Constitutional Court Research Articles

The Hungarian Retail Sales Tax in the Changing EU Context

In the last twenty years, Hungary has had three periods of special taxes (introduced as a result of the crises), but before and after 2010, and after the recession following the COVID-19 epidemic and the Russian-Ukrainian war, there were different legal policy reasons behind special taxes (including the retail sales tax). This raises questions as to whether the regulatory solutions implemented to address market failures during the first period are playing the same role today as they did in the past, and how their role has changed over the years. The introduced taxes often remain part of the general tax system, i.e. they are applied on a permanent basis (rather than on a temporary basis, as is usual with special taxes), and in 2023 they already accounted for almost 14% of total tax revenue (a higher proportion than, for example, corporate tax), which puts their role in the tax system in a different light. The Court of Justice of the European Union (CJEU) has repeatedly examined the EU framework, but it appears that the control has been weakened, mainly due to the impact of the current crises. At the same time, the Hungarian Constitutional Court is bound by the limits of the debt brake when examining the constitutional framework. The study explores the regulation of the Hungarian retail sales tax and its EU context, in particular with regard to the changes triggered by the crises. The introduced taxes often remain part of the general tax system, i.e. they are not applied on a temporary basis, and in 2023 they already accounted for almost 14% of total tax revenue (a higher rate than, for example, corporate tax), which puts their place in the tax system in a different light. The Court of Justice of the European Union (CJEU) has repeatedly examined the EU framework, but it appears that the control has been weakened, mainly due to the impact of the current crises, while the Hungarian Constitutional Court is bound by the limits of the debt brake when examining the constitutional framework.The study deals with the regulation of the Hungarian retail sales tax and its EU context, in particular with regard to the changes induced by the crises.

Permohonan Itsbat Nikah Untuk Perkawinan Kedua oleh Istri yang Bercerai di Luar Pengadilan Agama (Studi Kasus Padang Pariaman)

Divorces outside the court often occur, resulting in the marriage status remaining valid according to Indonesian positive law. This leads couples who wish to remarry to do so clandestinely and seek marital validation through the religious court. Therefore, the purpose of this research is to understand the process of resolving itsbat nikah petitions for second marriages by wives who divorced outside the court and the legal consequences for the parties from the rejection of itsbat nikah by the religious court. This research employs an empirical juridical method focusing on field realities related to applicable legal aspects. Data analysis is conducted qualitatively to depict the research subjects and objects, with theories developed from the acquired data. The research findings indicate that the itsbat nikah process begins with a petition to the pusbakum, revealing that the couple were single before their secret marriage in 2007. However, during the trial, it was revealed that the wife had legally married in the Office of Religious Affairs (KUA) in 2004 and divorced outside the court in the same year, resulting in the rejection of the itsbat nikah petition. Consequently, the wife's post-divorce iddah maintenance rights are lost, but the child's legal status remains recognized, in accordance with Constitutional Court Decision No. 46/PUU-VII/2010.

Legal Morality of Constitutional Court Decision Number 90/PUU-XXI/2023 Based on Pancasila

Legal Morality of Constitutional Court Decision Number 90/PUU-XXI/2023 Based on Pancasila

Место науки конституционного права в системе юридического знания: преодоление границ формальной науки

Introduction. The article is devoted to the study of the role of modern constitutional law in the system of sectoral legal sciences. The author notes that jurisprudence in general is a formal science, the subject of which are formal systems, which, mainly, it postulates itself - specific branches of law. Until a certain period (the formation of the Constitutional Court of the Russian Federation and the adoption of the new Constitution of the Russian Federation) state law could also be considered as a sectoral science, the subject of which was mostly the system of state power organisation. However, unlike mathematics (which is also a formal science), jurisprudence possesses regulatory potential and relates to the impact on human behavior. In this way it cannot be encapsulated exclusively in the system of legal constructions outside the «life world». Research methods. A set of methods was used in the work: analysis and synthesis, induction and deduction, dialectical approach, method of comparative jurisprudence. Results. The author proves that the special role of constitutional law in the modern stage of development is that, on the one hand, through processes of constitutionalisation of other branches of law constitutional law claims to be a general system. In a certain sense, the science of constitutional law is gradually taking the place of theory of law in legal epistemology.

