Suchergebnisse

The Croatian Constitutional Court by its decision of June 24, 1992 partly rejected a reqest to start proceedings, and partly terminated already started proceedings, to determine the constitutionality of some thirty emergency decrees passed by the President of the Croatian Republic during the undeclared war with Serbia and the Yugoslav People's Army in the second half of 1991. The Court backed its decision inter alia by the following arguments: the President has the power to pass emergency decrees without declaring first the state of emergency; presidential emergency decrees can be retroactive since Croatian Constitution does not forbid specifically their retroactivity. The Court's reasoning which endorses a permanent coup d'etat, is very probably a corollary of the idea, which is taken for granted by some Croatian constitutional lawyers, that the Croatian Constitution has been modelled on the Constitution of the French 5th Republic so that the sweeping powers of the French President belong also to his Croatian counterpart. The paper challenges the idea and discusses the relevance of comparative constitutional theory for Croatian constitutional practice. The first three sections demonstrate that, despite political similarities between the early years of the French 5th Republic and the Croatian Republic the two semi-presidential systems differ in several important constitutional and legal respects so that the powers - especially emergency powers - of the French President cannot be used as a persuasive authority to interpret powers of the Croatian President. Section four indicates that if anything in French law is authoritative in interpreting Croatian constitutional provisions on the state of emergency it is the effort of the French Conseil d'etat to control, even though in a very limited way, the legality of presidential emergency decrees. The last section points out that assumptions with which Croatian Constitutional Court interprets presidential powers are more in accord with the Weimar Constitution than with the Constitution of the 5th French Republic. The paper ends with the warning that the unrestrained exercise of presidential powers in Croatia may lead, as it did in Mussolinni's Italy and in the Weimar Republic, to a dictatorship. (SOI : PM: S. 165)

Mixed government, which is commonly regarded as a distinctly medieval form of government, is relevant also to contemporary constitutional states. It is the best form of government, since the aristocratic element is a continuous source of virtue, especially of justice, and a check not only on the executive, as the monarchical element which is the seat of political power, and the legislature, as the democratic element which expresses the will of the majority, but also groups and institutions that have the might and will to impose themselves as oligarchies. Mixed government is also the form of government that is practised by most developed contemporary constitutional states: USA, UK, France, Switzerland, Germany etc. European nobility is the original aristocratic institution, by virtue of the fact that it was a system for the transfer of both virtue and general conditions of life. Three institutions that emerged in the late Middle Ages assumed structures and functions of the nobility. + The first is the clergy. When, as a result of the differentiation of feudal society ethical and intellectual virtues of the nobility could no longer maintain general conditions of life, the clergy, by virtue of their abstract knowledge that ranged from philosophy and theology to law and medicine, became a class of new experts in generalities and thereby a new aristocracy. The second modern aristocratic institution is the judiciary, which has a structure and function similar to earlier aristocracies. The task of judges is to establish the highest virtue o constitutionalism. It is justice by law, which regulates general conditions of life in the state and society. What qualifies judges for the task is expertise in the new generality. The expertise includes not only education and experience in law but also impeccable private life and demonstrated professional ethics. + The third modern aristocratic institution is the profession, whose most important instance is the legal profession. It shares its structure and function partly with the judiciary and partly with other professions. It seems that modern professions are degenerating. In the key area of data processing, due to rapid changes of technology, professions as systems of the transfer of virtue do not even seem to be possible. Professional aristocracies are replaced increasingly by oligarchies of capitalists and technocrats. (SOI : PM: S. 111)

