bluuebunny/crossref_metadata_2025_split huggingface dataset:
A Constitutional Tradition in the Making: The Presidents’ Cases and the Role of Kosovo’s Constitutional Court in the Process of Democratic Consolidation
Authors: Qerimi Qerim , Qorrolli Vigan 
Published: February 2017

Abstract
In a period of less than a year, two decisions of the newly established Constitu­tional Court of the Republic of Kosovo resulted in the resignation of two Presidents of the new State. Ruling on the unconstitutionality of the act of simultaneously holding the position of the head of State and that of his political party, in one case; and ruling on the unconstitutionality of his election due to procedural irregularities in the other, the Court prompted fundamental changes to the political landscape of Kosovo that in the first case led to new and extraordinary elections, whereas in the second to a political arrangement that would ultimately lead to constitutional reforms. Following the Court’s decisions, both Presidents (Sejdiu and Pacolli) resigned from their posts.
This article offers a textual analysis of the merits and controversies surrounding both decisions, which will be situated in the broader context of the seemingly powerful role of Constitutional Courts in certain societies in transition. The overall analysis demonstrates the weaknesses inherent to the initial stages of State formation, and to the foundational con­stitutional instrument, indicating the importance of the Constitution’s clarity for political stability. In an environment characterized by a dominant perception of a politicized judiciary, the Court’s decisions testify to the judicial activism of the Constitutional Court and, in terms of the substance and consequences of its key decisions, also to judicial supremacy. The Court’s decisions have also had some significance for testing the country’s political culture, a test that has been met in both cases eventually with compliance by those most affected.
Egypt’s Constitution: What went Wrong?
Authors: Abdelaal Mohamed 
Published: February 2017

Abstract
Egypt is going through the early phases of the throes of democratization. Right after the Revolution in 2011, which ended thirty years of repression and dictatorship under the regime of ex-president Hosni Mubarak, Egyptians found themselves with the serious challenge of electing a new president and building a new Egypt; in particular by drafting a new constitution capable of building lasting stability, maintaining equality, and offering op­portunities for betterment. However, the newly drafted constitution has failed Egyptians’ ambitions regarding the establishment of democratic governance and preserving human rights, freedoms, and Egypt’s moderate secular nature.
Animals as Sentient Beings
Authors: Zoethout Carla M. 
Published: February 2017

Abstract
The twenty-first century is witnessing a number of initiatives to improve the liv­ing conditions of animals - worldwide, at the regional and the national level. While the debate on which status should be granted to animals is still undecided, a consensus has emerged about the need for animal welfare and the (moral and legal) obligations of hu­mans towards non-human animals. Today, animal welfare and our moral obligations to­wards animals have come to be accepted as part of public morality. This article draws at­tention to this change in moral and legal thinking over the past decades. The consequenc­es of this change are put to the test with regard to a specific protective measure concern­ing animals - the prohibition of un-stunned (ritual) slaughter. It will be argued that if public morality in the 21st century does indeed include respect for the welfare of animals, it may serve as a legitimate aim to limit the freedom of religion and with that, the practice of un-stunned ritual slaughter.
The International Validity of the Venezuelan Denunciation of the American Convention on Human Rights
Authors: Núñez Emercio José Aponte 
Published: February 2017

Abstract
This paper analyzes the Venezuelan denunciation of the American Convention on Human Rights from a constitutional and an international approach, taking into account the Venezuelan Constitution, the Inter-American Convention on Human Rights and the interpretative rules of the Vienna Convention on the Law of Treaties (VCLT), to demonstrate that, even with the existence of article 78 of the American Convention, the denunciation is contrary to the Inter-American System as a system of two levels and therefore it shall be considered unlawful and invalid.
Are Austrian Courts Obliged to Consider the Jurisprudence of the European Court of Human Rights when Interpreting the ECHR?
Authors: Mayer Claudia , Wutscher Herwig 
Published: February 2017

Abstract
According to the prevailing opinion, ECtHR judgments do not bind the members of the Council of Europe beyond the individual case. The aim of this paper is to present arguments against this prevailing opinion and make a case for a legally binding effect of ECtHR judgments beyond the individual case within the Austrian legal order. We demon­strate that such an obligation follows from the system and telos of the ECHR and the con­stitutional principles of legal certainty and equality before the law and not only arises when a systematic problem in Austria is concerned, but also where well-established case-law of the Court exists. Moreover, we approach the question from an EU law perspective and ar­gue in favour of a legally binding, albeit limited, effect of the Court’s judgments by virtue of EU law.
Undermining Trial by Jury in Russia in Counterterrorism and the Wider Criminal Law
Authors: Davis Fergal F , Tyulkina Svetlana 
Published: February 2017