Принципы всеобщего и равного избирательного права в актах Конституционного Суда Российской Федерации

Principles of the universal and equal electoral right constitute the basis of relations in the sphere of exercising of rights of citizens to participation in management of affairs of the state and are traditionally well studied by the constitutional law science. At the same time, application of such principles primarily in the practice of the national constitutional control authority serves as an important benchmark for the law enforcement practice of election organizers and general jurisdiction courts designed to solve the arising electoral disputes in an expeditious manner. The presented article illustrates positions of the Constitutional Court of the Russian Federation that the author believes describe the studied principles most fully, including from the standpoint of their impact on evaluations of contemporary digital electoral technologies and matters of candidacy list forms relevant in the autumn elections of 2024.

Zmiany w systemach wyborczych państw Europy Środkowej i Wschodniej

Attention should be paid to the constant changes in electoral law in the discussed group of countries. They included the following elements of electoral law: replacement of the hybrid (mixed) system with a proportional system (Bulgaria in 1991), changes in the vote recount formula (Romania in 1992, Czech Republic in 2000), changes in the structure of electoral districts (Hungary in 2011, Bulgaria in 2001, Czech Republic in 2000 and 2002, Slovakia in 1998). Barrier clauses for individual groups and, especially for electoral coalitions, were frequently changed. A special case was the amendment of the electoral law in the Czech Republic in 2000 and in the Slovak Republic in 1998, which ended with rulings of the Constitutional Court (in 1999 in Slovakia and 2001 in the Czech Republic, respectively). Changes in electoral law – almost always – took place in the course of a fight between the parties. In the Czech case in 2000, the Slovak case in 1998 and the Hungarian case in 2011, they were carried out to hinder the alternation of power in the country.

Finally Freed-Cannabis in South Africa: A Review Contextualised within Global History, Diversity, and Chemical Profiles.

Cannabis sativa L. is a monotypic genus belonging to the family Cannabaceae. It is one of the oldest species cultivated by humans, believed to have originated in Central Asia. In pivotal judgements in 2016 and 2018, the South African Constitutional Court legalised the use of Cannabis within the country for medicinal and recreational purposes, respectively. These decrees opened opportunities for in-depth research where previously there had been varying sentiments for research to be conducted on the plant. This review seeks to examine the history, genetic diversity, and chemical profile of Cannabis. The cultivation of Cannabis by indigenous people of southern Africa dates back to the eighteenth century. Indigenous rural communities have been supporting their livelihoods through Cannabis farming even before its legalisation. However, there are limited studies on the plant's diversity, both morphologically and genetically, and its chemical composition. Also, there is a lack of proper documentation of Cannabis varieties in southern Africa. Currently, the National Centre for Biotechnology Information (NCBI) has 15 genome assemblies of Cannabis obtained from hemp and drug cultivars; however, none of these are representatives of African samples. More studies are needed to explore the species' knowledge gaps on genetic diversity and chemical profiles to develop the Cannabis sector in southern Africa.

Scenario Analysis in Karlsruhe: Exploring New Argumentative Steps of the Federal Constitutional Court

Abstract This Article examines scenario analysis, a disruptive argumentation technique used by the German Federal Constitutional Court (GFCC) in recent high-profile cases, such as the so-called climate protection case (Klimaschutz) and other decisions on the fundamental right to intergenerational justice (Grundrecht auf Generationengerechitgkeit). After explaining the basic argumentative steps involved in scenario analysis, for example designing scenarios, identifying stakeholders, relating scenarios to strategies, determining the main driving forces, estimating scenario probabilities, the Article sketches a normative model for rational scenario design. The normative model is used as a lens for evaluating the arguments developed by the GFCC in the climate protection case. Such evaluation also builds on game-theoretic insights and points out some weaknesses in the Court’s argument. Finally, the Article observes that, as scenario analysis is used to assess the future impact of legislative decisions, it has the effect of imposing greater constraints on legislatures.