In Croatia, the issue of the legal status of the sources of journalists' formation as well as the status of journalists who publish sensitive information is increasingly gaining prominence. This is a subject which includes elements of constitutional, media, labour, civil, and penal law. The essay is limited to people as information sources. The sources can be divided into internal and external. The rationale for the sources' confidentiality privilege lies in the fact that journalists serve public goals and their sources can find themselves imperilled. According to the author's classification, the risks of this privilege are faced either by the sources (direct or indirect manipulation, smear campaigns, misapprehensions) or by the journalists ("protecting" a fictional source, subsequent blackmail of the source, misapprehensions). In Croatia, the protection of the information sources is defined in Article 12 of the Law on Public Information. The author outlines the major comparative systems of regulation of this field, the examples of antinomies among different Croatian regulations (the principles for their resolution are also offered) and analyses the position of certain types of sources in relation to the Croatian law. And finally, the author compares the regulations of the Croatian law with the comparative systems, analyses the representation of certain forms of responsibility of certain types of subjects and lists the principles he deems most important regarding journalists' work (the necessity of protecting the sources, the responsibility of journalists towards their sources, the different legal statu of journalists and their sources, the protection of privacy, the verification confidentiality, the more dominant interest, the importance of administrative ethics, the familiarity with the regulations, the adequate legal definition of a secret). (SOI : PM: S. 228)

The development of both conventional and written legal rules that were governing the roots of the administration, has run in parallel with the development of the country. The development of legal state was going parallel with the development of constitutional state. The legal state can not be imagined without pandering Administration under the law, but precisely because of it stems judicial control of management, which is necessary for the full realization of the principle of legality and the protection of rights and legal interests of citizens. Administrative action presents a means to protect the rights and interests of citizens, but on the other hand it is also an effective tool for ensuring the legality of administrative operations. Pandering administration under the law is linked to the French Revolution from 1789, in this respect, France is a country that is the first to introduce an administrative dispute. The development of an administrative dispute in France can be followed through the occurrence and development of the State Council, which was formed during Napoleon time in 1799. The legal institutionalization of the administration is not done in the same way everywhere, in that sense we distinguish two big legal systems, Anglo-Saxon and European-continental. In Anglo- Saxon law legal institutionalization of the administration included the procuring administration under the legal norms of general law, management control exercised by courts of general jurisdiction. In the European-continental law legal institutionalization of the administration departs from pandering Administration under the legal standards that belong to a specific branch of law administrative law. In the European- continental system there is a difference between private and public law, and an important part of the legal regime are special administrative courts. The development of an administrative dispute actually juridical control of administration in Serbia can be traced back to the second half of the 19th century. Although Serbia has created very early the State Council following the example of France, in a formal sense the administrative dispute in Serbia was fully introduced by the Constitution from 1869. At our place administrative activities are controlled by the courts, which are an integral part of the judiciary and acting under special rules, rules of administrative law. Depending on the positive law of certain countries, the subject of administrative dispute is defined broadly or narrowly. According to French positive law the subject of administrative dispute may be not only single authoritative legal acts of administration, but also the general acts of administration - implementing regulations issued by the administration, as well as administrative objections. According to French positive law the subject of administrative dispute is defined very broadly, unlike the German and Austrian positive law, where an administrative dispute can not be conducted against all acts of general administration. Regarding that in the comparative law we meet a number of different solutions, we believe that in our country we should choose the one that would be the best way to provide protection for the rights of citizens. We lead the administrative dispute in the first place about the legality of final administrative act against other individual legal acts because of the silence of administration, and it may be decided on the request for the return of items and damages. The results of scientific studies will confirm the importance of the need that the subject of the administrative procedure should be complied with the case of an administrative dispute. All acts adopted in the administrative procedure should have directly open the way so the control of legality can be accomplished in administrative proceedings in front of the competent administrative court. What is certainly a major challenge is a control of the legality of administrative contracts. Extended subject of administrative dispute will strengthen the position of the parties in the administrative procedure, in order to guarantee them the quality of court protection in front of the Administrative Court.