Abstract
The re-adoption of trial by jury in Russia in 1993 was heralded as a significant break with the discredited legal system of a crumbling regime. However, in less than twenty years the jury in Russian criminal trials has been significantly undermined; that process is particularly evident in the field of counterterrorism. This article examines the history of trial by jury in Russia, the constitutional and legislative provisions adopted in the 1990s, and the rolling back of these provisions in the first decade of the twenty-first century. Given the adoption of jury trial in a number of democracies in the early 1990s the underlying causes of the rapid Russian retrenchment are of significance beyond the Rus­sian Federation. The jury was not a legal transplant in Russia and it was hoped that conditions were fertile for the jury to flourish. This has not proven to be the case: Russian jury trial may have a long history but it has shallow roots.
Comparing Constitutional Adjudication
Authors: Karahodžić Mirha 
Published: February 2017

Abstract
CoCoA Summer School, which has been initially run for four seasons (2006- 2009) by the Faculty of Law of the University of Trento under the European Marie Curie Programme, has been offered again in 2014 furthering the previous profitable experiences and keeping the same main features and purposes like providing an opportunity for senior (guest speakers) and junior scholars (tutors), legal advisors to Constitutional Court judges as well as younger researchers, post-doc students and PhD candidates (participants) to meet, interact, train and being trained and plan future research in comparative constitu­tional adjudication. The Summer School aims at comparing judicial decisions from national and European (ECtHR, ECJ) jurisdictions on selected constitutional issues. This year the topic was ‘Constitutional Adjudication in Education Law: A Comparative Approach within the Council of Europe’.
On Resilience of Constitutions. What Makes Constitutions Resistant to External Shocks?
Authors: Contiades Xenophon , Fotiadou Alkmene 
Published: February 2017

Abstract
Over the last years resilience has become a key concept in understanding how rule-making choices are made in the context of risk prevention and disaster. This paper probes the relationship between constitutions and resilience in light of the way constitu­tions responded to the shock of the global financial crisis. What makes constitutions able to anticipate and resist external shocks, or bounce back after a disaster that affects core constitutional functions such as the balance of powers and the protection of fundamental rights? The ability of a constitution not only to withstand a severe shock, but also to enable the legal order whose ground rules it sets out to seek recovery within the constrains of these ground rules, lies at the heart of constitutional resilience. Analysing constitutional functions in terms of resilience could offer a new prism through which to look at national constitutions in an increasingly complex globalized environment. The recent crisis, through the interconnectedness of the multiple pressures it put on the legal orders it struck and the multiplicity of legal responses it demanded, allows exploring how resilience thinking can affect constitutional theory.
Foreign Precedents in Austrian Constitutional Litigation
Authors: Gamper Anna 
Published: February 2017

Abstract
This paper analyzes the Austrian Constitutional Court’s use of foreign precedents in the Court’s own case law. As the survey shows, the Austrian Constitutional Court is still reluctant to use foreign precedents, even though there has been a slight increase of cases dealing with foreign case law over the last decade. Among the various reasons for this attitude, the Court’s methodology deriving from legal positivism as well as the doctrine of self-containedness of Austrian constitutional law have been most important. Quite conversely, the same Court strongly engages in the ‘dialogue’ with European courts and has for a long time used to cite case law of both the ECtHR and the ECJ. Still, and with good reasons, the Court is far from becoming a radically cosmopolitan court.
The Place of the Niqab in the Courtroom
Authors: Narain Vrinda 
Published: February 2017

Abstract
This paper analyzes the Supreme Court of Canada’s decision in R v NS, 2012 SCC 72 where the Court considered if a witness who wears a niqab for religious reasons can be required to remove it while testifying. The Court identified the two Charter rights engaged: the witness’ freedom of religion and the accused’s fair trial rights, including the right to make full answer and defense. This paper focuses on those aspects of the Supreme Court’s decision that relate to religious freedom, multiculturalism and reasonable accommodation. Analyzing the Court’s reasoning through the lens of critical multiculturalism, I consider the potential of the reasonable accommodation framework to forward minority rights. I suggest that had the Supreme Court applied an intersectional framework to adjudicating NS’s claim, it could have crafted a more contextual response based on her location along multiple axes of discrimination: gender, religion and racialised minority. This paper aims to contribute to a better understanding of mediating individual and group tensions, to move towards a more inclusive notion of citizenship than can foster a commitment to a shared multicultural future.
The Most Significant Issues of Power Theory in Hungary from 2010 to 2014
Authors: Bárándy Gergely 
Published: February 2017