Social Justice Coalition & 2 others v Minister of Police and 4 others: Right to City as a Mitigating Concept to Harms on Public Safety

The South African constitution in section 9(3) prohibits unfair discrimination against anyone. This paper aims to unpack a judgement handed down by the Constitutional Court of South Africa on 19 July 2022 relating to the unfair allocation of policing resources in South Africa, thus resulting in unfair discrimination. The case discussed is the case of Social Justice Coalition and 2 others v Minister of Police and 4 others. Systematic discrimination has seen less allocation of police resources amongst poorer communities such as Khayelitsha in Cape Town. The paper further aims to see how local government can play a meaningful role in promoting public safety in its law and policy, thus promoting the ‘right to city’ and adhering to United Nations normative approaches on Urban crime and safety. This may mitigate systematic discrimination that historically disadvantaged areas have in policing resources across South Africa. Generally, South Africa is ranked one of the most violent societies. Murder, robbery, rape, femicide, and domestic violence occur at alarming levels. Cities such as Cape Town rank amongst the twenty most violent cities in the world, with the likes of some Latin and Central American cities, which are countries that are not in any form of civil war or civil unrest. It is a general norm that some areas have developed a reputation of being high risk to public safety because of various violent crimes such as gun shooting, stabbing, and rape. Certain areas in metropolitan cities, such as Khayelitsha Cape Town, are known to have high unreported incidents of violent crimes. It is worth pointing out that the application brought before the courts focuses on the lack of policing resources in Cape Town. This judgement also fits into the reality of the situation across South African townships under-resourced with policing resources to deal with violent crime and other crime. The paper will be structured in a way that first gives a background of the case, secondly a critical analysis of the case through the concept of ‘right to city’ and thirdly, submissions and a conclusion.

LEGAL CONTROVERSIES IN CROSS-BORDER SURROGACY: A CENTRAL EUROPEAN PERSPECTIVE ON THE RECOGNITION OF LEGAL PARENTHOOD THROUGH SURROGACY ESTABLISHED ABROAD

Background: This paper explores the legal field of surrogacy from a Central European perspective, focusing on how countries such as Austria, Germany, and Switzerland address the recognition of parental status established abroad. While the prevailing attitude among Central European states is to prohibit surrogacy within their national laws, there is an increasing tendency to bypass these bans by seeking surrogacy services abroad. This phenomenon, termed reproductive tourism, raises complex legal questions about the recognition of foreign parental status determinations. Methods: The methods used include a comprehensive review of international and autonomous national legal rules as well as a comparative analysis of case law from Central European courts regarding cross-border surrogacy and parenthood recognition. The study examines legal controversies employing Austrian family law as an example to assess highly topical issues arising from surrogacy. It incorporates data from various legal sources, including the Austrian Constitutional Court, the German Federal Court of Justice, the Swiss Federal Supreme Court, and the European Court of Human Rights. Results and conclusions: The findings reveal significant differences between Austria, Germany, and Switzerland regarding the recognition of parental status established by way of surrogacy abroad. While supreme court decisions in these countries tend to prioritise the best interests of the child – often recognising foreign surrogacy arrangements to avoid leaving children without legal parents – their judicial approaches differ considerably. The Austrian Constitutional Court adopts a more inclusive approach by accepting foreign determinations from any authority, such as birth certificates, under the concept of automatic recognition. In contrast, the German and Swiss supreme courts acknowledge only formal court decisions. For cross-border surrogacy cases that do not fulfil this requirement, these countries apply the national law of the child's habitual residence or, as a fallback, the law of the intended parents’ country of origin. Since both German and Swiss law categorically forbid surrogacy, only the genetic father is typically recognised, while the intended mother is directed to adoption. This aligns with the opinion of the ECtHR, which still considers the method of establishing parenthood to be within the sovereignty of a state. This article advocates for a balanced approach that respects both the legal principles of national states and the fundamental rights of children born through an arrangement with a surrogate mother in another country.