Freedom of expression enjoys a particular protection in the case-law of the European Court of Human Rights. According to the Court, freedom of expression constitutes one of the essential foundations of a democratic society, and one of the basic conditions for its progress and for the development of every man. Moreover, it is applicable not only to 'information' or 'ideas' that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population, since these are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. This high valuing of freedom of expression is particularly striking when it comes to the political speech, the free political debate being a distinctive feature of a democratic society. Nevertheless, the European Court considers that whoever exercises his freedom of expression undertakes 'duties and responsibilities', and that the freedom of political debate is undoubtedly not absolute in nature. More concretely, when the hate speech is at issue the Court underlines that the tolerance and respect of equal dignity of all human beings constitutes one of the essential foundations of a democratic and pluralist society, and that in a democratic society, in principle, it may be considered necessary to punish and even to prevent all forms of expression which propagate, incite, promote, or justify the hate based on intolerance. Taking into account the notion of prohibition of hate speech in the constitutional system of the Republic of Serbia, and the place of the European Convention on Human Rights in its hierarchy of legal sources, this paper follows the evolution of the European Court's case-law as to the understanding and definition of conditions under which it may be considered necessary in a democratic society to restrict freedom of expression because of hate speech. This legal standard - necessary in a democratic society, is then compared to the clear and present danger test, which has been developed for almost a century in the case-law of the Supreme Court of the United States of America, and which application is sometimes recommended in Europe.

This article uses archival and newspaper sources along with basic secondary literature to examine legal proceedings conducted against Stjepan Radic', the leader of Croatia's strongest opposition party - The Croatian People's Peasant Party (HPSS). During 1919 and 1920, Radic was held in custody without trial, released, then rearrested and given a harsh sentence for politically opposing the creation of a unitaristic and centralized state under the Serbian Karadjordjevic dynasty. Radic wanted the distinctiveness of the Croatian nation to be recognized, so he sought automony for Croatia as the basis for its economic, political, and cultural development. Radic's trial, carried out inspite of the fact that some jurists felt it was unlawful, revealed the crux of the conflict between the regime and the HPSS, in effect, the Croatian opposition. Radic worked to ensure that the internal organization of the state would be based on national self-determination. For him, the upcoming election of a Constituent Assembly was all-important because it would determine the nature a Slovene-Croat-Serb state. Contrary to this, the Karadjordjevic regime assumed all the main national and constitutional questions had been settled on December 1, 1918, when a common kingdom of Serbs, Croats, and Slovenes had been proclaimed. As far as the government was concerned, only the formality of writing a constitution had to be handled by the Constituent Assembly. Even though he was released on the very day of the election, Radic's trial showed that the Karadjordjevic' regime intended to solve political problems by the use of force, and not according to the rule of law. (SOI : CSP: S. 126f.)

When researching multiculturalism and the process of Europeanisation in Serbia and countries of the region, one must first examine the status of multiculturality and multiculturalism, from the normative framework to states' policies which decidedly determine the nature and functioning of a political community. Starting from the fact that the context, nature and structure of a political community determines the essence of rights and freedoms stipulated by the constitution and laws, as well as that a synergy of good laws and sound policies enables an effective policy of multiculturality, integration and interlacing of cultures of diverse national communities in a society, the proclaimed multiculturalism was studied in this paper, with a view to ascertain whether such constitutional and legislative framework and policies exist, and if they did, whether there was concerted action between them. The key finding was that the states of the region support a civil state in principle, that they are exclusively or predominantly nationally legitimised by the highest legislative acts and that the factual state is marked by various national cultural identities that are not integrated into the model of plural citizenship. The paper shows that there is a lack of political will to transform the declared support for a pluralistic civil state into public policies affirming the values of multiculturalism, as well as that there is a lack of strong institutions to support such policy. Creating civil awareness, strengthening civil values and virtues are not priorities for state institutions or media controlled by governments. Rather than that, their priority is to strengthen national identities. Hence, based on the above, we can affirm that civil states, civil values and civil identities are only at initial stages, i.e. that they are still, only occasionally, at the level of general programme orientation and set aims. The necessary ingredient for their firm establishment is a consolidated democracy and acceptance of universal values of developed democracies, such as the rule of law and protection of human rights and freedoms.

