presented on the example of the acts of the Venice Commission (European Com-mission for Strengthening Democracy through Law) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which are specialized agencies of the Council of Europe.Examples of the impact of soft law acts of the Council of Europe on the national legal systems of the partici-pating countries are analyzed. Their axiological influence on the democratization of national legal systems and the formation of human-centered legal ideology in Europe has been determined. The article determines the orientation of the parliaments and governments of the member states of the Council of Europe on the acts of soft law of its bodies in the legislation. The place of soft law acts of the bodies of the Council of Europe in the system of sources of international and national law is considered through the prism of the sociological school of law.