This paper analyzes the bilateral agreement on the reciprocal protection of minorities that Serbia has signed with Hungary. The provisions of this agreement is examined, with the application of the legal-dogmatic, descriptive and comparative legal methods, and compared with the corresponding provisions in other bilateral agreements that Serbia has signed with neighboring countries, as well as with the provisions on the protection of the rights of persons belonging to national minorities as stated in the Constitution and laws of Serbia. The study pays special attention to the work of the mixed government commission; the state authorities’ measures regarding the implementation of the agreement and the judicial protection. There is the formulation some recommendations through which this legal instrument could become a more effective legal remedy for the protection of national minorities. This analysis seeks an answer to the question of to what extent the bilateral agreement has contributed to the international and domestic legal framework for the legal protection of national minorities in Serbia, and whether it is today mainly a political instrument without particular legal relevance.
{"title":"The Agreement between Serbia and Hungary on the Protection of National Minority Rights –Revision Welcomed","authors":"Katinka Beretka, Tamás Korhecz","doi":"10.1556/2052.2019.00018","DOIUrl":"https://doi.org/10.1556/2052.2019.00018","url":null,"abstract":"This paper analyzes the bilateral agreement on the reciprocal protection of minorities that Serbia has signed with Hungary. The provisions of this agreement is examined, with the application of the legal-dogmatic, descriptive and comparative legal methods, and compared with the corresponding provisions in other bilateral agreements that Serbia has signed with neighboring countries, as well as with the provisions on the protection of the rights of persons belonging to national minorities as stated in the Constitution and laws of Serbia. The study pays special attention to the work of the mixed government commission; the state authorities’ measures regarding the implementation of the agreement and the judicial protection. There is the formulation some recommendations through which this legal instrument could become a more effective legal remedy for the protection of national minorities. This analysis seeks an answer to the question of to what extent the bilateral agreement has contributed to the international and domestic legal framework for the legal protection of national minorities in Serbia, and whether it is today mainly a political instrument without particular legal relevance.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48476514","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For the rule of law-based democratic regimes, at least two types of significant political challenges can be identified:1. Challenges coming from outside of the democratic regime, in the form of movements which, by making use of the constitutionally guaranteed rights and liberties, attempt to destroy the democratic establishment.2. Challenges coming from inside the democratic regime, in the form of authoritarian movements, which are attempting to overcome their political opponents and consolidate their power by the misuse of the institutions found under their control according to the constitutional blueprint.This paper is concerned with the second type of challenges and examines how the power struggle reflects in constitutional adjudication. Focusing on the case law of the Romanian Constitutional Court, it analyzes the trends in the evolution of the Court’s interpretation of constitutional conflict issues. The paper argues that in periods of great political fragmentation and power-struggle, constitutional conflict cases are more present in the Court’s docket and they result in much more disputed decisions, as actors attempt to present political conflicts as judicial ones. The Court itself is getting more drawn into these struggles and gradually loses its ‘independent arbitrator’ stance.
