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Journal articles on the topic 'Constitutionality control of laws'
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1
Bzova, L., and A. Pankratova. "History and systems of control of constitutionality: international experience." Uzhhorod National University Herald. Series: Law 1, no. 75 (March 22, 2023): 71–74. http://dx.doi.org/10.24144/2307-3322.2022.75.1.11.
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This article examines the historical evolution of constitutionality control, its concept and its various systems. In the study of modern constitutionalism, the topic of constitutional control, especially from the side of constitutional jurisdiction exercised by constitutional courts, is gaining more and more strength. The control of constitutionality is the supervision of the compatibility of regulatory acts with the constitutional text. From supremacy and constitutional centrality, any laws, to remain valid in the national legal system, must maintain respect, formal and substantive, for the constitutional text. It is at this moment that constitutionality control, which is carried out diffusely by various bodies of judicial power, comes into play. The idea of constitutional review is related to the supremacy of the Constitution over the entire legal system, as well as constitutional rigor and protection of fundamental rights.
The existence of normative escalation is a necessary prerequisite for constitutional supremacy, since, occupying the constitution of the hierarchy of the normative system, it is in it that the legislator will find the form of legislative development and its content. Moreover, in countries that have a strict Constitution, that is, those that provide for their own amendment a more serious legislative procedure than is provided for by ordinary laws, a kind of regulatory pyramid is established, at the top of which is the Constitution.
Therefore, the control of constitutionality is a guarantee of the supremacy of basic rights and guarantees provided by the Constitution, which, in addition to setting the boundaries of state power, is also part of the legitimacy of the state itself, defining its duties and enabling the democratic process under the rule of law. Control of constitutionality means checking the perfect adequacy of the law or normative act of the Constitution, checking its formal and material requirements. This is always a comparative examination between a legislative or regulatory act and the Constitution. From this we can say that any legislative or regulatory act that contradicts the Basic Law of the organization of the state must be declared unconstitutional.
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Bendjerad, ABDERRAHMANE, and ABDELKADER Mahdaoui. "Procedures for the unconstitutionality between political control and judicial supervision - comparative study." Milev Journal of Research and Studies 5, no. 2 (December 31, 2019): 382–400. http://dx.doi.org/10.58205/mjrs.v5i2.1226.
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The procedure for unconstitutionality of laws in countries that have entrusted the task of controlling the constitutionality of laws to a political body differs from those States that have entrusted this task to a judicial body, as countries that have taken political control such as France and Algeria have been entrusted with censorship of the constitutionality of laws to a Constitutional Council Adjudicates the legality of the Law on which the money of a dispute depends when it violates rights and freedoms, whereas in states that take judicial control, such as the United States of America and Morocco, the law is adjudicated by a judicial body, often a constitutional court.
The study attempts to explain the most important differences between the two types of control over the constitutionality of laws and the powers of judicial bodies in charge of supervision.
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Husa, Jaakko. "Locking in Constitutionality Control in Finland." European Constitutional Law Review 16, no. 2 (June 2020): 249–74. http://dx.doi.org/10.1017/s1574019620000139.
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Monitoring the constitutionality of laws in Finland – Political control rather than judicial control – Understanding why requires a study of historical layers – Evidence that at several historical points certain elemental choices were locked in – Resulting difficulties in later abolishing or changing patterns – Interactive relationship between the political and the legal – Finland’s constitutional past still circumscribes the role of the judiciary in constitutionality control
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Linetskyi, Serhiy, Vasyl Patlachuk, and Oleksandr Lihota. "ENSURING THE CONSTITUTIONALITY OF NORMATIVE ACTS AS A FUNCTION OF THE REGULATIONS OF THE VERKHOVNA RADA OF UKRAINE: SOME THEORETICAL, LEGAL AND APPLIED ASPECTS." Baltic Journal of Legal and Social Sciences, no. 3 (October 17, 2024): 43–51. http://dx.doi.org/10.30525/2592-8813-2024-3-5.
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The subject of the study is a theoretical and legal analysis of the functional orientation of the Rules of Procedure of the Verkhovna Rada of Ukraine (hereinafter – the Rules) in the area of ensuring the constitutionality of normative acts. The research methodology is based on a combination of general scientific and special scientific methods selected with due regard for the purpose and subject matter of the study. The dialectical method was used to study the existing trends in scientific cognition of the role of the Rules of Procedure in parliamentary procedures. The methods of analysis and synthesis ensured the identification of regulatory provisions dedicated to ensuring the constitutionality of normative acts and their organization in the form of a single system of activities of the authorized subjects of the legislative procedure. The hermeneutic method helped to interpret the content of the regulatory provisions aimed at ensuring the constitutionality of normative acts. The systemic and structural method helped to identify the stages of regulatory support for the constitutionality of normative acts. The application of the prognostic method made it possible to identify problematic issues in the regulatory framework for ensuring the constitutionality of normative acts and to formulate legal and technological approaches to solving problems in this area. The purpose of the study is to provide a theoretical and legal assessment of such a little-known legal phenomenon as ensuring the constitutionality of normative acts – as a special legal function of the Rules of Procedure. The results of the study prove the objectivity of singling out such a function of the Rules as ensuring the constitutionality of normative acts and demonstrate the dialectic of its implementation at different stages of the legislative procedure, and identify certain legal issues in this area. Conclusions. One of the key functions of the Rules of Procedure of the Verkhovna Rada of Ukraine is the function of ensuring the constitutionality of normative acts, primarily laws. The realization of this function is systematic and progressive, being traced at different stages of the legislative procedure. It makes it possible to characterize the participation of the Verkhovna Rada of Ukraine in constitutional control over the constitutionality of laws as a highly specialized legal activity of authorized subjects, which is carried out within the structure of the legislative procedure and has the nature of preventive control, covering mainly different stages of preparation and consideration of draft laws. The main problems in this area are objective (such as fragmentary gaps or insufficient clarity of regulatory norms to ensure such constitutionality) and subjective (such as arbitrariness of the legislator's consideration of scientific, expert and legal opinions on the unconstitutionality of certain provisions contained in newly adopted laws and dominance of political interests over legal ones). At the same time, the logic of the presentation and the content of the regulatory provisions make it possible to comprehend the ways of optimizing some of its provisions with a view to exercising stricter internal parliamentary control over the constitutionality of laws in order to minimize the effort required for a possible challenge of such acts to their constitutionality before the Constitutional Court of Ukraine.
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Brown, Angus Harwood. "Sieyès’s Constitutional Jury, the Pennsylvania Council of Censors, and the Debate on the Conservative Power in the French Revolution." Journal of the History of Ideas 85, no. 3 (July 2024): 479–508. http://dx.doi.org/10.1353/jhi.2024.a933856.
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Abstract: Emmanuel-Joseph Sieyès’s 1795 proposal for a Constitutional Jury is usually portrayed as the first proposal for an institution to control the constitutionality of laws, and thus the ancestor of the modern constitutional court. Challenging this view, this article resituates the Constitutional Jury in a broader transatlantic tradition concerned with creating a conservative power, a non-judicial and explicitly political constitutional guardian, and demonstrates the influence of the 1776 Pennsylvania Council of Censors on Sieyès’s Constitutional Jury. Drawing upon the insights provided by this tradition, it then reevaluates the history of constitutionalism and the contemporary crisis of constitutional guardianship.
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Roach, Kent. "The Primacy of Liberty and Proportionality, Not Human Dignity, When Subjecting Criminal Law to Constitutional Control." Israel Law Review 44, no. 1-2 (2011): 91–113. http://dx.doi.org/10.1017/s0021223700000972.
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This comment argues that courts should focus on the negative liberty interests of the accused and the proportionality of state-imposed limits on those interests, as opposed to the human dignity of either the accused or the victim, when determining the constitutionality of criminal laws. The first part of the comment examines the Canadian experience with regard to the constitutional control of the criminal law. Canadian courts have focused on the liberty of the accused but have been unwilling to consider how the liberty interests of the accused can be subject to proportionate limitations. The next part suggests that human dignity has a dual character that can both support and oppose many controversial parts of the criminal law and as such is not particularly helpful for courts in assessing the constitutionality of criminal laws. The third part critically examines the presumptions of constitutionality proposed by Gur-Arye and Weigend and suggests that human dignity has little work to do in these presumptions. The last part suggests that a focus on the negative liberty of the accused and the proportionality of the state's limits on those rights provides the best foundation for constitutional control of the criminal law.
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Barbu, S. G., and C. M. Florescu. "The Relationshipbetween EU Law and National Constitutional Law in the Field of Fundamental Rights." Bulletin of the Transilvania University of Braşov Series VII Social Sciences • Law 14(63), Special Issue (February 22, 2022): 9–16. http://dx.doi.org/10.31926/but.ssl.2021.14.63.3.1.
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The Constitutional Court of Romania carries out the control of the constitutionality of the laws and ordinances of the government and pronounces decisions that have a binding effect erga omnes. Within the constitutionality control, a special position is occupied by the EU law. In our paper we will focus on the interferences that may arise between the national norm, the EU law and the national Constitution, from the perspective of the jurisprudence of the Constitutional Court and the principle of priority of the EU law.
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Karakamisheva-Jovanovska, Tanja, and Dejan Saveski. "Macedonian Constitutional court and ratified international agreements - can the concluded international agreement be a subject of constitutional review?" Zbornik radova Pravnog fakulteta u Splitu 59, no. 2 (July 15, 2022): 315–49. http://dx.doi.org/10.31141/zrpfs.2022.59.144.315.