Oвa диcepтaциje ce бaви законодавнoм функцијoм паpламентa и њeгoвим oднocoм ca дpyгим кoнкpeтним инcтитyциjaмa, кoje пpeyзимajy oд парламента пoвjepeнe мy надлежности, yзpoкyjyjyћи њeгoвy мapгинaлизaциjy. Oвaj пpoцec ниje нoв, aли пocтaje cвe комплeкcниjи. Нa почeткy cy тo билe влaдa и политичке партије, aли ce вpeмeнoм бpoj cyбjeкaтa кojи yгpoжaвajy законодавнy надлежност паpламентa пoвeћaвao. У oвoм кoнкpeтнoм питaњy, парламент ce cyoчaвa ca oзбиљним изaзoвимa, диjeлeћи надлежност joш и ca шeфoм дpжaвe, ycтaвним cyдoм, нeзaвиcним peгyлaтopим тиjeлимa. Нaжaлocт, тy ниje кpaj. Пpoцec eвpoпcкиx интeгpaциja, кpoз eвpoпcкy лeгиcлaтивy, кpeиpao je jeднy нoвy oблacт законодавнe дjeлaтнocти изyзeтe oд надлежности нaциoнaлниx парламенaта. Cнaжнe и вeoмa диcциплинoвaнe политичке партије дoминиpajy, нe caмo политичким пpoцecимa, вeћ и кoмплeтним парламентарним пpoцeдypaмa и њиxoв нapacтajyћи yтицaj yгpoжaвa пoдjeлy влacти кojy ycпocтaвљa ycтaв и пpoyзpoкyje прoблeме y фyнкциoниcaњy парламентa yoпштe. C oбзиpoм нa њиxoв знaчaj, oнe cy y oвoм paдy aнaлизиpaнe кao нeпocpeдни aктep, aли и индиpeктнo, кao чинилaц кojи кoнтpoлишe oдpeђeнe инcтитyциje кoje yгpoжaвajy законодавнy надлежност парламента. Знaчaj диcepтaциje oглeдa ce y тoмe штo oвoj пpoблeмaтици дo caдa ниje пocвeћeнa пyнa пaжњa, кoja yкљyчyje пpoцec eвpoпcкиx интeгpaциja и нeзaвиcниx peгyлaтopниx тиjeлa. Зaкљyчaк кojи cмo дoниjeли нaкoн иcтpaживaњa je дa oчиглeднo пocтojи пoтpeбa за парламентарнoм peфopмoм коja ћe yчинити законодавни пocтyпaк eфикacниjим, a законодавнo тиjeлo cнaжниjим. Гeнepaлнo, cмaтpaмo дa je нeoпxoднo cнaжeњe тpaдициoнaлнe пoдjeлe влacти. Диcepтaциja тaкoђe пpeдлaжe cпeцифичнa кoнкpeтнa pjeшeњa y кoнтeкcтy peфopмe законодавнoг пocтyпкa. ; Ova diceptacije ce bavi zakonodavnom funkcijom paplamenta i njegovim odnocom ca dpygim konkpetnim inctitycijama, koje ppeyzimajy od parlamenta povjepene my nadležnosti, yzpokyjyjyći njegovy mapginalizacijy. Ovaj ppocec nije nov, ali poctaje cve komplekcniji. Na početky cy to bile vlada i političke partije, ali ce vpemenom bpoj cybjekata koji ygpožavajy zakonodavny nadležnost paplamenta povećavao. U ovom konkpetnom pitanjy, parlament ce cyočava ca ozbiljnim izazovima, dijeleći nadležnost još i ca šefom dpžave, yctavnim cydom, nezavicnim pegylatopim tijelima. Nažaloct, ty nije kpaj. Ppocec evpopckix integpacija, kpoz evpopcky legiclativy, kpeipao je jedny novy oblact zakonodavne djelatnocti izyzete od nadležnosti nacionalnix parlamenata. Cnažne i veoma dicciplinovane političke partije dominipajy, ne camo političkim ppocecima, već i kompletnim parlamentarnim ppocedypama i njixov napactajyći yticaj ygpožava podjely vlacti kojy ycpoctavlja yctav i ppoyzpokyje probleme y fynkcionicanjy parlamenta yopšte. C obzipom na njixov značaj, one cy y ovom pady analizipane kao nepocpedni aktep, ali i indipektno, kao činilac koji kontpoliše odpeđene inctitycije koje ygpožavajy zakonodavny nadležnost parlamenta. Značaj diceptacije ogleda ce y tome što ovoj ppoblematici do cada nije pocvećena pyna pažnja, koja ykljyčyje ppocec evpopckix integpacija i nezavicnix pegylatopnix tijela. Zakljyčak koji cmo donijeli nakon ictpaživanja je da očigledno poctoji potpeba za parlamentarnom pefopmom koja će yčiniti zakonodavni poctypak efikacnijim, a zakonodavno tijelo cnažnijim. Genepalno, cmatpamo da je neopxodno cnaženje tpadicionalne podjele vlacti. Diceptacija takođe ppedlaže cpecifična konkpetna pješenja y kontekcty pefopme zakonodavnog poctypka. ; This dissertation is dealing with legislative parliament function and its relation with other particular institutions that take away stipulated powers from parliament causing his marginalization. This process is not new but it"s become more complex to deal with. In the beginning there was government and political parties, but during the time, number of actors that threaten the legislative competence of parliament increased. On this particular issue, modern parliament facing difficult challenges, sharing his competence with head of the state, constitutional court, independent regulatory agencies. Unfortunatelly, that is not the end. EU integration process, through the European legislation, creates new area of legislative activity excluded from the national parliaments. Strong and highly disciplined political parties are dominating not only political process but whole parliamentary procedures, and its increasing influence causes further damage to separation of powers that constitution establishes and harms parliament particulary. Considering their impact in this process, they are studied in this work directly, and indirectly – as an acter that control other particular institutions which threaten legislative competence of parliament. The importance of the dissertation is reflected in the fact that this issue does not have full attention including EU integration process, indepedent regulatory bodies. The conslusion that we made after the research is that obviously there is a need for parliamentary reform which will make law-making process more efficient, and legislative body stronger. Basically, we find it necessary strengthening of the traditional separation of powers. Dissertation also proposes specific solutions in the context of the law-making process reform.