The right to education or freedom of education: constitutional and sectoral aspects

This article analyses the distinction between the right to education and freedom of education in the decisions of the Constitutional Court of Ukraine and the European Court of Human Rights. The article deals with the issues of legislative regulation of the right to education. The author analyses international and national legal acts on the right to education, problems of reforming education and science in the context of the Association of Ukraine and the European Union. The author considers optimisation of the organisation and conduct of scientific research and general approaches to education reform aimed at innovative development of education. In modern societies, we often hear that education is associated with the words “right” and “duty”, but not everyone knows what this means in practice. Although it seems easy to talk about education nowadays, this was not the case in the past and many reforms have taken place over the years to make this right and duty more and more relevant. First of all, it should be said that the right and obligation to education has modern roots in democratic societies that recognise and guarantee education for all individuals. Theoretical issues related to the right to education have not yet been the subject of modern legal science have not yet been the subject of a multidimensional study. The study of the of the human right to education usually involves consideration of the issues of implementation as a public service in educational institutions of various types and the protection of the right by the state authorities of Ukraine. The human right to education regulates social relations related to any form of education and upbringing, has a programme and targeted nature, which is expressed in the need for continuous improvement of legislation on education and state activities related to the realisation of the right to to education. This process is carried out on the basis of joint activities of a person, the state and society represented by represented by commercial and state institutions, whose interests are united by a single focus, and complement each other. Education is a human right in the modern international order. It is one of the so-called second-generation rights, i.e. rights that require the state to ensure positive fulfilment, to act in favour of their observance.

Right to information: legal positions of the Constitutional Court of Ukraine

The article reveals the legal positions of the Constitutional Court of Ukraine regarding everyone’s right to information. Attention is focused on information that is collected by state authorities, local self-government bodies, institutions and organizations, and which is not a state or other secret protected by the Law of Ukraine «On Information» and which every person has the right to familiarize himself with. Separate attention is focused on confidential information (information with limited access). One of the types of confidential information is medical information, which, on the one hand, in special cases provided for by the Fundamentals of the Health Care Legislation of Ukraine, can be disclosed to family members or a legal representative of the patient, and on the other hand, in accordance with the decision of the European Court of Human Rights person in the case of «M.K. against Ukraine» confirmation by a doctor of a patient’s illness to a member of his family, even if he learned about it from the patient himself, is an interference by the state in a person’s right to private life, and in the case of infectious diseases, it is qualified as not carried out «in accordance with the law». Attention is focused on the fact that such situations arise more and more when military personnel undergo medical examinations and that there are prohibitive norms of a special law that forbid the disclosure of medical information regarding a certain list of diseases of a military personnel to his employer (military unit), commander, family members of the military personnel. Regarding the confidentiality of information and about a person who holds a position related to the performance of the functions of the state, local self-government bodies, and about members of his family, the legal positions of the Constitutional Court of Ukraine are established: absolutely in each specific case it is determined whether information about a person belongs to confidential; there are guarantees of protection of the rights of the above-mentioned persons, and additional legal burdens, and therefore the state is called upon to ensure a balance of public and private interest. The article also draws attention to the fact that even under martial law conditions, control (direct; indirect) by institutions of public power is prohibited both in terms of content and dissemination of information, even if the state pursues such a goal as protecting the information space from what is considered harmful by the state information that is not necessary for society. The practice of the Constitutional Court of Ukraine on this issue is established. Attention is focused on the fact that censorship cannot be used in Ukraine to protect the information field of the state even in war conditions - it is prohibited in part 3 of Art. 15 of the Constitution of Ukraine.

The Atrato River as a Bearer and Co-creator of Rights: Unveiling Black People’s Legal Mobilization Processes in Colombia

Abstract In 2016, Colombia’s Constitutional Court recognized the Atrato River as the first water body in Latin America to have its own rights. This article interrogates the historical roots of the judicial decision declaring the river a rights holder. Drawing on my long-term engagement with social organizations as an activist, lawyer, and then researcher, I illuminate the influence of Black people from the Atrato River in the transformation of law in at least three areas: ethnic territorial rights, transitional justice, and river rights. To do so, I combine interdisciplinary theoretical critique with socio-legal research using community-based and autoethnographic approaches to trace the community methods and historical practices of political contestation deployed along the rivers. Thus, I conceptualize how an organic and distinctive style of claiming and creating rights has been constructed in the basin. Moreover, by listening to the voices of the riverine representatives, I argue that the river is a nonhuman existence that has participated in the processes of rights-making in conjunction with local communities and a broader mosaic of allied actors. However, I also outline how legal systems still function to overlook crucial socio-legal claims of marginalized and resistant communities.