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In every domestic law that is part of the continental legal tradition, the Constitutional court has the central role of keeping the normative balances between the national and international legal order. The formulation “internal, national legal order” involves all pronounced acts, which means the Constitution, statutes, by-laws, and ratified international agreements. Every provision of the national law must be in normative harmony with the Constitution – as a domestic regulation with the highest legal power. Hence, with the act of ratification, the international agreements can be subject to the constitutionality review - besides the statutes and the by-laws. The constitutional makers can decide the constitutionality review of the international agreements to be prescribed by constitutional norms. If the constitutional makers omitted to regulate specialized authorization, the Constitutional court, through its own practice, can create a model for reviewing the constitutionality of the international agreements. Having in mind that the Macedonian constitutional system has not provide the constitutionality control of the international agreements, the Macedonian Constitutional court has a fully independent role in defining the method for implementing the principle constitutionality over the international agreements – a specialized model for “interpretation” (complement) of the constitutional law. More precisely, the Macedonian Constitutional court has already accepted this approach for constitutional law interpretation.
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Chelaru, Eugen. "ON THE CONSTITUTIONALITY CONTROL OF THE ACTS ISSUED BY THE GOVERNMENT OF ROMANIA." Polish Law Review 2, no. 2 (December 31, 2016): 55–67. http://dx.doi.org/10.5604/24509841.1230281.
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Together with the Romanian President, the Government forms the executive. In its activity, the Government issues two categories of acts: decisions, which are the acts that organize the enforcement of laws (an activity that lies within its exclusive competence) and ordinances, by means of which a genuine delegated legislative activity is carried out. All acts issued by the Government are subject to control, but the nature of this review differs depending on the nature of the act. Thus, while decisions are subject only to a review of legality, which is exercised by the courts, under the Law of the Contentious- Administrative, ordinances are subject to both a review of legality and to a review of constitutionality. The peculiarities of the procedure for adopting Government ordinances also made their procedure of constitutionality control differ in some respects from the procedure of reviewing the constitutionality of laws. Thus, the constitutionality control of government ordinances is performed only after their entry into force, by settling the exceptions of unconstitutionality by the Constitutional Court; the exception of unconstitutionality may be brought to court only with the introduction of an action before the contentious-administrative court and not before another court or in another stage of the proceedings; the holder of the objection of unconstitutionality is only the applicant in the proceeding; the resolution of rejecting the criticism of unconstitutionality is a plea of inadmissibility, which, in all cases, obliges the contentious-administrative court to overrule the action as inadmissible. As an exception, the Ombudsman may appeal directly to the Constitutional Court against a government ordinance or against a provision of an ordinance, without having to file for a common law action.
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Galyaeva, Irina. "Not only France: preliminary review of the constitutionality of laws around the world." Sravnitel noe konstitucionnoe obozrenie 31, no. 3 (2022): 62–99. https://doi.org/10.21128/1812-7126-2022-3-62-99.
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Preliminary review of the constitutionality of laws is one of the primary types of constitutional control of legislation. While it exists in many countries of the world, as to domestic doctrine, research about it is limited to a description of the French model of constitutional control. The purpose of this article is to describe this institution based on analyses of constitutions, legislation, the practice of constitutional control bodies, and the doctrines of countries in different parts of the world (Latin America, Europe, Africa, Asia). This article studies the experience only of specialized judicial bodies of constitutional control. It has been established that the most important aspects of analyses of this institution in various countries are the moment of application of preliminary control either “at the entry” or “at the exit”, including the relationship of preliminary control and the right of veto; who may seek this review; the features of this procedure (such as time limits for making a decision, the form of application for review, formation of the subject of verification); and the consequences of a decision of constitutionality or unconstitutionality, including its relationship to subsequent constitutional review. Thus, preliminary judicial control of the law is carried out, as a rule, from the moment the legislative process for a law begins and continues through enactment by the parliament and until signing or promulgation of the law, which is described as control “at the entry”. Between these time points, there may be a veto by the head of state, the relationship of which to preliminary control “at the exit” depends on whether a veto on constitutional grounds and a veto on political grounds are differentiated in a given country. Who may apply for preliminary constitutional control is limited, but regardless of the form of government, the most frequently permitted entities are the president and a group of parliamentarians. The most notable features of preliminary constitutional review as a whole are its predominantly written nature, the limited time limits for it, and the way courts evaluate the contested norms. At the same time, the consequences of decisions not only of unconstitutionality but also of constitutionality are important, since this decision may lead to the impossibility of exercising subsequent constitutional review of the same law.
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VERONESE, Osmar, and Matheus Weiss PEREIRA. "A (IN)APLICABILIDADE DA TEORIA DA OBJETIVAÇÃO OU ABSTRATIVIZAÇÃO DO CONTROLE DE CONSTITUCIONALIDADE DIFUSO NO BRASIL." Revista Juridica 2, no. 55 (April 11, 2019): 565. http://dx.doi.org/10.21902/revistajur.2316-753x.v2i55.3789.
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RESUMOO constituinte originário brasileiro optou pelo modelo de Constituição rígida, no qual o sistema de controle de constitucionalidade das leis objetiva averiguar se a norma infraconstitucional está em consonância com as diretrizes previstas no texto constitucional. O presente artigo versa sobre o controle repressivo de constitucionalidade incidental, com ênfase no mecanismo constitucional que permite ao Senado Federal suspender a execução de lei declarada inconstitucional pelo Supremo Tribunal Federal e na verificação de aplicabilidade da teoria da objetivação do controle difuso no Direito brasileiro. O estudo analisa brevemente os sistemas repressivos de controle de constitucionalidade que influenciaram o sistema brasileiro, noticia aspectos históricos do controle pátrio, apresenta características processuais e o modo como é processada a arguição de inconstitucionalidade na via incidental, verifica a atuação senatorial no sistema difuso, e, ao fim, examina a possibilidade de o Supremo Tribunal Federal, de acordo com sua vontade, aplicar da teoria de objetivação no âmbito desse sistema.PALAVRAS-CHAVE: Constituição Federal; Supremacia Constitucional; Controle de Constitucionalidade; Mutação Constitucional; Teoria da Objetivação ABSTRACTThe Brazilian constituent opted for the rigid Constitutional model, in which the constitutionality control system of the laws aims to determine if the infraconstitutional norm is in line with the guidelines established in the constitutional text. This article deals with the repressive control of incidental constitutionality, with emphasis on the constitutional mechanism that allows the Federal Senate to suspend the execution of a law declared unconstitutional by the Federal Supreme Court and to verify the applicability of the theory of objectivation of diffuse control in Law Brazilian. The study briefly analyzes the repressive systems of constitutionality control that influenced the Brazilian system, notices historical aspects of the parental control, presents procedural characteristics and the way in which the argument of unconstitutionality is processed in the incidental way, verifies the senatorial performance in the diffuse system, and, in the end, it examines the possibility of the Federal Supreme Court, according to its will, to apply objectification theory within this system.KEYWORDS: Federal Constitution; Constitutional Supremacy; Constitutionality Control; Constitutional Mutation; Theory of Objectivation.
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林家祺, 林家祺. "金融管制法律之實質合憲性審查." 財產法暨經濟法 76, no. 76 (June 2024): 1–33. http://dx.doi.org/10.53106/181646412024060076001.
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Pleskach, V. Y. "History of establishment and features of constitutional control in Estonia." Analytical and Comparative Jurisprudence, no. 1 (May 29, 2023): 110–14. http://dx.doi.org/10.24144/2788-6018.2023.01.18.
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Ukraine has chosen for itself the European model of centralized constitutional control, which implies creation of a separate Constitutional Court to resolve cases on the constitutionality of laws and some other legal acts. Of course, this model is not unique is also not the only one in the organization of constitutional control among those used in Europe. One of the most attention-grabbing alternative options for the organization of constitutional control is the Estonian model - which, although it is similar to those countries where disputes about the constitutionality of laws are resolved by courts of general jurisdiction (or only by the Supreme Court), is nevertheless unique in many ways.
The article examines the factors that influenced Estonia's development of its unique approach to the organization of constitutional control, as well as an analysis of the possibility and expediency of transferring this experience to countries with already existing constitutional control, where the Constitutional Court operates. In particular, to begin with, the history of the development of the judicial system in Estonia in the 20th century was considered. Immediately after this country gained independence, its first Constitution was adopted, which became the basis for the birth of constitutional control in Estonia. The article also examines the peculiarities of the procedure for reviewing constitutionality of laws in Estonia by courts of all levels (including the Supreme Court) under the current legislation.
A separate subject of attention in the article is the discussion that has been going on for a long time in Estonia about the necessity and expediency of depriving the Supreme Court of its powers to exercise constitutional control with the formation of the Constitutional Court as a separate body. The key arguments put forward by both supporters and opponents of the changes have been considered.
According to the results of the study, possible risks for the Supreme Court and the mandate of its judges, which may be accompanied by the transfer of the Estonian experience in the organization of constitutional control to countries where there is a separate Constitutional Court, are highlighted.
The relevance of the study is due to the fact that despite the lively interest in the unique features of the organization of the Estonian judicial system, due to the language barrier, the question of the history of the formation of the Supreme Court of Estonia as a body of constitutional control escapes the attention of researchers.
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Iacuba, Andrei, and Georgian Ionuț Stan. "Constitution Supremacy and the Reasonable Limits of Case Law Reversal within the Framework of Constitutionality Control." Perspectives of Law and Public Administration 13, no. 2 (June 25, 2024): 255–64. http://dx.doi.org/10.62768/plpa/2024/13/2/07.