{"title":"Between a Rock and a Hard Place: Constitutional Conflict Cases before The Romanian Constitutional Court","authors":"Csongor Kuti","doi":"10.1556/2052.2019.00017","DOIUrl":"https://doi.org/10.1556/2052.2019.00017","url":null,"abstract":"For the rule of law-based democratic regimes, at least two types of significant political challenges can be identified:1. Challenges coming from outside of the democratic regime, in the form of movements which, by making use of the constitutionally guaranteed rights and liberties, attempt to destroy the democratic establishment.2. Challenges coming from inside the democratic regime, in the form of authoritarian movements, which are attempting to overcome their political opponents and consolidate their power by the misuse of the institutions found under their control according to the constitutional blueprint.This paper is concerned with the second type of challenges and examines how the power struggle reflects in constitutional adjudication. Focusing on the case law of the Romanian Constitutional Court, it analyzes the trends in the evolution of the Court’s interpretation of constitutional conflict issues. The paper argues that in periods of great political fragmentation and power-struggle, constitutional conflict cases are more present in the Court’s docket and they result in much more disputed decisions, as actors attempt to present political conflicts as judicial ones. The Court itself is getting more drawn into these struggles and gradually loses its ‘independent arbitrator’ stance.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42773812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The first attempts of the European Commission and Parliament to invoke Art. 7(1) of the Treaty on European Union against the Polish and Hungarian governments demonstrate the EU’s political willingness to claim its own authority in defending core European values (Art. 2 TEU) in case of state disobedience. However, despite these attempts to integrate the Rule of Law concept into the overall EU’s supervisory machinery, the Commission’s and the Parliament’s submissions indicate a lack of coherency in implementing the principle as a relevant tool to address multiple challenges arising within the EU Member States legal systems. The parallel developments in the CJEUs case-law (LM/ML, Torubarov) support this statement. Regardless of the Council’s yes/ no decisions in the Polish and Hungarian cases, these lines of reasoning are capable of giving rise to further questions in application of the European Arrest Warrant Framework decision or the Asylum Procedures Directive, in particular the EU Member States which remain within the scope of the EU’s attention in view of systemic Human Rights violations (Italy, Romania, Bulgaria, Croatia). Moreover, the series of the CJEU’s judgements on the Polish judicial reform are capable of paving the way to the de facto intervention into traditional areas of the EU Member States competence – the organisation of the national judicial systems, in light of the development of a EU-specific principle of effective judicial review.
{"title":"Rule of Law vs. Poland and Hungary – an Inconsistent Approach?","authors":"N. Daminova","doi":"10.1556/2052.2019.00015","DOIUrl":"https://doi.org/10.1556/2052.2019.00015","url":null,"abstract":"The first attempts of the European Commission and Parliament to invoke Art. 7(1) of the Treaty on European Union against the Polish and Hungarian governments demonstrate the EU’s political willingness to claim its own authority in defending core European values (Art. 2 TEU) in case of state disobedience. However, despite these attempts to integrate the Rule of Law concept into the overall EU’s supervisory machinery, the Commission’s and the Parliament’s submissions indicate a lack of coherency in implementing the principle as a relevant tool to address multiple challenges arising within the EU Member States legal systems. The parallel developments in the CJEUs case-law (LM/ML, Torubarov) support this statement. Regardless of the Council’s yes/ no decisions in the Polish and Hungarian cases, these lines of reasoning are capable of giving rise to further questions in application of the European Arrest Warrant Framework decision or the Asylum Procedures Directive, in particular the EU Member States which remain within the scope of the EU’s attention in view of systemic Human Rights violations (Italy, Romania, Bulgaria, Croatia). Moreover, the series of the CJEU’s judgements on the Polish judicial reform are capable of paving the way to the de facto intervention into traditional areas of the EU Member States competence – the organisation of the national judicial systems, in light of the development of a EU-specific principle of effective judicial review.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45081851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-01DOI: 10.5553/hyiel/266627012020008001015
János Martonyi
The successful continuation of the European integration process depends, to a large extent, on the restoring the equilibrium among the various dimensions, such as the economic, the political and the cultural dimension of the process. This rebalancing should primarily focus upon the upgrading of the relatively neglected cultural area of the European construction. The qualitative upgrading of the cultural dimension must be based upon the strengthening of the European identity, which itself is an indispensable precondition of the development of a stronger Europe. Law is not only the main instrument of the economic, political and institutional integration but also a core element of European identity based upon Roman law and on the legacy of European history. Rule of law is universal and it has to be respected on all levels, international, European and national. The traditional strict, ‘kelsenian’ hierarchy of legal norms has been substantially loosened but not exclusively due to the emergence of European law. The geometric order of legal norms has become heterarchic and the neat ranking of the different levels as well as the absolute primacy based upon that ranking has been questioned. This refers equally to the relationship between international law and European law and between European law and the national laws of the Member States. Both the principle of the autonomy of European law and the constitutional identity of the Member States aim at protecting the core principles of the European, respectively, the laws of the Member States. The rule of law does not presuppose a neat hierarchy of legal norms. However, it requires an orderly structure, where the precise area covered by the core principles taking precedence over the rules of international or of European law are defined in a clear and foreseeable manner. While a perfect order can never be established, legal certainty and ultimately rule of law, a core element of European identity, could be substantially strengthened by mutual empathy and understanding as well as by continuous and effective dialogue, consultation and concertation between the various levels of rule making and, in particular, of judiciaries.