Abstract
Between the years of 2010 and 2014, the most significant change in the public law system took place in Hungary since the democratic transition of 1989. According to some, this has been a reform, whereas others regard it as destruction. During the trans­formation, of course, relations between all branches of power and their relationship with other factors of power had been a subject of debate. Yet - apart from the general question of how much the state policy established by 2014 complies with the democratic principles of the rule of law based on the division of power - from the viewpoint of power theory there had been three major issues that instigated fierce debates. They concerned the status of the president of the republic, the legitimacy of the constitution (Fundamental Law) and the relationship between the constitution-making power and the constitutional court. The present study aims to address the above questions.
Religious Symbols and Garments in Public Places – a Theory for the Understanding of S.A.S. v France
Authors: Sanader Teresa 
Published: February 2017

Abstract
This article analyses the ECtHR’s case law on Article 9 ECHR, with an emphasis on displaying religious symbols and garments in public places. It provides a theory for the better understanding of the ECtHR’s poor protection of individual believers and its defer­ence to the member states in the light of a wide margin of appreciation, the lack of a Eu­ropean consensus regarding the role of religion in society in the member states and the absence of an in-depth analysis of proportionality in these cases. With the exception of Ahmet Arslan v Turkey no violation was ever found in the context of religious dresses in public places. Therefore, the article offers an explanation for the Grand Chamber’s judg­ment of S.A.S. v France according to the theory of religion as an ‘adjudication stopper’ for the ECtHR and it argues that this latest judgment was not surprising but in line with the Court’s rather cautious approach.
The Eternity Clause in the Czech Constitution as Limit to European Integration
Authors: Vyhnánek Ladislav 
Published: February 2017

Abstract
The article raises one principle question: Does the Czech Eternity Clause pose a possible threat to a further integration of the European Union? In a concise introductory part, the article analyses the concept of the Eternity Clause of the Czech Constitution from both the substantive and procedural point of view. Afterwards, the article goes on to eval­uate whether certain aspects of the Eternity Clause (as interpreted by the Czech Constitu­tional Court) might indeed create practical problems for the EU. The opinion of the author is that the ‘danger’ is quite negligible. This is mostly due to the fact that the Czech Consti­tutional Court generally (with an exception that is not to be overestimated) adheres to euro-friendly interpretation and it has even interpreted the Eternity Clause itself (espe­cially concepts like democracy or sovereignty) with respect to the logic and nature of Eu­ropean integration. The euro-friendliness of the Czech Constitutional Court is further com­plemented by the respect that the EU law pays to national (especially constitutional) iden­tity of the member states.
Drafting the Preamble for the Satversme: A New Approach to one of the Oldest Still-Functioning Republican Basic Laws
Authors: Jarinovska Kristīne 
Published: February 2017

Abstract
The Constitution of the Republic of Latvia (the Satversme) is the oldest East Central European constitution still in force and the sixth oldest still-functioning specimen of republican basic laws in the world. Unlike other Baltic states, Latvia did not have to adopt a new constitution after re-establishing its constitution previously in force before the So­viet occupation. Laconic wording, sufficiency and precision of norms and yet substantial regulatory coverage, on the one hand, and holding to the established légistique tradition, on the other hand, made it possible for the Satversme to step into the 21st century. Along with its longevity and precise drafting, there is a further aspect which makes the Satversme special. In drafting the Satversme, the Constitutional Assembly followed the constitutional trends of the time, with direct popular participation being one of them. Replicating traditions of the 1919 German Constitution, it provides multiple forms of direct popular participation. Moreover, there are some limitations with respect to the subjects of referenda and the tim­ing for organising referenda. Nonetheless, these prove to be few. While designed to em­power citizenry engagement within the process of legal framing, these limitations have recently been associated with problems related to the misuse of popular will.
Though the legal system of Latvia provides several ways to prevent the misuse of popular will through administrative measures, judicature, constitutional justice and legislation, nei­ther of these were effectively used to solve ‘constitutional strokes’. Similarly, the quest of legal scholars for a cure for the misuse of popular will within the prevailing ‘dogma on perfection of the Satversme’ reached a deadlock. Thus, the cure for the strokes has been sought within constitutional theory, in particular by defining ‘the core of the Satversme’ in the preamble of the Satversme. This article discusses the preamble of the Satversme, its historical background and its travaux préparatoires.
You Break it, You Own it: South African Assembly Jurisprudence after Garvis
Authors: Woolman Stu 
Published: February 2017

Abstract
Can one square the invariably raucous natures of demonstrations and gatherings, and the fundamental right to assembly, with the imposition of strict liability upon the organizers for any harm to person or damage to property caused by an assembly, demonstration and gathering? The South African Constitutional Court in Garvis1 suggests that one can. This article contends that a court cannot.
The Use and Abuse of Definitions in Constitutional Law
Authors: Walen Alec 
Published: February 2017