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Undoubtedly, constitutional supremacy can lead to spacious social peace in a constitutional democracy. The fact that the other laws in the normative hierarchy are valid and conform to the fundamental act leads to juridical security for the subjects of law. Sometimes, to guarantee the supremacy of the constitution, a constitutionality review is established through a constitutional litigation court, at other times, this review is left to ordinary courts, thus guaranteeing constitutional supremacy in both ways. Contrary to the purpose of guaranteeing constitutional supremacy, constitutional courts can disconnect themselves from what they protect – the constitution, and through undesirable case law reversals, the content of constitutional norms can be disregarded. In this context, it is necessary that some reasonable limits be brought into discussion.
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Hadała-Skóra, Anna, and Karol Piękoś. "Preventive control of the constitutionality of laws from 1997 to 2020 – a comparative analysis." Polityka i Społeczeństwo 20, no. 4 (2022): 122–33. http://dx.doi.org/10.15584/polispol.2022.4.8.
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The President of the Republic of Poland, by virtue of Article 122(3) of the Constitution of the Republic of Poland of 2 April 1997, has the exclusive competence to initiate preventive control of regulations before the Constitutional Tribunal aimed at examining their constitutionality. The essence of this action is to seek to check those regulations that raise doubts in the President's mind as to their compatibility with the Constitution. Legal regulations concerning the procedure for removing inconsistencies are set out both in the Constitution of the Republic of Poland and in the Regulations of the Sejm. This article will present an analysis of practice within the framework of the examined issue.
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Ismailov, Rovshan. "Prospects of the European Model of Constitutional Control." Journal of Foreign Legislation and Comparative Law 20, no. 1 (2024): 32. http://dx.doi.org/10.61205/jzsp.2024.1.2.
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The traditional perception of the European model of constitutional control was formed largely thanks to the Italian scientist Piero Calamandrei, who developed in the middle of the last century a classification of constitutional control, one of the most important elements of which is the opposition of centralized and decentralized models of constitutional control. This classification was based on the constitutional experience of a very limited number of states that provided the institution of constitutional control in their legal systems at that time. After several decades, the evolution of constitutional control in these countries, as well as its establishment and development in many other states, allows us to take a different look at some well-established concepts. In particular, the verification of constitutionality, carried out on the basis of appeals from courts of general jurisdiction, turned the monopoly of the constitutional court on the exercise of control over constitutionality into its monopoly on the mandatory recognition of the norm unconstitutional for the relevant subjects. In addition, the centralization of the European model is further weakened as a result of the interpretation of laws by courts of general jurisdiction in accordance with the constitution, which is essentially a “small” constitutional control designed to prohibit the unconstitutional content of the norm, rather than its text. The verification of “pre-constitutional” laws by courts of general jurisdiction, conducted in a number of countries, also indicates some decentralization of the European model. The existing practice in France of the relationship between the Court of Cassation, the Council of State and the Constitutional Council shows that in this country there are three independent supreme judicial bodies, each of which can interpret the Constitution independently. Thus, the centralization of the European model is eroded by a number of decentralizing elements provided for both at the legislative level and introduced by the judicial practice of various constitutional courts.
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Hemmens, Craig, and Katherine Bennett. "Juvenile Curfews and the Courts: Judicial Response to a Not-So-New Crime Control Strategy." Crime & Delinquency 45, no. 1 (January 1999): 99–121. http://dx.doi.org/10.1177/0011128799045001006.
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There is widespread sentiment that juvenile crime is out of control. Although this perception is incorrect, it has led to a number of changes in how juvenile offenders are dealt with, such as increased use of waiver to adult court and more frequent use of confinement as a sanction. This article examines the constitutionality of juvenile curfews, another currently popular response to the supposed juvenile crime wave. Because the Supreme Court has not provided guidance on this issue, the authors examine recent lower court decisions and discuss the legal implications of juvenile curfew laws.
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Gonçalves da Silva, Hailton. "DEMOCRATIC LEGITIMACY OF THE BRAZILIAN CONSTITUTIONAL JURISDICTION." Revista Gênero e Interdisciplinaridade 5, no. 04 (July 10, 2024): 16–40. http://dx.doi.org/10.51249/gei.v5i04.2116.
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Constitutional jurisdiction from the 1988 Federal Constitution gave the Judiciary responsibility for controlling the constitutionality of norms, which has caused a certain conflict between constitutionalism and democracy, two sides of the same coin. Would it be possible and healthy for democracy for the Judiciary to declare unconstitutional a rule authored by the Legislative Branch, which is made up of members elected by the people? The answer is yes, despite existing criticisms, if there is dialogue and joint, cooperative work between the powers. This is only possible if the control carried out by the Judiciary can protect not only the integrity of the democratic procedure, but also other constitutional values. The research is carried out using bibliographic methodology. It concludes with the thought that the legitimacy of the members of the Judiciary, in addition to its provision in the Constitution, is constructed in practice as it is decided under the motivation of the constitutional text and laws originating from parliament and which represent the people.
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AL_Rehami, Dr Saad, Dr Rafah Karbal, and Hussain Jebur Hamood. "Public Opinion Control on Imposition of Environmental Tax." Migration Letters 21, S1 (December 22, 2023): 317–23. http://dx.doi.org/10.59670/ml.v21is1.6058.
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Given the superiority of constitutional rules over other legal rules, it is necessary to have legal means that guarantee respect for the sublime legal rules by the public authorities in the state, especially the legislative authority - as it represents the public that elected it - to prevent their violation, or abuse in using its power. However, these legal guarantees are not sufficient to ensure the application of the rules, and jurists agree that public opinion control or public control is the best guarantee for defending constitutional principles because constitutional principles and rules derive their strength from individuals’ confidence in and abidance by those principles. Therefore, the presence of public control alongside judicial oversight over the principle of the constitutionality of laws is an extremely important issue for enforcing and respecting constitutional rules.
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Kalish, Dar'ya. "Specificity of the interpretation of constitutionality in the Fifth Republic in France." Sravnitel noe konstitucionnoe obozrenie 30, no. 3 (2021): 125–40. http://dx.doi.org/10.21128/1812-7126-2021-3-125-140.
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In France, the understanding of the constitutionality of law and the wider institution of constitutional control have interesting features, especially when compared to other countries that use the traditional, legal European (Kelsen’s) model. These include the originality of the standard, against which legislative acts are checked. It is the so-called constitutional bloc, which, in addition to the 1958 Constitution itself, includes the Declaration of the Rights of Man and Citizen of 1789, the Preamble to the 1946 Constitution, the 2004 Environmental Charter, as well as the principles to which the Constitutional Council attaches constitutional significance. A feature of French public law in accordance with the 1958 Constitution is the non-universal legislative competence of parliament and the delimitation of the areas of regulation of law and regulations (government acts). In this regard, one of the requirements for the constitutionality of the law in France is that it should not interfere with the sphere of regulatory power, that is, it should not touch upon issues that are not attributed to the subject of legislative regulation by the Constitution. However, Parliament’s violation of the delimitation of legislative and regulatory regulation established by the Constitution does not include the unconstitutionality of the corresponding law (its individual provisions), instead only allowing the Government to amend them by its decrees. For a long time in France, there was only preliminary constitutional control over laws, legislative proposals submitted to a referendum, regulations of the chambers of Parliament and international treaties. As a result of the 2008 constitutional reform, a specific, subsequent constitutional review was introduced. It can be initiated in the Constitutional Council by the Court of Cassation or the Council of State upon an appeal, respectively, by a court of general jurisdiction or an administrative court, before which a statement is made that the law being applied to the dispute under consideration violates constitutionally guaranteed human rights. The institution of subsequent constitutional review has proved to be in great demand, and currently, most of the Constitutional Council’s decisions are made within its framework. In modern France, the development of legislation is significantly influenced by EU law. However, neither the Constitutional Council nor the Council of State directly monitor the compliance of laws and regulations with international treaties and EU law.
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Bačić, Arsen. "Statute of the Town and Island of Korčula 1214/1265 and issues of (dis) continuity of old and new constitutionalism." Zbornik radova Pravnog fakulteta u Splitu 55, no. 3 (October 3, 2018): 541–56. http://dx.doi.org/10.31141/zrpfs.2018.55.129.541.
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In classic natural law the issue of constitution was related to the laws, institutions and practice of organising and directing states and the political system. According to this understanding, every political system of town-state had a constitution. The contemporary meaning of constitution nevertheless gained specific and valuable foundation: today the constitution means the establishment of a special form of political organisation. Contemporary constitutions talk of limited government. With a constitution, political power is constituted and limited at the same time. Some states are constitutional because they have a limited and responsible government and others are not. In the latter case, we are talking about states that have a constitution, but do not have constitutionalism. After civil revolutions, constitutionalism becomes the central mechanism of control of political power and ensuring freedom. This text opens up the question of whether the Statute of Korčule of the year 1214/1265, as a normative projection of municipal organs in the Town and Island of Korčula (assembly of all people, duke, grand council, small council, curia, utility services...), provided the base for researching the (dis)continuity of „ancient constitutionalism“ and classic rational, uniform and contractualistic forms of modern constitutionalism which is based on the constitution as the highest legal act and court control of constitutionality. In conclusion, the Statute of the Town and Island of Korčula, as a unique normative crossword puzzle of medieval institutions, special freedoms and multi-level jurisdictions, represented a real historical platform. From this platform all those bearers of power who implemented power could be controlled and balanced either within legal boundaries or they strived for absolutism and corruption.