The issue of security in the new social and political context has not stopped attracting the attention of strategic security studies, this time with the emphasis on contemporary concepts in response to non-military security issues, such as demographic changes or environmental degradation. It is obvious that we live in a world of fundamental political and economic changes in relations between states and non-state actors. Instability, military threats and conflicts are back in the focus of security policy, although in a completely new way that requires new understanding and a new attitude towards these categories, as well as a new response from the state and especially from the international community towards these kinds of threats or the use of force in a post-Cold-War order. In order to create a system in which all countries can function under the same rules, act in accordance with them and react in certain situations in compliance with those rules, it was necessary to create a single system of collective security. This system is a good basis for all countries to react according to the same rules and standards in certain situations when their safety is compromised. Integration processes and collective security are constants of a modern society and every country seeks to become a part of a specific system, whether it be a security-based, political or economic framework of integration. The main factor that was very important for the member states of NATO was the disappearance of the key danger coming from the East in the form of the Soviet Union and the Warsaw Pact. On the other hand, the issue of NATO's existence and future arose, as did the issue of justifying its existence, bearing in mind the absence of threats and enemies that might jeopardize the Western world. Academia and a number of scholars believed that NATO would cease to exist. For them the existence of such an alliance no longer made any sense, and they thought that it would be best for all the member states to stop being a part of such an Alliance. vi By the Declaration of Independence adopted by Parliament on June 3, 2006, Montenegro clearly committed itself to Euro-Atlantic Integration. Montenegro's membership of NATO and the EU is one of the foreign policy priorities of the Government of Montenegro. At a time when all South-East European countries are included in the Euro-Atlantic integration process, Montenegro's commitment to becoming a part of the regional and international security system (UN, NATO, EU, and OSCE) is a realistic and the best solution for achieving long-lasting stability and prosperity in the region. Montenegro's strategic goal is to build a modern and functional security system that has the ability to respond in the most efficient manner to the challenges, risks and threats to the state. For every country, the Constitution is the basis of its future path towards the democratization of the society and membership of international organizations. As the supreme law of the country, it is necessary to include all the standards that will clearly indicate the commitment of the state to the direction it wants to go, how it will develop, and which principles related to human rights and freedoms it must have. The Constitution of Montenegro does not question in any of its parts Montenegro's commitment towards membership of NATO and the EU. This is very important not only from a constitutional point of view, but also from the point of view of the international standards and norms that apply in other countries and represent the democratic standards of developed countries. Also, in this way Montenegro as a country demonstrates that despite any possible change of government it will remain committed to the European and Euro-Atlantic integration processes. At this moment, this determination is very important, bearing in mind all other aspects that could potentially affect Montenegro's path towards the Euro-Atlantic family. Consideration of the changing security environment in