Abstract
Justice Roberts′s dissent in Obergefell v Hodges - the case in which the US Supreme Court found a constitutional right for same sex couples to marry - rested on the premise the Court cannot invoke the right to marry as a basis for changing the definition of marriage. But his argument works only if the Court has no obligation to find a constitutional meaning for the term. I argue here that it has such an obligation. I argue further that an analogy with the concept of ‘person’ throws light on how that obligation should work. And finally, I argue that the most plausible constitutional definition would include same sex couples.
The Enigma of the Hong Kong Injunction Cases – A Perspective on Political Question Doctrine, Separation of Powers, Rule of Law and Universal Suffrage
Authors: Lone Fozia Nazir 
Published: February 2017

Abstract
On 31 August 2014, disputes over Beijing’s plans to retain control over the political reform relating to the Chief Executive elections in Hong Kong led to the eruption of a mass civil disobedience campaign and the occupation of public places. In response to the aforesaid movement, pro-government groups approached the courts of Hong Kong for an injunction as a strategy to clear those public places (the Injunction Cases) and thereby put an end to the civil disobedience campaign. The courts heard the Injunction Cases and ruled in favour of the plaintiffs by upholding findings of public nuisance.
The primary objective of this article is to demystify the enigma of the Injunction Cases by reviewing them from the perspective of justiciability, acts of state, rule of law and separation of powers. This article also seeks to map the dialectical disconnect between accepted practices in Hong Kong on matters of justiciability and how the courts of Hong Kong dealt with it in the Injunction Cases. It is argued that the courts should have first determined whether the Injunction Cases were justiciable from common law perspective and constitutional doctrines before proceeding to hear such cases.
For the purpose of facilitating a more complete discussion, notable cases in relation to the doctrine of justiciability will be discussed. Other issues within the framework of the rule of law, separation of powers and right to democracy will also be reflected upon.
Due Process Prior to Administrative Decisions and Effective Judicial Protection in Brazil: A New Perspective?
Authors: Perlingeiro Ricardo 
Published: February 2017

Abstract
In view of the increasing number of repetitive judicial actions in public law issues, this text proposes reconsidering the guarantees of administrative due process of law - enshrined in the Brazilian Constitution of 1988 -, among them the effective independence of the administrative authorities, based on a comparative perspective between the Anglo-Saxon and Continental-European models concerning judicial protection of individual rights. The author is visibly concerned with searching for a better understanding of topics that are considered to be established dogmas in Brazilian law, such as the contradiction between the self-enforceability of administrative decisions and the need for the public authorities to initiate judicial actions against individuals; the distinction between the administrative procedure and the (judicial and non-judicial) administrative proceeding and their implications for individuals in court proceedings; impartiality without independence of the authorities in conducting a non-judicial administrative proceeding; scope of judicial review of the utilization of the margin of appreciation of factual/scientific matters in decisions made by public administrative authorities.
The Right to an Unchanging World – Indirect Expropriation in International Investment Agreements and State Sovereignty
Authors: Pupolizio Ivan 
Published: February 2017

AbstractThis paper examines indirect expropriation in international investment agreements and compares current foreign investments protection with property protection in the XIXth century USA, when the US Supreme Court adhered to an abstract and de-physicalized conception of property later contested by legal realists. Its central claim is that investor state arbitration poses a serious and underestimated challenge to state sovereignty, granting arbitrators a ‘proto-constitutional’ power of judicial review on regulatory powers, including the legislative one. Moreover, the indeterminacy of indirect expropriation leads to a potential transformation of property rights protection that could eventually give transnational enterprises a new ‘right to an unchanging world’, as the US Supreme Court did more than a century ago, albeit this time on a global scale.
“‘to subscribe unto GODS BOOK’: The Bible as Material Culture in Seventeenth-Century New England Colonialism”
Authors: Plane Ann Marie 
Published: February 2017

AbstractReading scripture in the vernacular forged a unique discursive community in colonial New England, just as it had in post-Reformation England and elsewhere. But just as important were the many ways the bible functioned as a physical object imbued with special power, serving as talisman as much as text. In the colonial context, missionary activity among New England Indians introduced both aspects of scripture to indigenous communities, which in their turn, endowed it with meanings of their own. This essay first reviews the role of the Bible as physical object among the English colonists, before turning to its reception, rejection, and uses among New England’s Algonquian peoples. Examining bibles as items of material culture in Massachusetts, Rhode Island, and Connecticut reveals the creativity and creolization inherent in the introduction of the Bible to this colonial context. The intellectual, practical, and talismanic properties of the Bible so familiar to the English were cast into new relief in the colonial contest between Europeans and Indians, between literate and oral cultures, and between these vastly different religious systems.