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Petrov, Aleksey A. "Verification of the constitutionality of normative legal acts (based on the practice of the Russian Сonstitutional Сourt)." Tyumen State University Herald. Social, Economic, and Law Research 9, no. 2 (2023): 128–42. http://dx.doi.org/10.21684/2411-7897-2023-9-2-128-142.
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This article examines the practice of the RF Constitutional Court in the cases on verifying the constitutionality of laws and other legal acts. Such cases formed the main content of the activities of the Constitutional Court in the field of judicial constitutional normative control at the first stage of its history (1992–1993), but then they became a rarity. The reasons for such dynamics are revealed. It is concluded that the criteria related to the issues of competence of public authorities and officials are subject to exclusion from the list of criteria for verifying the constitutionality of legal acts established by the Law on the Constitutional Court, since the constitutional judicial assessment of legal acts according to these criteria should be given as part of the consideration of disputes on competence by the Constitutional Court. Special attention is paid to the issues of verifying the constitutionality of legal acts in terms of the norms’ content; practical examples show the variety of situations in which such verification becomes possible. The possibility of restoring normative regulation is indicated if it was present in a legal act that was recognized as inconsistent with the Constitution on criteria not related to verifying the content of such act.
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Berchenko, Hryhorii, Tetiana Slinko, Yevhenii Tkachenko, and Volodymyr Kobryn. "PRELIMINARY JUDICIAL CONTROL OF AMENDMENTS TO THE CONSTITUTION: COMPARATIVE STUDY." Access to Justice in Eastern Europe 5, no. 4 (November 4, 2022): 1–12. http://dx.doi.org/10.33327/ajee-18-5.4-n000435.
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Background: Genetically, constitutional control appeared in connection with the need to check the constitutionality of ordinary laws adopted by the parliament. A significant practice of the bodies of constitutional jurisdiction regarding preliminary or subsequent control overdraft laws/laws on amendments to the constitution was also gradually formed. This approach has both positive and negative sides. In Ukraine, a significant practice of the Constitutional Court of Ukraine has already been formed regarding the provision of conclusions on the compliance of draft laws on amendments to the Constitution of Ukraine to comply with its Arts. 157-158 (preliminary control). An assessment of the relevant national experience is impossible without a comparative approach and study of the experience of foreign countries. Methods: The present paper used the following methods of analysis and synthesis to examine the main approaches to the nature of the preliminary judicial constitutional control of amendments to the constitution and its variation (explicit and implicit): the system-structural method, which allowed us to give a structural description of the preliminary judicial constitutional control of amendments to the constitution, as well as to analyse the content of its variations (explicit and implicit), and the logical-legal method, which provided an opportunity to clarify the content of the legal positions of constitutional courts and supreme courts of foreign countries on the implementation of the preliminary judicial constitutional control of amendments to the constitution. Results and Conclusions: Theoretical and practical approaches to substantiating the nature of the preliminary judicial constitutional control of amendments to the constitution in foreign countries were developed and analysed.
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Hae-Cheol Byun. "French Constitutional Reform of Control of Constitutionality of Laws : Focused on the Constitutional Amendment in 2008." Journal of European Union Studies ll, no. 28 (February 2011): 93–116. http://dx.doi.org/10.18109/jeus.2011..28.93.
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BOULAGOUAS, Ibtissem. "The Constitutional Court in Algeria- Critical Analytical Study-." Journal of Science and Knowledge Horizons 4, no. 01 (June 18, 2024): 241–58. http://dx.doi.org/10.34118/jskp.v4i01.3863.
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The constitutional amendment of 2020 brought about many reforms, primarily the establishment of the Constitutional Court as an independent constitutional institution responsible for ensuring the respect of the constitutional document. The Constitutional Court replaced the Constitutional Council, which was established by the previous Algerian constitutions starting from that of 1963 to that of 2016, except for the constitution of 1976 which did not provide for the establishment of an institution to guarantee the supremacy of the constitutional document. This study evaluates the constitutional reforms that affected the constitutional body responsible for control over the constitutionality of laws, regarding their form and competency.
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Maslovskaya, Tatiana. "Transformation of the Institution of Constitutional Control in the Republic of Belarus." Academic Law Journal 24, no. 4 (December 26, 2023): 480–91. http://dx.doi.org/10.17150/1819-0928.2023.24(4).480-491.
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The article examines the stages of the evolution of constitutional control in the Republic of Belarus, through the prism of the development of abstract and concrete control. Characterizing the form of abstract control, attention is drawn to a certain adjustment of abstract subsequent control, introduced with the adoption of the Constitution of the Republic of Belarus in 1994, at different stages of constitutional development (1996, 2014, 2022) in relation to subjects of circulation, objects of control. The form of mandatory preliminary control over the constitutionality of laws adopted by Parliament before their signing by the President, introduced in 2008, is analyzed. As a result of the constitutional changes of 2022, the Belarusian model of preliminary constitutional control has undergone a certain transformation associated with its constitutional legitimation, the expansion of objects of preliminary control, as well as the transition from mandatory to optional control over the constitutionality of laws adopted by Parliament before they are signed by the President. Particular attention is paid to the study of the development of specific constitutional control, taking into account a certain adjustment of the constitutional formula in 2022 with the aim of consistent development of the Belarusian model of constitutional justice within the framework of the European model. Attention is focused on the most important constitutional innovation of 2022 – the introduction of a constitutional complaint, which significantly expands citizens’ access to constitutional justice. It is concluded that each stage of the development of constitutional control in Belarus serves as an example of adaptation to the changing conditions of the functioning of constitutional justice. It has been established that the adjustment in 2022 of the Belarusian model of subsequent concrete constitutional control indicates a transformation of the Belarusian model of constitutional control, consisting of the abandonment of elements of a mixed model, and the current stage of the evolution of constitutional control in the Republic of Belarus demonstrates the transition from an abstract form of constitutional control to concrete constitutional control , which means an increasing role of the Constitutional Court not only as a guarantor of the supremacy of the Constitution, but also as a defender of individual rights and freedoms.
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Pinheiro, Hana Ferber Corezzi Ferrer. "As nuances do controle de constitucionalidade nos entes municipais com ênfase nas disposições jurisprudenciais." RCMOS - Revista Científica Multidisciplinar O Saber 3, no. 1 (January 22, 2024): 1–10. http://dx.doi.org/10.51473/ed.al.v3i1.566.
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The present work aims to study the nuances of judicial review in municipal entities, defi ning its parameters and emphasizing especially the jurisprudential constructions. For this purpose, the descriptive method was used, supported by research articles, bibliographical research of doctrinal works in jurisprudence of the Superior Courts, as well as materials available on the internet. These documents were then read and, through the results obtained, a broad, critical and refl ective discussion was carried out, which culminated in the general conclusion that the concentrated judicial review is applicable to municipal norms, but not fully, a since it has limited parameters. As a rule, the said control is carried out using the norms present in the State Constitution as a parameter, through the local Court of Justice, through the initiative of legitimate parties also provided for in the State Charter. Thus, only in the face of norms of mandatory reproduction is the Federal Constitution used as a parameter, for the purpose of controlling municipal constitutionality, avoiding confl icting decisions with the supreme norm of the Brazilian legal system. In this sense, it is important to highlight that this possibility arose from jurisprudential constructions, not being expressly provided for by law. In addition, despite the existence of doctrinal divergence, the impossibility of concentrated control of constitutionality using Municipal Organic Laws as a parameter has been demonstrated. That said, given municipal regulations that violate it, it should be restricted to legality control.
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Ferreira, Lívia Da Silva. "A questão prioritária de constitucionalidade do direito francês." Teoria Jurídica Contemporânea 2, no. 2 (June 12, 2018): 174. http://dx.doi.org/10.21875/tjc.v2i2.13057.
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<p class="Standard"><strong>RESUMO:</strong></p><p class="Standard"><strong></strong> O modelo francês serviu por anos como único exemplo no qual o controle de constitucionalidade era realizado de maneira preventiva. Em 2008 foi aprovada uma Lei Constitucional com o intuito de modernizar as instituições políticas da França, na qual estava incluída a criação do controle de constitucionalidade <em>a posteriori</em>, que mais tarde foi chamado de Questão Prioritária de Constitucionalidade - QPC. Esse mecanismo tem com principal objetivo conferir aos particulares a prerrogativa de contestar a constitucionalidade de um dispositivo legal que julguem ser violador de seus direitos e liberdades garantidos constitucionalmente. O presente trabalho tem como objetivo efetuar uma breve análise dos fatores que antecederam e influenciaram a reforma supracitada, além apontar consequências e dos efeitos gerados pela criação da QPC no direito francês.</p><p class="Standard" align="left"> </p><p class="Standard"><strong>ABSTRACT:</strong></p><p class="Standard"><strong> </strong>The French system of judicial review is very specific and for years was used as an example of the only system in which the compatibility exam between laws and the Constitution was performed preventively. In 2008 a constitutional amendment was approved in attempt to modernize the political institutions of France. One of its modernizing measures was the judicial review <em>a posteriori</em>, that later was called Priority Question of Constitutionality or priority preliminary rulings on the issue of constitutionality – QPC. This mechanism aims to confer on individuals the right to challenge the constitutionality of a legal provision they deem to be violating their constitutionally guaranteed rights and freedoms. The main goal of this essay is examine the factors that preceded and influenced this reform and the effects and consequences caused by QPC in French Law.</p><p class="Standard"><strong> </strong></p>
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Safjan, Marek. "Konstytucja marcowa – konstytucja paradoksów." Przegląd Konstytucyjny, no. 1 (2022) (June 2022): 7–23. http://dx.doi.org/10.4467/25442031pko.22.001.15727.
