Suchergebnisse

Emerging constitutionalism and its inherent concept of "higher law" brought about a fundamental change of the institutional setting of many states in 19th and 20th century. It has significantly increased powers of the judicial branch and introduced a new concept of the separation of powers doctrine. Courts, formerly subservient to legislature, have commenced to exert new powers of judicial review imposing new checks on the legislative and the executive branch. The ratified international treaties make part of the Croatian legal order that national courts are bound to enforce, and the European Convention is granted constitutional protection before the Constitutional Court. This Court, having powers to strike down unconstitutional legislation has a chance, at least in theory, to impose significant checks on the legislative and executive branch. Moreover, the Constitutional court has clarified that ordinary courts have to treat the Convention as entrenched, "higher law" in a manner similar to the one accorded to constitutional provisions; in other words, the Convention is directly applicable in the Croatian legal order and enjoys a quasi- constitutional rank. (SOI : PM: S. 93)

Today it is a commonplace that the Court of Justice of the European Communities has played an indispensable role in the process of European legal integration.The practice of the European Court, often described as activist, has resulted in at least, two developments: (a) transformation of the original (treaty forged) relationship between national and European law, and (b) remodeling of the vertical separation of powers between the Union and its Member States. These developments seem to be restrained by the reaction of some Member States, acting on both, supranational and national level. Supranational judicial activism developed in the European Union has threatened to jeopardize constitutional values of Member States and strip them off their residual powers. In other words, the European Court of Justice acts as a supranational counter-majoritarian force in respect of national legislatures. On the other hand, national courts, following the traditional reasoning infused with the concept of national sovereignty are reluctant to recognize the supremacy of supranational legal rules when they are at variance with national constitutional law. + It is suggested that the issue of legitimacy is of essential importance for the future of the European Union. However, one has to distinguish the sources of legitimacy of judicial and legislative branch. While the latter is derived from the political process, the former is derived from procedural and substantive justice. While legislative regulation reflects interests, judicial regulation is an expression of justice. In other words, the two branches of government are to certain extent incommensurable. That explains why the ECJ has retained its legitimacy even in the absence of democratic process. That also explains why the battle for supremacy has to be won not only on the legislativ but also on the judicial ground. (SOI : PM: S. 104)

Popular sovereignty in Croatia can be exercised either by representation, or by direct democracy, i.e. by direct popular involvement in decision making. Following initial overview of legal rules regulating exercise of direct democracy in Croatia, it will be demonstrated that almost complete absence of national referenda over the past eight years of Croatia's independence can be explained by specific political consensus among the President of the Republic, the Parliamentary majority and the Government. I will also present relevant decisions of the Constitutional Court on the point and try to answer to what extent probability of referenda in Croatia depends on institutional balance.

The article discusses the historical foundations and development of the right to free development of personality guaranteed by Article 2 section 1 of the Basic Law (BL). Though Article 2 section 1 has remained unchanged since enactment of the BL, the right to free development of personality has been significantly developed and elaborated by the Federal Constitutional Court. On the one hand, when interpreted in conjunction with Art. 1 section 1 of the BL it protects the general right of personality, and on the other hand a broadly defined general freedom of action. Both lines of jurisprudence are supported by a large number of cases which have granted protection to a number of unspecified rights. Examples are protection of private and intimate life sphere, data protection rights, right to personal dignity, right to one's own spoken word, etc. That leads to a conclusion that any attempt to create a comprehensive formal catalogue of fundamental rights must necessarily remain incomplete. An exhaustive list of fundamental rights is possible only in absence of their concretization. As the German experience shows, any interpretation, i.e. concretization of fundamental rights, necessarily leads to the change of their scope and substance. (SOI : PM: S. 129)