{"title":"Law and Identity in the European Integration","authors":"János Martonyi","doi":"10.5553/hyiel/266627012020008001015","DOIUrl":"https://doi.org/10.5553/hyiel/266627012020008001015","url":null,"abstract":"The successful continuation of the European integration process depends, to a large extent, on the restoring the equilibrium among the various dimensions, such as the economic, the political and the cultural dimension of the process. This rebalancing should primarily focus upon the upgrading of the relatively neglected cultural area of the European construction. The qualitative upgrading of the cultural dimension must be based upon the strengthening of the European identity, which itself is an indispensable precondition of the development of a stronger Europe. Law is not only the main instrument of the economic, political and institutional integration but also a core element of European identity based upon Roman law and on the legacy of European history. Rule of law is universal and it has to be respected on all levels, international, European and national. The traditional strict, ‘kelsenian’ hierarchy of legal norms has been substantially loosened but not exclusively due to the emergence of European law. The geometric order of legal norms has become heterarchic and the neat ranking of the different levels as well as the absolute primacy based upon that ranking has been questioned. This refers equally to the relationship between international law and European law and between European law and the national laws of the Member States. Both the principle of the autonomy of European law and the constitutional identity of the Member States aim at protecting the core principles of the European, respectively, the laws of the Member States. The rule of law does not presuppose a neat hierarchy of legal norms. However, it requires an orderly structure, where the precise area covered by the core principles taking precedence over the rules of international or of European law are defined in a clear and foreseeable manner. While a perfect order can never be established, legal certainty and ultimately rule of law, a core element of European identity, could be substantially strengthened by mutual empathy and understanding as well as by continuous and effective dialogue, consultation and concertation between the various levels of rule making and, in particular, of judiciaries.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42665035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article analyses various stages of the subsequent development of the international cooperation and of Ukrainian legislation aimed at facing the consequences of the explosion at Chernobyl nuclear power plant, on April 26, 1986. It is aimed to assess the impact of Chernobyl accident on law and policies in the field of environmental protection. The reaction to the Chernobyl accident gave in fact a boost to the evolution of international treaty law in various sectors (nuclear safety, emergency preparedness and response, environmental law) and, according to the Authors, contributed to the assertion in general international law of the right to environmental information.More than a thousand legal acts have been adopted in the Ukraine aimed at determining the safe management of the territories affected by Chernobyl accident. Notwithstanding the resulting nuclear contamination from Chernobyl accident still is a priority environmental problem. In this context, the Authors highlight the exceptional interest of the prospect opened by the Presidential Decrees of 2018 and 2019 on the rehabilitation of the territories affected by radioactive contamination. They represent a further important step towards the effective establishment of a biosphere reserve, in the perspective of the creation of a transboundary protected area with Belarus.
{"title":"Chernobyl − Experience and Perspectives of International Cooperation and Environmental Protection","authors":"G. Tamburelli, T. Kovalenko","doi":"10.1556/2052.2019.00012","DOIUrl":"https://doi.org/10.1556/2052.2019.00012","url":null,"abstract":"The article analyses various stages of the subsequent development of the international cooperation and of Ukrainian legislation aimed at facing the consequences of the explosion at Chernobyl nuclear power plant, on April 26, 1986. It is aimed to assess the impact of Chernobyl accident on law and policies in the field of environmental protection. The reaction to the Chernobyl accident gave in fact a boost to the evolution of international treaty law in various sectors (nuclear safety, emergency preparedness and response, environmental law) and, according to the Authors, contributed to the assertion in general international law of the right to environmental information.More than a thousand legal acts have been adopted in the Ukraine aimed at determining the safe management of the territories affected by Chernobyl accident. Notwithstanding the resulting nuclear contamination from Chernobyl accident still is a priority environmental problem. In this context, the Authors highlight the exceptional interest of the prospect opened by the Presidential Decrees of 2018 and 2019 on the rehabilitation of the territories affected by radioactive contamination. They represent a further important step towards the effective establishment of a biosphere reserve, in the perspective of the creation of a transboundary protected area with Belarus.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47113768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The aim of the paper is to introduce and analyse the binary code of the main principle applied in legal assistance procedures in international criminal matters – the locus regit actum and the forum regit actum sub-principles are characterized by different dynamics and have different legal consequences. While locus regit actum requires the application of the procedural rules of the state that has been addressed with the legal assistance request, the forum regit actum principle asks for application of the requesting state’s rules on the given procedure. The result of the legal assistance procedure is the evidence assumed to be used in the criminal procedure to be carried out in the requesting state. The different concepts have very distinguished consequences in the scope of admissibility of the evidence and regarding the legal remedies against obtaining the evidence. Within the European Union, the related developments show a double paradigm shift in this regard – the initial followed locus regit actum was abandoned in 2000 in favour of the forum regit actum, but then in 2017, the member states of the EU opted once again for locus regit actum with the new regime of the European Investigation Order. Finally, the paper highlights the main issues of the concept of the free movement of evidence and shares in addition to positive evaluation, criticism on the subject as well.