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The March constitution – a constitution of paradoxes This article presents a synthetic attempt to address the role that the March Constitution of 1921 has played in the development of the Polish constitutional thought. It discusses the achievements and the weaknesses of the March Constitution. On the one hand, its significant advantages included recognising a catalogue of fundamental rights, guaranteeing independence of the judiciary, introducing judicial control of administrative acts and state liability for breaches of law. On the other hand, its weaknesses lay in the lack of solutions to stabilise the position of the government, a broad and imprecisely defined status of decree laws, and the lack of constitutionality review of laws. The modern and democratic solutions of the March Constitution exceeded the level of advancement of the political and legal culture in the society, which led to abuse and distortion of its constitutional mechanisms, and to an inability to secure the rule of law.
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Yolcu, Serkan. "East Nordic Model of Pre-Enactment Constitutional Review: Comparative Evidence from Finland and Sweden." European Public Law 26, Issue 2 (June 1, 2020): 505–36. http://dx.doi.org/10.54648/euro2020053.
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For the last three decades, legal scholarship on the judicial review of legislation has dominated comparative constitutional studies. Moreover, one of the emerging interests in comparative constitutional law is pre-enactment (ex ante) control of constitutionality. Historically, legal thinking in the US has advanced judicial review, while British tradition has prioritized parliamentary sovereignty, in which parliament, not courts, is the ultimate decision maker related to constitutional disputes. The current scholarship, nevertheless, argues that a particular constitutional model has emerged in a number of Commonwealth countries in which courts and legislatures are not considered alternative to each other, contrary to the traditional paradigms that prioritize either courts or legislatures. One of the defining features of this model is the pre-enactment constitutional review of proposed legislation. In some of those countries, pre-enactment review of legislation is available only in the form of executive responsibility, while the legislature has a key role in the remaining countries, in addition to the commitment of the executive. This article investigates whether similar pre-enactment constitutional review mechanisms exist elsewhere. For this purpose, it will examine East Nordic constitutional practice and ask whether there is a particular type of pre-enactment constitutional review in Finland and Sweden. The function to review constitutionality of proposed legislation belongs to non-judicial mechanisms in both Finland and Sweden. However, pre-enactment constitutional review mechanisms in these two polities are hardly considered in comparative constitutional law. This article aims to fill this gap by drawing comparative scholars’ attention to the East Nordic constitutionalism. judicial review, comparative constitutional law, pre-enactment constitutional review, Nordic constitutionalism, Finland & Sweden
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Рудман, Марк Наумович, and Артур Разимович Туриянов. "FORMATION OF A PARLIAMENTARY MODEL OF CONSTITUTIONAL CONTROL IN THE BASIC LAWS OF THE USSR OF 1924 AND 1936." Rule-of-law state: theory and practice 18, no. 4(70) (January 19, 2023): 12–22. http://dx.doi.org/10.33184/pravgos-2022.4.2.
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The article studies the features of fixing the legal mechanism of constitutional control in the first two constitutions of the USSR. The analysis is based on the study ofthe approaches taken by wellknown legal scholars during the drafting of these constitutional acts, as well as the views of modern Russian constitutionalists on the essence and national specificity of the implementation ofthe ideas of constitutional control as an integral part of thesystem of constitutional governance. On the basis of a comparative legal analysis, the article reveals the evolution of the mechanism of constitutional control from judicial control in the Constitution of the USSR of 1924 to formal parliamentary control in the Constitution of the USSR of 1936. While recognizing the importance of the institution of constitutional controlas a necessary element of constitutional governance, the authors conclude that the single-party political regime in the USSR had a destructive effecton the very idea of constitutional governance. Despite attempts to create Soviet constitutionalism as a universal way of involving society in social construction, the influence of party power negated the meaning ofthe Soviet Constitution. The formalization of the content of constitutionalism and federalism under the Soviet state regime contributed to a complete loss ofthe importance of constitutional justice in the USSR of the pre-war period.
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Moulton, Anthony D., Richard A. Goodman, Kathy Cahill, and Edward L. Baker. "Public Health Legal Preparedness for the 21st Century." Journal of Law, Medicine & Ethics 30, no. 2 (2002): 141–43. http://dx.doi.org/10.1111/j.1748-720x.2002.tb00380.x.
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Law is indispensable to the public's health. The twentieth century proved this true as law contributed to each of the century's ten great public health achievements: vaccination, healthier mothers and babies, family planning, safer and healthier foods, fluoridation of drinking water, the control of infectious diseases, the decline in death from heart disease and stroke, recognition of tobacco use as a health hazard, motor vehicle safety, and safer workplaces.The readers of this journal can give examples of the relevant types of laws with ease: Jacobson v. Massachusetts, the 1905 U.S. Supreme Court case that upheld the constitutionality of compulsory vaccination; mandatory immunization for school admission; authorization of state prenatal care programs; mandatory fortification of foods; Title X of the Public Health Service Act; the Pure Food and Drugs Act of 1906; the Safe Drinking Water Act of 1974, and hundreds of state and local enactments regulating food; fluoridation ordinanceswater, and sanitation; the Surgeon General's warning notices on cigarette packs and restrictions on marketing tobacco; seat belt laws and mandated vehicle and highway design features; and laws like the federal Occupational Safety and Health Act of 1970 that regulate working conditions.
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Tafani, Ismail, and Renata Tokrri. "Some Reflections on the Constitutional Review in Albania in a Comparison Key." Mediterranean Journal of Social Sciences 12, no. 2 (March 7, 2021): 22. http://dx.doi.org/10.36941/mjss-2021-0009.
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In this study we will try to analyze the foundations of the Constitution as a pillar and as a guarantee for its solidity. The study will also address the need for revision of the constitution as a fundamental element of its existence and continuity. Particular emphasis will be given to the comparison of the constitutions of the most important countries in the world as regards the procedures and limits to the constitutional revision. In this sense, the constitutions of some Balkan Peninsula countries will be analyzed to draw a comparison and analyze the Albanian Constitution as regards the procedure for its revision. The study intends to analyze the procedures for the revision of the Constitution as well as the explicit and implicit limits to these revisions. In the Constitutional revision in Albania in 2016, the role of the Constitutional Court on the control of the constitutional legitimacy of constitutional revision laws was clarified. Formal constitutionality is usually emphasized since the Albanian constitutional reform underlined that the Constitutional Court in Albania could express itself on the constitutionality of the Constitutional revision law only from a formal point of view.
Received: 2 January 2021 / Accepted: 27 February 2021 / Published: 7 March 2021
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BRANCO, Paulo Gonet, and Ilton Norberto ROBL FILHO. "JUDICIAL REVIEW OF LEGISLATION BY ADMINISTRATIVE BODIES AND NATIONAL COUNCIL OF JUSTICE: LIMITS AND POSSIBILITIES IN DIALOGUE WITH CONSTITUTIONAL JURISDICTION." Revista Juridica 4, no. 57 (October 5, 2019): 221. http://dx.doi.org/10.21902/revistajur.2316-753x.v4i57.3763.
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ABSTRACT Objectives: The constitutional powers of the National Council of Justice challenge a constitutionally appropriate interpretation of its functions and constitutional consequences. This article analyzes the incidental control of constitutionality of administrative acts by such Council, based on article 37 of the Constitution of 1988, with the possibility to decline application of the law interpreted as unconstitutional. Methodology: The methodology used in this study is phenomenological-hermeneutic with literature review and analysis of the jurisprudence of the National Council of Justice and the Federal Supreme Court. Results:The thesis sustained in this paper states that the control of constitutionality of laws by administrative bodies loses relevance with the adoption of a robust system of judicial review in incidental and abstract forms, as currently observed in Brazil. On the other hand, exceptionally, due to the powers of article 103-B, I and II of § 4 of the Federal Constitution, the National Council of Justice may carry out judicial review by administrative bodies, having as its control parameter especially article 37 of Federal Constitution, but with limitations and due deference to the precedents of the Federal Supreme Court to apply the constitutional principles of government and to resolve the conflict between constitutional norms. Contributions: The study mentions the peculiarities of the National Council of Justice (instituted by Constitutional Amendment No. 45/2004) that are of special interest to analyze its institutional design and its place in rule of law, discussing the possibility of judicial review of administrative acts by the National Council of Justice with the nonapplication of laws not yet declared unconstitutional by the Courts.KEYWORDS: National Council of Justice; judicial review by administrative bodies; jurisdiction; Federal Supreme Court. RESUMO Objetivos: As competências constitucionais do Conselho Nacional de Justiça desafiam uma interpretação constitucionalmente adequada das funções e das suas consequências constitucionais. Este artigo analisa o controle incidental de constitucionalidade dos atos administrativos do mencionado Conselho, a partir do art. 37 da Constituição de 1988, com a possibilidade de afastamento da lei interpretada como inconstitucional. Metodologia: A metodologia utilizada neste estudo é fenomenológico-hermenêutica com revisão da literatura e análise da jurisprudência do Conselho Nacional de Justiça e do Supremo Tribunal Federal. Resultados:A tese sustentada neste trabalho afirma que o controle de constitucionalidade de leis por órgãos administrativos perde relevância com a adoção de robusto sistema de controle judicial de constitucionalidade nas modalidades incidental e abstrata, conforme se observa atualmente no Brasil. De outro lado, excepcionalmente em razão das competências dos incisos I e II do § 4º. do art. 103B, da Constituição de 1988, o Conselho Nacional de Justiça pode realizar controle administrativo de constitucionalidade, tendo como parâmetro de controle especialmente o art. 37 da Constituição de 1988, mas tendo limite e devendo deferência à jurisprudência do Supremo Tribunal Federal para concretizar os princípios constitucionais da administração pública e para solucionar a colisão entre normas constitucionais. Contribuições: O estudo traz as peculiaridades do Conselho Nacional de Justiça (instituído pela Emenda Constitucional nº. 45/2004), que são de especial interesse para analisar-se sua estrutura institucional e seu lugar no regramento do Direito ao discutir a possibilidade de revisão judicial de atos administrativos pel Conselho Nacional de Justiça co a não aplicação de leis ainda não declaradas inconstitucionais pelos tribunais. PALAVRAS-CHAVE: Conselho Nacional de Justiça; controle de constitucionalidade administrativo; jurisdição; Supremo Tribunal Federal.