Legal Protection and Rights of Indigenous Peoples: Legal Certainty in Managing Natural Resources

<p><em>Indigenous peoples possess traditional rights to natural resources within their territories, yet these rights are frequently overlooked or marginalized due to inadequate policies and regulations. This research aims to examine the legal protection of the Baduy tribe's rights in managing natural resources and to explore how legal certainty can be achieved in this regard. Utilizing a normative juridical approach, the study analyzes relevant laws and regulations pertaining to indigenous rights and state-provided legal protection. The findings reveal that the recognition and protection of customary law communities in Indonesia highlight the state's commitment to supporting social entities with autonomy over their lives. Despite the pressures of modern integration, indigenous peoples continue to uphold their identity, traditions, and customary rights. Legal acknowledgment of these rights is enshrined in the 1945 Constitution and various laws, including Law No. 5 of 1960 on Agrarian Affairs, Law No. 4 of 2009 on Mining, Law No. 41 of 1999 on Forestry, and Law No. 7 of 2004 on Water Resources. However, effective implementation is often hindered by regulations that do not adequately address customary rights. While Constitutional Court Decision No. 35 of 2012, which recognizes customary forests as belonging to indigenous communities, represents significant progress, challenges persist. The need for revisions to create more inclusive laws or regulations is pressing. For the Baduy tribe, Lebak Regency Regional Regulation (Perda) Number 32 of 2001 on the Protection of Ulayat Rights is a critical development. This regulation offers legal certainty and safeguards their traditional rights, including customary land and natural resources, and tackles issues like illegal logging and forest encroachment. By acknowledging local wisdom and customs, this regulation aims to preserve Baduy culture and enhance security and social stability in their area.</em></p>

Image Framing of Indonesia's Constitutional Court in Tempo.co News (18-27 October 2023)

The Constitutional Court of the Republic of Indonesia (MK) plays a crucial role in reviewing laws against the 1945 Constitution and resolving election disputes, ensuring adherence to constitutional principles. Tempo.co, a prominent media outlet, has extensively covered the MK, especially following the recent controversy over the Court's ruling on age limits for presidential and vice-presidential candidates. This research examines how Tempo.co frames its coverage of the MK using Robert N. Entman’s framing analysis model, alongside agenda-setting theory and media reality construction theory. Applying a qualitative methodology, the study analyzes Tempo.co’s news articles from October 18 to October 27, 2023. The analysis reveals that Tempo.co employs various framing techniques consistent with Entman's model, which influences public perception through agenda-setting by emphasizing specific aspects of the MK’s activities. Additionally, the coverage constructs a particular narrative about the MK's role and decisions. To ensure data validity, thorough checks were performed. Findings indicate that Tempo.co’s headlines generally maintain neutrality and do not exhibit overt political bias, focusing on the institution’s functions. This research offers insights into how media framing, through Entman's model, agenda-setting, and reality construction, shapes the portrayal of significant constitutional issues and affects public understanding of the MK.

Constitutionalization of Arbitration

The number of arbitration cases handled by the Constitutional Court of the Russian Federation has steadily increased over the years. The evolution of social practices and judicial approaches to arbitration procedures has prompted the supreme body for judicial protection of the Russian Constitution to repeatedly review whether the legal concepts used to resolve civil disputes by arbitration courts and international commercial arbitrations align with the nation’s basic law. The outcome of this process is a set of legal principles that define the constitutional and judicial foundations of arbitration in Russia. The above trends have facilitated the use of the integrative concept of constitutionalism in arbitration. This study highlights the constitutionalization of both arbitration and its social application. From a standalone perspective, the problems of enhancing the constitutional and legal principles of arbitration were discussed, and the further progress of constitutionalism in Russian arbitration was predicted.