{"title":"Locus/Forum Regit Actum – a Dual Principle in Transnational Criminal Matters","authors":"K. Karsai","doi":"10.1556/2052.2019.00010","DOIUrl":"https://doi.org/10.1556/2052.2019.00010","url":null,"abstract":"The aim of the paper is to introduce and analyse the binary code of the main principle applied in legal assistance procedures in international criminal matters – the locus regit actum and the forum regit actum sub-principles are characterized by different dynamics and have different legal consequences. While locus regit actum requires the application of the procedural rules of the state that has been addressed with the legal assistance request, the forum regit actum principle asks for application of the requesting state’s rules on the given procedure. The result of the legal assistance procedure is the evidence assumed to be used in the criminal procedure to be carried out in the requesting state. The different concepts have very distinguished consequences in the scope of admissibility of the evidence and regarding the legal remedies against obtaining the evidence. Within the European Union, the related developments show a double paradigm shift in this regard – the initial followed locus regit actum was abandoned in 2000 in favour of the forum regit actum, but then in 2017, the member states of the EU opted once again for locus regit actum with the new regime of the European Investigation Order. Finally, the paper highlights the main issues of the concept of the free movement of evidence and shares in addition to positive evaluation, criticism on the subject as well.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43678560","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Following World War II, a series of Conferences were held among the great powers. Hungary, along with its neighboring countries, had to join the socialist bloc and transformed itself into a socialist system. The Communist Party adopted the communist Constitution as soon as they won the parliamentary election. In the Far East, the Chinese Communist Party also promulgated its Constitution after the first election of the National People’s Republic. In this article, the author will firstly examine how the Constitution adopted between China and Hungary followed by a comparative analysis of the two Constitutions will be employed. The author will give special attention on the text and structure of the Constitution in the respective countries. In the end, the relations with Soviet Union between China and Hungary influenced the two Constitutions will be considered.
{"title":"The First Written Communist Constitutions in China and Hungary and the Influence of the 1936 Soviet Constitution: A Comparative Perspective","authors":"D. Lu","doi":"10.1556/2052.2019.00013","DOIUrl":"https://doi.org/10.1556/2052.2019.00013","url":null,"abstract":"Following World War II, a series of Conferences were held among the great powers. Hungary, along with its neighboring countries, had to join the socialist bloc and transformed itself into a socialist system. The Communist Party adopted the communist Constitution as soon as they won the parliamentary election. In the Far East, the Chinese Communist Party also promulgated its Constitution after the first election of the National People’s Republic. In this article, the author will firstly examine how the Constitution adopted between China and Hungary followed by a comparative analysis of the two Constitutions will be employed. The author will give special attention on the text and structure of the Constitution in the respective countries. In the end, the relations with Soviet Union between China and Hungary influenced the two Constitutions will be considered.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45588071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The centenary celebration of the International Labour Organisation (ILO) is an ideal occasion to look at its current position, possibilities and challenges from the perspective of its long-lasting relation with the EU. This paper looks at the current state of affairs and how it has been achieved. It looks at the history of good cooperation of ILO and EU from the legal point of view highlighting some moments, when the ILO law has been ahead in social protection of workers, whilst showing that currently the EU is taking the lead in many fields. By commenting on recent basic documents of both the EU and ILO, the conclusion can be made that the solid and real interaction between both ‘legal systems’ can significantly contribute to more solidarity and decent work around the world.