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Galyaeva, Irina. "Preliminary constitutional control of laws in the constitutional history of Russia: has there been continuity?" Sravnitel noe konstitucionnoe obozrenie 31, no. 1 (2022): 164–83. https://doi.org/10.21128/1812-7126-2022-1-164-183.
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Ascertainment of the historical basis of the 2020 Constitutional reforms is as important as studying the constitutional amendments themselves. In this connection it’s necessary to evaluate the experience of the functioning of preliminary constitutional control, authority for which is vested in the Constitutional Court of Russia. This research provides two main conclusions. First, even if this kind of control or review had been regulated by law, it was not exercised, either by the Governing Senate of the Russian Empire or the Committee of Constitutional Review of the USSR. Second, in the Soviet and Post-Soviet history of Russia there were cases of using preliminary constitutional control as special non-judicial methods of overseeing laws’ constitutionality, with control exercised by standing commissions of Soviet representative bodies and then formal preliminary oversight of laws exercised by the President of Russia in the 1990s). However, in Russia’s latest constitutional history this institution is not favored. There has been the direct prohibition of preliminary constitutional control in regard to the Constitutional Court of the RSFSR, the judiciary’s negative attitude towards this institution during drafting of the Law on the Constitutional Court of the Russian Federation, and the established practice of the Constitutional Court of the Russian Federation on the inadmissibility of preliminary control of federal and regional laws. At the level of the constituent entities of the Russian Federation, despite the establishment of a sufficient number of constitutional (charter) courts and their relatively long-term activity, their preliminary constitutional control of the laws of the constituent entities of the Russian Federation has not happened. After the constitutional reform of 2020, preliminary non-judicial control or review of the laws of the constituent entities of the Russian Federation can be implemented when constituent entities of the Russian Federation create constitutional (charter) councils attached to regional legislative government bodies, but delineation by the Russian Constitutional Court of the relevant competence will be required. Concerning the factors reviewed here, it appears that preliminary constitutional control as introduced in our country does not have a historical basis in relation to our institutions. Moreover, it appears that the strong negative attitude to preliminary constitutional review that exists in our country can preclude its broad implementation.
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Silverstein, Helena. "Road Closed: Evaluating the Judicial Bypass Provision of the Pennsylvania Abortion Control Act." Law & Social Inquiry 24, no. 01 (1999): 73–96. http://dx.doi.org/10.1111/j.1747-4469.1999.tb00793.x.
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This paper examines the extent to which Pennsylvania county courts are prepared to implement the judicial bypass provision of the state's abortion statute. Under the Pennsylvania Abortion Control Act it is illegal for physicians to perform abortions on pregnant minors without parental consent. The constitutionality of this requirement has been upheld, but only when states provide a mechanism allowing a minor to bypass parental involvement. The Pennsylvania statute includes a judicial bypass provision that is formally consistent with legal precedent. However, based on a study of how county courts respond to inquiries into the judicial bypass procedure, this paper demonstrates that most courthouses are not prepared to implement or provide accurate information on bypass proceedings. Since the constitutionality of parental involvement requirements is conditioned on the availability of a bypass option, the paper argues that the courts' lack of readiness poses a significant threat to the rights of pregnant minors.
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Mokhtar, Khairil Azmin. "THE DEATH KNELL OF ENVIRONMENTAL TOBACCO SMOKE AT PUBLIC SPACES: CONSTITUTIONALITY OF SMOKING RESTRICTIONS AND SMOKE-FREE ZONE LAWS IN MALAYSIA." UUM Journal of Legal Studies 12, Number 2 (July 5, 2021): 89–114. http://dx.doi.org/10.32890/uumjls2021.12.2.5.
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Control of tobacco faces a huge obstacle because it is where important health issue has to face the powerful opposition from the wealth influence of tobacco industries (TI). Death and disease caused by tobacco use now constitute a pandemic. Unfortunately, the power and impact of tobacco’s nature and commerce of its addiction make tobacco control a contentious issue of public health. The task of curbing the tobacco pandemic becomes more challenging with the use of human rights arguments and constitutional issues by smokers and the TI. This is a qualitative research on medical and legal aspects of tobacco use and smoking. This paper examines the origin of tobacco and its use as well as the development of scientific and medical reports relating to the effect of tobacco use particularly smoking. It also demonstrates how national and global policies relating to tobacco were formulated based on the scientific findings and medical reports by giving priority to public health. This is also a legal research relating to international legal framework of tobacco control, namely the WHO Framework Convention on Tobacco Control (WHO FCTC), and the legal regulations relating to tobacco control in Malaysia as well as its enforcement strategies. The legal challenge mounted against the law and policy restricting tobacco use is also examined. The study shows the implementation of WHO FCTC is crucial in fighting tobacco pandemic. The convention also upheld the right of the people to breathe fresh and clean air by prohibiting environmental tobacco smoke (ETS) exposure in public spaces. Thus, the right must be respected by smokers and must not be infringed upon. The decision of the court is lauded because the law and policy relating to tobacco control are in line with rights guaranteed by the Federal Constitution and in tandem with WHO FCTC of which Malaysia is a party.
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Sagynbekova, Gulnar, Aigul Ibraeva, Aidar Saitbekov, Soledad Dyussebaliyeva, and Dauren Makhambetsaliyev. "Comparative characteristics of constitutional and judicial law-making (on the example of Republic of Kazakhstan and USA)." Scientific Herald of Uzhhorod University Series Physics, no. 55 (February 11, 2024): 2729–40. http://dx.doi.org/10.54919/physics/55.2024.272ay9.
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Relevance. The Republic of Kazakhstan experienced an authoritarian regime that shaped a bureaucratic approach to the rule of law. Therefore, the application of positive experience in the formation of a democratic society, the study of the constitutional law of the USA, should serve as a criterion for the formation of one�s own constitutional traditions.Purpose. The purpose of the work is to identify the main tasks, ways and methods of law-making of the judicial branch of government in the law-making of the legal state of the Republic of Kazakhstan in comparison with the USA.Methodology. With the help of methods of analysis and synthesis, the main functions of the country�s judiciary within the framework of constitutional law, which determine the vector of development of the constitutional state, were determined. Using a comparative analysis, the relevant aspects of the formation of a democratic state were considered.Results. In the course of the study, examples of court decisions that created judicial practice and deepened experience in the field of judicial control over the constitutionality of laws in general and judicial control over amendments to the Constitution were considered. On the basis of common features, the main regularities of the evolution of law-making with the participation of the judiciary have been determined. The issue of the need to improve the mechanisms of courts� participation in the processes of development of the institution of constitutionalism was raised.Conclusions. The practical significance of the study lies in the identification of new forms of state regulation in the law-making system with the direct participation of courts of various branches of the Republic of Kazakhstan, as well as in the identification of shortcomings in the Constitution in terms of the regulation of court activities and their influence on the formation of legislative documents.
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Saleh, Gazalba. "The Constitutionality of the Electronic Information and Transaction Law: Towards Overcoming SARA Conflict on Social Media." Jurnal Konstitusi 18, no. 4 (February 17, 2022): 846. http://dx.doi.org/10.31078/jk1846.
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The subsistence of the Electronic Transaction and Information Law control and manage the illicit offenses related to the multiplication of concerns that hold Ethnicity, Religion, Race, and Intergroup (SARA) . Following the idea of law developed by practicality as a way of social regeneration. It is a legal normative investigation utilizing theoretical concurrence and laws. This research is a logical description by using qualitative information examination. The study revealed that content that contains SARA issues is referred to as a hatred statement, which can be construed as an act of communication, carried out by groups or individuals in the form of aggravation and endangered to throw the scandalous actor to prison for utmost six years and a fine of 1.000.000.000 rupiahs. Additionally, the accomplishment of the permissible authority of the Electronic Transaction and Information Law can be classified as non-implementation of the law authenticity establishment as shown from the culture that was not able to go after the rules made by law. It means that this law did not yet have a legal effect. This investigation advocates that society needs to behave by following the officially permitted rules, explained in the Electronic Transaction and Information Law.
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Furlan, Cassio Andrei Vargas, and Daiana Schuch. "O VÍCIO DE DECORO PARLAMENTAR NA EMENDA CONSTITUCIONAL Nº 41/2003." Ponto de Vista Jurídico 7, no. 2 (December 20, 2018): 100. http://dx.doi.org/10.33362/juridico.v7i2.1636.