Human Health as a Constitutional Value in Priority Areas of the State Policy

The health and well-being of the population are two core values that underpin the Russian state policy. With digitizing healthcare, a growing interest has been witnessed in the constitutional value of health, as well as the right to healthcare and medical assistance. This focus is essential for the development of the Russian healthcare legislation and state policy strategies. Here, the normative content of the right to healthcare was explored from historical and current perspectives. The study used both standard (analysis and synthesis) and some specific (historical, statistical, logical and comparative legal) methods. The analysis was based on the constitutional provisions of the Soviet era and the Constitution of 1993; the laws and regulations of the federal Russia that concern healthcare and define the priority areas of the Russian state policy; and the legal interpretations from the Constitutional Court of the Russian Federation and general jurisdiction courts. Particular attention was given to the role of health in different areas of life, such as the economy, society, environment, science, and technology. The retrospective research on the constitutional regulation of the social value of health during the Soviet era was performed. The normative content of this value and its components in the current Russian legislation was identified. Guarantees for the right to healthcare and medical assistance in the priority areas of the Russian state policy were considered. Recommendations to improve these established guarantees were designed.

Impact of European Integration on Substantive and Formal Constitutional Amendments in Spain in the Light of the Spanish Constitutional Court’s Jurisprudence and Constitutional Practice

The purpose of the article is to answer the question of how the process of European integration has influenced the Spanish constitutional order. Taking the European clause set out in Article 93 of the Spanish Constitution as a starting point, it analyzes both impacts of a formal-legal nature, but also influences of a substantive nature affecting the normative content of the Spanish Constitution. The study demonstrates that EU law, based on the principle of “direct applicability” and “direct effect,” intensively influences Spanish constitutional law and has been the strongest factor influencing the Spanish legal order since the enactment of the Spanish Constitution in 1978. Thus, while the Spanish Constitution in the formal sense remains a rigid constitution, when viewed in the category of a substantive constitution, it has proved to be flexible and susceptible to external influence, despite the fact that this occurs de jure with the consent of Spain expressed in respect of the principle of state sovereignty, on the basis of the provisions contained in Article 93 of the Spanish Constitution.

Practice of Presidential Threshold in the Implementation of Presidential and Vice Presidential General Elections and Its Implications on the Political Rights of Citizens and Political Parties in Indonesia

The presidential threshold is a rule that becomes a political requirement for a political party to carry presidential and vice presidential candidates. The existence of this rule can potentially cause restrictions on citizens in running for president and restrictions on political parties in carrying their candidates to the presidency and vice presidency. The presidential threshold journey in coloring the elections in Indonesia has also undergone material testing and a lawsuit by the Constitutional Court. Therefore, this study aims to discuss the practice of the Presidential threshold in the implementation of elections in Indonesia and its relation to the political rights of citizens and political parties in Indonesia. This study is a field research study with a study into the field and using a non-doctrinal approach that is the enactment of law. Primary Data was obtained by interview techniques to the KPU RI, political parties, and legal experts. Furthermore, the secondary data consists of primary, secondary, and tertiary legal materials. This legal research uses descriptive analysis to obtain research results. The results showed that the practice of Presidential threshold has existed since the enactment of the first presidential and vice presidential elections. The political rights of citizens and political parties do not necessarily disappear, they only become conditional. Political parties also have the same opportunity to nominate the president and vice president by carrying their own or joining and forming coalitions with other parties.

Содержание дефиниции предпринимательской (иной экономической) деятельности в контексте минимизации фактов противоправности ее осуществления

The situation in the modern world forces many countries to increasingly complicate the system of the studied activity: to support it with justification on the system of so-called direct investments, including those in the form of corporations and, above all, state corporations; to increase the number of subjects of the digital ecosystem carrying out the studied activity; to change the goals and conditions of co-financing (crowdfunding, etc.). Despite numerous studies, the question of the definition of “other economic activity” has not yet been resolved. The Constitutional Court leaves open the possibility for an appropriate characterization of almost any activity, which is hardly positive from the standpoint of ensuring its safety. In addition, in jurisprudence, the accuracy of definitions determines the possibilities for minimizing (or even excluding) abuse of law.