{"title":"The International Labour Organisation and the EU – Old Friends with New Goals","authors":"Kristina Koldinská","doi":"10.1556/2052.2019.00011","DOIUrl":"https://doi.org/10.1556/2052.2019.00011","url":null,"abstract":"The centenary celebration of the International Labour Organisation (ILO) is an ideal occasion to look at its current position, possibilities and challenges from the perspective of its long-lasting relation with the EU. This paper looks at the current state of affairs and how it has been achieved. It looks at the history of good cooperation of ILO and EU from the legal point of view highlighting some moments, when the ILO law has been ahead in social protection of workers, whilst showing that currently the EU is taking the lead in many fields. By commenting on recent basic documents of both the EU and ILO, the conclusion can be made that the solid and real interaction between both ‘legal systems’ can significantly contribute to more solidarity and decent work around the world.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45383698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
According to the generally accepted understanding, judicial activism arises when a court behaves improperly, straying beyond the limits of the judicial function and acting like a legislature.It is convincing that in the great majority of the cases the Court of Justice of the European Union fulfils the roles assigned to it by the founding treaties of the European Union without any excess, but there are decisions which may be characterized as activist, be they necessary or useful for the proper functioning of the European legal system, and there are decisions (refusing or avoiding to decide) which may be qualified as manifestations of judicial passivism.Judicial passivism is defined in the narrow sense of the term, i.e., when the court clearly refuses or avoids to decide the case before it, or does not answer the question legitimately referred to it. In the jurisprudence of the CJEU, such cases arise when the Court systematically waits for the withdrawal of the action, exceeds the reasonable time of the proceedings, or does not answer the question raised in the preliminary ruling procedure by the national court. The inadmissibility of questions referred by national courts may be perceived as passivism when the qualification of ‘not a court or tribunal’ in the sense of Article 267 TFEU is questionable, or when the scope of the EU Charter of Fundamental Rights is defined too narrowly. Cases may arise – at least in theory – in which the Court, while it would be in a position to act, defers the question to the EU or the Member State’s legislator or to the national judge to decide, with the not entirely convincing qualification of the act under scrutiny in annulment proceedings as ‘not an act for the Article 263 TFEU’. The label ‘judicial passivism in a broad sense of the term’ is used when the Court sticks to its position in a questionable manner (conservatism as passivism), steps back from its earlier position, narrowing the scope of EU law expressly or implicitly overruling its former decision, or it introduces new conditions with the same result (retreat).It has been demonstrated that the Court systematically opposed the Member States, the Commission and the parties in the main proceedings, arguing in favour of inadmissibility of referrals for preliminary questions − the Court avoided, in a large number of cases, the temptation of judicial passivism. On the other hand, the Court’s increased rigour in the preliminary ruling procedures is detectable in recent years. The Court took a less benevolent approach towards the qualification of the referring body as ‘court or tribunal’; the questions proved to be ‘hypothetical’ more often than before, and more importantly, the lack of sufficient information regarding the factual and regulatory context led more easily to inadmissibility.The driving forces behind the passivism of the Courts of the European Union are the ‘reasonableness’ of the judiciary in a time of crisis of the European integration, self-defen
{"title":"Judicial Passivism at the European Court of Justice?","authors":"Ernő Várnay","doi":"10.1556/2052.2019.00009","DOIUrl":"https://doi.org/10.1556/2052.2019.00009","url":null,"abstract":"According to the generally accepted understanding, judicial activism arises when a court behaves improperly, straying beyond the limits of the judicial function and acting like a legislature.It is convincing that in the great majority of the cases the Court of Justice of the European Union fulfils the roles assigned to it by the founding treaties of the European Union without any excess, but there are decisions which may be characterized as activist, be they necessary or useful for the proper functioning of the European legal system, and there are decisions (refusing or avoiding to decide) which may be qualified as manifestations of judicial passivism.Judicial passivism is defined in the narrow sense of the term, i.e., when the court clearly refuses or avoids to decide the case before it, or does not