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<p class="resumo"><strong>Resumo:</strong> O presente artigo visa elaborar um entendimento sobre a constitucionalidade da Emenda Constitucional Nº 41/2003, que trata da Reforma da Previdência. O objetivo geral da pesquisa é investigar a situação política brasileira e a falta de decoro parlamentar e a compra de votos na aprovação de Emendas Constitucionais. São objetivos específicos: analisar como a consequente falta de decoro pode influenciar no processo legislativo; esmiuçar acerca da supremacia da constituição bem como o controle de constitucionalidade das leis; e constatar a possibilidade, em caso de comprovação da compra de votos e o reconhecimento da inconstitucionalidade por vicio de decoro parlamentar, qual será o posicionamento do Supremo Tribunal Federal. Num primeiro momento, conclui-se que diante dos vícios, além de ser desrespeitado o §1º do Art. 55 da Constituição Federal que trata do comportamento exigido aos representantes do povo, também foram golpeados princípios constitucionais da moralidade pública e da soberania popular, pois prevaleceram interesses individuais aos dos mandatários do processo legislativo, que é o povo.</p><p class="resumo"><strong>Palavras-chave:</strong> Constitucionalidade; Emenda constitucional 41/2003; Supremo Tribunal Federal.</p><h3><br /> THE ADDITION OF DECORUM PARLAMENTAR IN THE CONSTITUTIONAL AMENDMENT Nº 41/2003</h3><div><p class="abstractCxSpFirst"><strong>Abstract: </strong>This article aims to elaborate an understanding on the constitutionality of Constitutional Amendment No. 41/2003, which deals with Pension Reform. It is presented as a monograph meeting the mandatory requirement to obtain a Bachelor of Law degree from UNIARP - Alto Vale University of Rio do Peixe. The general objective of the research is to investigate the Brazilian political situation and the lack of parliamentary decorum and the purchase of votes in the approval of Constitutional Amendments. Specific objectives are: to analyze how the consequent lack of decorum can influence the legislative process; to think about the supremacy of the constitution as well as the control of the constitutionality of laws; and to verify the possibility, in case of proof of the purchase of votes and the recognition of unconstitutionality por vice of parliamentary decorum, what will be the position of the Federal Supreme Court.</p><p class="abstractCxSpLast"><strong>KEY WORDS: </strong>Constitutionality; Constitutional amendment 41/2003; Federal Court of Justice.</p></div>
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Nalle, Victor Imanuel W. "The Scope of Discretion in Government Administration Law: Constitutional or Unconstitutional?" Hasanuddin Law Review 4, no. 1 (April 7, 2018): 1. http://dx.doi.org/10.20956/halrev.v4i1.1316.
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Law No. 30 of 2014 on Government Administration (Government Administration Law) has set the scope of discretion in Indonesian legal system. But the form of discretion is limited in scope government decision (KTUN) and factual actions of the government. The restriction implicates circulars or others policy rule is not a form of discretion. In addition, the provisions concerning the terms of use discretion, procedures and legal effect of discretion in the Government Administration Law are not applicable to the use of policy rule. In fact, the substance of discretion in policy rule (e.g. circulars and instructions) has the potential of conflicting laws and regulations and/or General Principles of Good Administration. The legal issues in this study are the constitutionality of the scope of discretion in Article 1 point 9 and Article 23 paragraph (1) of the Government Administration Law. This analysis showed that limits the scope of discretion in Government Administration Law contrary to formal elements, substantive, and control mechanisms within the rule of law. This analysis also suggests the expansion of the scope of discretion in the Government Administration Law and setting policy rules as the object of the petition for judicial review so that there is a control mechanism by trial to discretion in the form of policy rule.
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Petrov, Aleksei A. "Law enforcement practice as an object of constitutional judicial assessment in the Russian Federation: Background, experience, problems." Vestnik of Saint Petersburg University. Law 14, no. 3 (2023): 668–85. http://dx.doi.org/10.21638/spbu14.2023.307.
Full textAbstract:
Turning to law enforcement practice has been and remains an important component of the activities of the Russian Constitutional Court. At the first stage of the history of the Russian judicial constitutional control — during the period of the Constitution (Basic Law) of the Russian Federation — Russia of 1978 and the RSFSR Law of July 12, 1991 No. 1599-I “On the Constitutional Court of the RSFSR” — consideration of cases on checking the constitutionality of law enforcement practice was separate authority of the Constitutional Court. In these conditions, law enforcement practice was the direct object of judicial constitutional review. With the adoption of the Constitution of the Russian Federation of 1993 and the Federal Constitutional Law of July 21, 1994 No. 1-FKZ “On the Constitutional Court of the Russian Federation”, the verification of the constitutionality of law enforcement practice was excluded from the competence of the Constitutional Court. At present, the Constitutional Court, while checking the constitutionality of legal acts, actively uses law enforcement practice as one of the means of establishing the meaning of the contested acts. The article shows that the Constitutional Court is constantly faces with the problems of defining the concept of law enforcement practice, which can receive different content in different situations. The question of the criteria under which law enforcement practice should be recognized as established is also unclear. Nevertheless, the importance of law enforcement practice for the activities of the Constitutional Court is generally increasing, which is confirmed, among other things, by the amendments made to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” in 2020. The conclusion is substantiated that the appeal to law enforcement practice contributes to the adoption of more motivated and balanced decisions by the Constitutional Court.
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Vidal Marín, Tomás. "Técnica legislativa, inserción de la norma en el ordenamiento jurídico y Tribunal Constitucional = Legislative drafting : incorporation of the norm into the legal system and Constitutional Court." Teoría y Realidad Constitucional, no. 31 (January 1, 2013): 323. http://dx.doi.org/10.5944/trc.31.2013.10311.
Full textAbstract:
The incorporation of the norm into the Legal system can originate negative effects on the juridical certainty. Exactly, the present study analyzes whether is possible the control of constitutionality of the quality of law in the Spanish Legal system as a solution or remedy to the described situation.La inserción de las normas en el ordenamiento jurídico puede producir efectos negativos sobre la certeza del Derecho. Justamente, el presente estudio analiza si es posible el control de constitucionalidad de la calidad de la ley en el ordenamiento jurídico español en tanto que solución o remedio a la situación descrita.
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الخفاجي, م. د. احمد علي عبود. "رقابة الامتناع عن تطبيق القانون غير الدستوري الولايات المتحدة الامريكية انموذجاً." مجلة المعهد, no. 1 (August 4, 2023): 257–82. http://dx.doi.org/10.61353/ma.0000257.
Full textAbstract:
يحدد الدستور في قواعده الأحكام والمبادئ الملزمة لكل من الحُكّام والمحكومين على السواء، أي لكل من السلطات العامة والمخاطبين بأعمالها السلطوية العامة الملزمة، تلك الأحكـام والمـبادئ المنصبة على كـل من طائفتي الحقوق والحريات، بحيث لا تملك أيّاً من السلطات العامة والهيئات القائمة على أمرها الخروج عليها أو انتهاكها بل أنها ملزمة على العكس بالمحافظة عليها وضمان توفيرها، ومن خلال هذه الفكرة ساد منطق تقيد سلطات الدولة بأحكام الدستور، إذ يمثل الخروج عليه جوهر فكرة الرقابة على الدستورية. ومن الجدير بالذكر أنَّ اختصاص القضاء الأمريكي في بحث دستورية القوانين يخضع للضوابط التي وضعتها المحكمة العليا عام 1936، وتتلخص هذه الضوابط أنه لا يجوز للقضاء أن يبحث في دستورية قانون ما إلاّ عند تطبيق أحكامه على خصومة قضائية، ولا يجوز للقضاء أن يحكم بعدم دستورية قانون ما إلاّ بناءً على طعن مقدم من أحد أطراف الخصومة، له مصلحة بذلك، لذا قسمنا هذه الدراسة على مبحثين، إذ بحثنا في المبحث الأول مضمون الامتناع عن تطبيق القانون غير الدستوري، وخصصنا المبحث الثاني لدراسة شروط الامتناع عن تطبيق القانون غير الدستوري.
The Constitution sets out the rules of the provisions and principles binding both rulers and ruled alike, for each of the public authorities and the target audience to its work public authoritarian binding, those provisions and principles-proclaimed all of my sect rights and freedoms, so as not to have any of the public authorities and bodies on her exit them or violated but they are binding on the contrary, to maintain them and to ensure the provision, and through this idea prevailed logic state authorities restrict the provisions of the Constitution, because it represents the essence of the idea of going out on the constitutional control.
It is worth mentioning that the jurisdiction of US courts on the constitutionality of laws Search is subject to controls established by the Supreme Court in 1936, these controls are summarized it is not permissible to eliminate that looking at the constitutionality of a law only when the application of its provisions on the litigation, and may not be to eliminate that ruled unconstitutional a law However, based on the appeal submitted by one of the parties to the litigation, have an interest in this, so this study, we divided the two sections, as we discussed in the first part, content to refrain from applying the law is constitutional, the second part dedicated to the study of the conditions to refrain from applying the law unconstitutional.
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Lytvynenko, Anatoliy A., and Jevgenij G. Machovenko. "The Interpretation of the Norms of the 1922 Constitution of Lithuania by the Supreme Tribunal." Bratislava Law Review 8, no. 2 (December 31, 2024): 177–98. https://doi.org/10.46282/blr.2024.8.2.849.