Europe and worldwide, as well as the improvement of the security situation by a number of Eastern European countries entering the EU and NATO, which inter alia required a reform of their defense systems in accordance with NATO standards, raises the issue of the future use of the defense capacities of Montenegro. ; The issue of security in the new social and political context has not stopped attracting the attention of strategic security studies, this time with the emphasis on contemporary concepts in response to non-military security issues, such as demographic changes or environmental degradation. It is obvious that we live in a world of fundamental political and economic changes in relations between states and non-state actors. Instability, military threats and conflicts are back in the focus of security policy, although in a completely new way that requires new understanding and a new attitude towards these categories, as well as a new response from the state and especially from the international community towards these kinds of threats or the use of force in a post-Cold-War order. In order to create a system in which all countries can function under the same rules, act in accordance with them and react in certain situations in compliance with those rules, it was necessary to create a single system of collective security. This system is a good basis for all countries to react according to the same rules and standards in certain situations when their safety is compromised. Integration processes and collective security are constants of a modern society and every country seeks to become a part of a specific system, whether it be a security-based, political or economic framework of integration. The main factor that was very important for the member states of NATO was the disappearance of the key danger coming from the East in the form of the Soviet Union and the Warsaw Pact. On the other hand, the issue of NATO's existence and future arose, as did the issue of justifying its existence, bearing in mind the absence of threats and enemies that might jeopardize the Western world. Academia and a number of scholars believed that NATO would cease to exist. For them the existence of such an alliance no longer made any sense, and they thought that it would be best for all the member states to stop being a part of such an Alliance. vi By the Declaration of Independence adopted by Parliament on June 3, 2006, Montenegro clearly committed itself to Euro-Atlantic Integration. Montenegro's membership of NATO and the EU is one of the foreign policy priorities of the Government of Montenegro. At a time when all South-East European countries are included in the Euro-Atlantic integration process, Montenegro's commitment to becoming a part of the regional and international security system (UN, NATO, EU, and OSCE) is a realistic and the best solution for achieving long-lasting stability and prosperity in the region. Montenegro's strategic goal is to build a modern and functional security system that has the ability to respond in the most efficient manner to the challenges, risks and threats to the state. For every country, the Constitution is the basis of its future path towards the democratization of the society and membership of international organizations. As the supreme law of the country, it is necessary to include all the standards that will clearly indicate the commitment of the state to the direction it wants to go, how it will develop, and which principles related to human rights and freedoms it must have. The Constitution of Montenegro does not question in any of its parts Montenegro's commitment towards membership of NATO and the EU. This is very important not only from a constitutional point of view, but also from the point of view of the international standards and norms that apply in other countries and represent the democratic standards of developed countries. Also, in this way Montenegro as a country demonstrates that despite any possible change of government it will remain committed to the European and Euro-Atlantic integration processes. At this moment, this determination is very important, bearing in mind all other aspects that could potentially affect Montenegro's path towards the Euro-Atlantic family. Consideration of the changing security environment in Europe and worldwide, as well as the improvement of the security situation by a number of Eastern European countries entering the EU and NATO, which inter alia required a reform of their defense systems in accordance with NATO standards, raises the issue of the future use of the defense capacities of Montenegro.