answer the question legitimately referred to it. In the jurisprudence of the CJEU, such cases arise when the Court systematically waits for the withdrawal of the action, exceeds the reasonable time of the proceedings, or does not answer the question raised in the preliminary ruling procedure by the national court. The inadmissibility of questions referred by national courts may be perceived as passivism when the qualification of ‘not a court or tribunal’ in the sense of Article 267 TFEU is questionable, or when the scope of the EU Charter of Fundamental Rights is defined too narrowly. Cases may arise – at least in theory – in which the Court, while it would be in a position to act, defers the question to the EU or the Member State’s legislator or to the national judge to decide, with the not entirely convincing qualification of the act under scrutiny in annulment proceedings as ‘not an act for the Article 263 TFEU’. The label ‘judicial passivism in a broad sense of the term’ is used when the Court sticks to its position in a questionable manner (conservatism as passivism), steps back from its earlier position, narrowing the scope of EU law expressly or implicitly overruling its former decision, or it introduces new conditions with the same result (retreat).It has been demonstrated that the Court systematically opposed the Member States, the Commission and the parties in the main proceedings, arguing in favour of inadmissibility of referrals for preliminary questions − the Court avoided, in a large number of cases, the temptation of judicial passivism. On the other hand, the Court’s increased rigour in the preliminary ruling procedures is detectable in recent years. The Court took a less benevolent approach towards the qualification of the referring body as ‘court or tribunal’; the questions proved to be ‘hypothetical’ more often than before, and more importantly, the lack of sufficient information regarding the factual and regulatory context led more easily to inadmissibility.The driving forces behind the passivism of the Courts of the European Union are the ‘reasonableness’ of the judiciary in a time of crisis of the European integration, self-defen","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47267709","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper suggests that the crime of terrorism requires the establishment of an international organ to prosecute the perpetrators of the crime and there is a need to enable the prosecution of the crime of terrorism as a specific new type of international crime. In advancing this thesis, the paper is divided into three parts. The first part briefly defines the notion of terrorism, while the second discusses the international legal instruments and practices when it comes to prosecution of the crime of terrorism. It starts with the first failed attempts to define and prosecute the crime of terrorism. Next, it discusses the jurisdiction of different international courts and tribunals over the crime of terrorism. The third part presents the specific case of the Polish domestic legislation regulating the crime of terrorism in order to demonstrate that States which so far have not been affected in a major way by terrorism may have little experience in creating comprehensive legislation, yet they still may have to deal with perpetrators of the crime. This is why both a comprehensive legal instrument and an international organ with jurisdiction over the crime of terrorism are necessary.
{"title":"Why There Is a Need for an International Organ to Try the Crime of Terrorism - Past Experiences and Future Opportunities","authors":"Agata Kleczkowska","doi":"10.1556/2052.2019.60104","DOIUrl":"https://doi.org/10.1556/2052.2019.60104","url":null,"abstract":"\u0000 This paper suggests that the crime of terrorism requires the establishment of an international organ to prosecute the perpetrators of the crime and there is a need to enable the prosecution of the crime of terrorism as a specific new type of international crime. In advancing this thesis, the paper is divided into three parts. The first part briefly defines the notion of terrorism, while the second discusses the international legal instruments and practices when it comes to prosecution of the crime of terrorism. It starts with the first failed attempts to define and prosecute the crime of terrorism. Next, it discusses the jurisdiction of different international courts and tribunals over the crime of terrorism. The third part presents the specific case of the Polish domestic legislation regulating the crime of terrorism in order to demonstrate that States which so far have not been affected in a major way by terrorism may have little experience in creating comprehensive legislation, yet they still may have to deal with perpetrators of the crime. This is why both a comprehensive legal instrument and an international organ with jurisdiction over the crime of terrorism are necessary.","PeriodicalId":37649,"journal":{"name":"Hungarian Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44942258","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：