Full textAbstract:
There were six constitutions in the Republic of Lithuania during the period of 1918-1940: three provisional ones (enacted in 1918, 1919, and 1920) and three permanent ones (enacted in 1922, 1928, and 1938). A body of constitutional control, such as a constitutional court or a distinct highest administrative court did not exist those days. The surviving factual material gives grounds to assert that it is necessary to systematize the interpretation of the norms of the Constitutions that were in force in the Republic of Lithuania in the period of 1918-1940 mainly owing to the judgments and rulings of the Supreme Tribunal of the Republic of Lithuania, which carried out the interpretation of the norms of the Constitution and laws either in the context of solving civil, administrative and criminal cases, cases on issues of disciplinary liability of lawyers, and in rulings on requests for interpretation of the Constitution and laws by state institutions and courts. The first provisional Constitution (1918) established (in Article 24) that "In areas where the State of Lithuania has not issued new laws, those that existed before the war are temporarily left, as long as they do not contradict the basic laws of the Provisional Constitution". Applying the pre-war law, the Supreme Tribunal checked its constitutionality every time, which means it interpreted both the law and the constitution. Therefore, it can be said that the practice of the court in the interpretation of the constitution is very abundant. However, the Supreme Tribunal very rarely publicly interpreted the constitution, i.e., expressed his opinion expressis verbis, addressed it to other courts. The Supreme Tribunal could not strike down a law that contradicted the Constitution, but the refusal to apply the law was a message to other state institutions (but only the lower courts had to follow the Supreme Tribunal's position, and the executive authorities and parliament could have a different opinion). The paper represents an analysis of the cases, which were adjudicated by the Supreme Tribunal of the Republic of Lithuania in 1923-1928, where the Court discussed the application of the norms of the Constitution and their interpretation according to some peculiar legal disputes.
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Perez-Leon-Acevedo, Juan Pablo. "The control of the Inter-American Court of Human Rights over amnesty laws and other exemption measures: Legitimacy assessment." Leiden Journal of International Law 33, no. 3 (June 9, 2020): 667–87. http://dx.doi.org/10.1017/s092215652000028x.
Full textAbstract:
AbstractIn 2001, the Inter-American Court of Human Rights (IACtHR) seminally found self-amnesty laws on serious human rights violations to be null and void. However, later national reactions showed that this supranational control has faced challenges. Such supranational judicial authority has been exercised where amnesty laws and other exemption measures blocked judicial cases, democratic referendums upheld legislation, and peace-making processes existed.This article seeks to determine whether the traditionally interventionist jurisprudence of the IACtHR on amnesty laws/exemption measures has been legitimate under global constitutionalism standards. The standards considered are: human rights, namely, rights of victims of mass atrocities; consistency or coherence of this jurisprudence with international, regional and national practices; and democratic legitimacy and/or accountability considerations.Victim rights have underlain the IACtHR’s jurisprudence on amnesty laws and similar measures. Importantly, developments on victim rights are not exclusive to the IACtHR as case law of other supranational human rights bodies evidences. Among human rights courts and bodies, the IACtHR has exercised the highest level of control over amnesty laws/exemption measures, even nullifying national legislation. However, the IACtHR’s case law shares common principles with UN/regional jurisprudential developments and domestic practices in terms of inadmissibility of amnesties and other exemption measures in cases of serious abuses. Unlike the European Court of Human Rights (ECtHR), the IACtHR has not deferred to sovereign state appreciation (conventionality control doctrine). Nevertheless, the IACtHR has arguably begun to move towards more ‘moderated’ approaches. This is advisable under democratic legitimacy considerations.
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Karaev, A. A., and A. R. Kalimbekova. "Theoretical issues of constitutional review as a tool for improving the legislative process." Scientific works "Adilet", no. 4 (2020): 16–21. http://dx.doi.org/10.54649/2077-9860-2020-4-16-21.
Full textAbstract:
The article examines the preliminary constitutional control of laws as an effective tool for effective protection of the constitutional order, ensuring the unity of legislation and maintaining a balance of interests between the President and the branches of government in the legislative sphere. Modern legal systems, for various reasons and circumstances, contain many legislative acts that need timely and professional verification for constitutionality. The authors draw attention to the role of constitutional control, decisions of the Constitutional Council, which act as a means by which the stability of the political system is ensured, as well as to the shortcomings when the Constitutional Council is given the opportunity to indirectly "invade" the competence of the legislator if the law is recognized as inconsistent with the Constitution. Constitutional control obliges the legislator and other participants in the legislative process not only to comply with the norms and principles of the Constitution, but also imposes certain restrictions, taking into account political practice. Declaring an act of Parliament unconstitutional is one of the forms of constitutional responsibility. It is concluded that control in this area should be considered as an indicator of the quality of the work of the highest authorities involved in the legislative process. Attention is drawn to the determination of the legal nature of the act of the Constitutional Council, in the order of preliminary control, which recognizes the law adopted by the Parliament as inappropriate, but which has not entered into legal force. It is also concluded that different legal traditions in practice have given rise to different interpretations of the concept of "unconstitutionality", and the main differences mainly relate to the forms of control and the consequences of decisions taken.
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Ruffert, Matthias, and Päivi Leino-Sandberg. "Next Generation EU and its constitutional ramifications: A critical assessment." Common Market Law Review 59, Issue 2 (April 1, 2022): 433–72. http://dx.doi.org/10.54648/cola2022031.
Full textAbstract:
Following the early turmoil of the COVID-19 pandemic on societies in Europe, the foundations of financing the European Union have been overturned. In this article, we demonstrate the magnitude of change that Next Generation EU (NGEU) creates. While explained as exceptional and justified with reference to the pandemic, in substance, the NGEU is not a crisis measure. It will change the reading of EU law permanently by establishing a new type of instrument for redistribution between the Member States and funding this through debt. This article argues that consensus among large Member States and key institutional stakeholders is insufficient for disregarding key Treaty principles. We scrutinize the regulating capacity of EU constitutional law in relation to that consent and discuss the control of constitutionality by the Court of Justice, the role of national constitutional bodies, and the effect of the package on institutional balance. Finally, the role of EU scholarship is considered in relation to such a profound shift in the EU’s constitutional fabric. COVID-19 pandemic, finance, Next Generation EU, NGEU, crisis measures, debt funding, Treaty principles, constitutionality, role of national constitutional bodies, EU scholarship
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Zhanuzakova, Leila Telmanovna, Bakhytzhan Zhursunovich Kuandykov, and Yernar Adam. "ON CONSIDERATION OF REGULATORY LEGAL ACTS FOR COMPLIANCE WITH THE CONSTITUTION AND LAWS IN THE CONSTITUTIONAL AND ADMINISTRATIVE COURTS." Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan 80, no. 1 (March 28, 2025): 26–37. https://doi.org/10.52026/2788-5291_2025_80_1_26.
Full textAbstract:
The article is devoted to one of the current problems of the general theory of law, constitutional law, administrative process - disputes about verification of compliance with the constitution and laws of regulatory legal acts in constitutional and administrative courts. The paper examines theoretical approaches to this problem, that exist in domestic and foreign scientific legal literature, conducts a critical analysis of the norms of the Constitution of the Republic of Kazakhstan, national legislation on constitutional, administrative and civil proceedings and the practice of its application, and also examines foreign experience of legal regulation in a comparative manner powers of bodies of constitutional and administrative justice, courts of general jurisdiction. On this basis, certain contradictions, gaps, inaccuracies and other shortcomings in the legal support for the activities of the Constitutional Court and administrative courts of Kazakhstan have been identified. Thus, the Civil Procedure Code does not define which normative legal acts can be challenged from the point of view of their legality in court. The question is also raised about the excessive powers of the President, allowing him to submit to the Constitutional Court submissions on the compliance of the Constitution not only with laws in the order of preliminary and subsequent control, but also with existing legal acts of any state bodies, which, in essence, violates the principle of separation of powers. There is an inaccuracy in the definition of the form of government in the Constitution of the Republic, which makes it possible to challenge in the Constitutional Court the constitutionality of the law amending the Constitution, establishing the immutability of the form of government. This made it possible to develop and substantiate a number of recommendations aimed at improving legislation.
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Di Capua, Viviana. "The Protection of Fundamental Rights by the Constitutional Court in the Republic of Latvia. Perspectives, Opportunities and Limits of an Introduction of the Model in Italy." Journal of the University of Latvia. Law 16 (October 16, 2023): 195–211. http://dx.doi.org/10.22364/jull.16.12.
Full textAbstract:
The contribution aims to analyse the constitutional complaint in the Republic of Latvia, a particular type of appeal to the Constitutional Court that can be filed by an individual directly, without any intermediation, if a legal norm that conflicts with a hierarchically superordinate source has caused a violation of one of his or her fundamental rights provided for in the Constitution the Republic of Latvia of 15 February 1992 (Satversme). The objective will be to explore, also through the examination of constitutional jurisprudence, the adequacy of this technique of protecting fundamental rights in the Republic of Latvia, the possible development of the legal system through the referral to the Latvian Constitutional Court of issues that should have been dealt with by the legislature, and its exportability in the Italian legal system. With regard to this last profile, we will proceed to examine the obstacles to the introduction of some form of direct access to the Constitutional Court, represented not already by Article 134 of the Constitution (which, notoriously, provides for the jurisdiction of the constitutional court “over disputes relating to the constitutional legitimacy of laws and acts, having the force of law, of the State and the Regions”), but by Constitutional Law no. 1 of 1948 and Law No. 87 of 1953, which structure the control of constitutionality exclusively on incidental access (“in the course of a judgment”) and by the model of protection of fundamental rights outlined by the Constitution, in which the function of protection is attributed to the ordinary judge and, in cases of exclusive jurisdiction, to the administrative judge. Finally, special attention will be paid to the constitutional jurisprudence on election laws, which, according to some, would have legitimized the introduction in the national system of a direct appeal “disguised” as an incidental appeal.