Közjogi Szemle 2008/2. szám

Transcription

1 Közjogi Szemle 2008/2. szám TARTALOM Fókusz Tóth Judit: Alapjog-e a status negativus, van-e környezethez való alapjog? Figyelő Csapó Zsuzsanna: Nemzetközi bíróságok és a gyermekkatonáskodás megítélése (I.) Chronowski Nóra: A minőségi jogalkotás napos oldala: jogtisztítás Blutman László: A dereguláció árnyékos oldala Fábián Adrián: Gondolatok és kérdések a többcélú kistérségi társulásokkal kapcsolatban Horváth István: Merre tovább?! Javaslatok egy új magyar közszolgálati szabályozás megalapozásához (I.) Futurum Hiti Hajnalka: Foglalkoztatási stratégiák, foglalkoztatási paktumok Borsa Dominika: Önálló közpénzügyi fejezet létjogosultsága a hatályos magyar alkotmányban Faktum Az Alkotmánybíróság döntése a külföldön történő szavazásról (Kocsis Miklós) Az Alkotmánybíróság döntése az EUIN-megállapodásról (Kocsis Miklós) Fórum Vékás Lajos: Opponensi vélemény Prof. Dr. Kiss György akadémiai doktori értekezéséről

2 CONTENTS Focus Judit Tóth: The Right to (What Kind of an) Environment? Observer Zsuzsanna Csapó: International Courts and the Legal Appraisal of Child Combatants (I) Nóra Chronowski: The Bright Side of Better Regulation László Blutman: Shadowy Side of Deregulation Adrián Fábián: Thoughts and Questions Concerning Multi-purpose Micro-regional Associations István Horváth: Which Way Further?! Proposals on the Establishment of a New Regulation for Public Service in Hungary (I) Futurum Hajnalka Hiti: Employment Strategies, Employment Pacts Dominka Borsa: Justifying the raison d être of a Separate Chapter on Public Finances in the Hungarian Constitution Factum Decision of the Constitutional Court on voting from abroad (Miklós Kocsis) Decision of the Constitutional Court on EUIN Agreement (Miklós Kocsis) Forum Lajos Vékás: Evaluation of Professor György Kiss s Academic Doctoral Dissertation Summary Judit Tóth: The Right to (What Kind of an) Environment? The examination of this peculiar fundamental right, as contained in Articles 18 and 70/D of the Constitution, rests on three pillars. First, the author analyses the most popular constitutional law textbooks in order to expose how these books evaluate this comprehensive subjective right, and to ascertain whether that right is unanimously regarded as a third

3 generation human right. Secondly, she discusses the case law of the Hungarian Constitutional Court on environment protection, the right to a healthy environment as well as on the substantial components of institutionalized protection. Finally, recent developments in legislation are investigated in the light of prior expertise and decisions of the Constitutional Court on healthy environment, with special regard to the new amendment of the Act on the Ombudsman (2007) which appears to introduce an indirect hierarchy of fundamental rights. As a result, the rights of this generation shall be protected in a different manner as compared to the rights of the future generations. Even though legislators concluded the legal discussion, the academic debate continues on the phenomenology of the right in question. Zsuzsanna Csapó: International Courts and the Legal Appraisal of Child Combatants (I) The study examines the way international courts enforce responsibility arising from the infringement of international norms prohibiting the use of child soldiers. The first part of the essay analyses the relevant cases before the International Court of Justice and the International Criminal Court. It expounds the Congo v. Uganda Case (Case concerning armed activities on the territory of the Congo) as concluded in 2005, then still in connection with Congo it presents the Lubanga Case before the International Criminal Court. By examining these cases the author seeks to reveal how the responsibility of states (ICJ) and of private persons (ICC) can nowadays be enforced by international fora on account of enlisting, conscripting and using children to participate in hostilities. The second part of the study is aimed at the analysis of actions taken by the Special Court for Sierra Leone likewise from the point of view of use of child soldiers as well as the criminalization of this practice focusing especially on the trial of Charles Taylor. Nóra Chronowski: The Bright Side of Better Regulation A new and dubious deregulation technique has recently emerged in Hungary that intends to limit the temporal effect of acts amending or deregulating other acts. The intentions are connected to the national better regulation strategy reinforced by that of the European Union in the framework of Better Regulation Agenda Deregulation is not an exclusive means of better regulation, but it definitely makes the system of legal sources more unambiguous. A potential target group of deregulation is that of amending / deregulating acts, because they become out of date just after the moment of their coming into force. The Hungarian legal system was indeed overburdened by such lean acts until 2007 when a deregulating act eliminated hundreds of dated legal means. From time and again, legislation applies the interim temporal effect in case of amending and deregulating acts thereby establishing a practice questioned by academics. However, the automatism of deregulation has advantages in the light of better regulation programme. László Blutman: Shadowy Side of Deregulation Act LXXXII of 2007 on deregulation has accomplished one of the most radical deregulation in Hungarian legal history repealing all the acts and law-decrees adopted by the relevant Hungarian legislative organs before 23 October 1989, with the exception of those which have been listed in the annex to the Act. The author reveals some drawbacks of this blind deregulation in connection with the acts and law-decrees by which international treaties had been promulgated. Focusing then upon two relatively new specific legal techniques of deregulation in Hungary, i.e. the application of self-destructing legal rules and the

4 premature repealment of legal rules amending others, the author argues that these methods lack solid doctrinal foundation and may cause some troubles in legal practice. Adrián Fábián: Thoughts and Questions Concerning Multi-purpose Micro-regional Associations Micro-regional co-operation followed no previous pattern and relied on no prior experience in Hungary. Act CVII of 2004 (XI. 18.) on the Establishment of Multi-purpose Micro-regional Associations elevates the responsibilities and powers of such municipal associations the level of the law. The important practical experiences that have been gained in the last three or four years may facilitate the development of this relatively new territorial system. István Horváth: Which Way Further?! Proposals on the Establishment of a New Regulation for Public Service in Hungary (I) The study focuses on the Hungarian legal regulation of public service. The change of the labour law system in 1992 was a necessary consequence of political changes. In the course of these changes, however, the necessity of division of private and the public sectors' labour law was coupled with controversies concerning the further partition of public service to public servants and to civil servants. As a result, a dual system was founded on a triple structure. The study recommends in a de lege ferenda manner the elimination of anomalies in the regulation of public service as well as of contradictions within the structure of certain legal institutions. The two significant sources of this proposal are the advantageous tradition of Hungarian legal history and bearing in mind the Hungarian membership in the European Union the noticeable tendencies in the last two decades in EU Member States. The study suggests the adoption of a unified act of public service, which also embraces the fundamental issues of legislative process. As such, in addition to the structure of the envisaged act, it formulates the demands of the legal entity of the employer, the public service's employment relationship and the most important legal institutions. Hajnalka Hiti: Employment Strategies, Employment Pacts The increase of employment rate and the management of unemployment are of utmost importance in Hungary, in the European Union and all over the world. Solutions for problems of the labour market need to be found encouraging participants of the labour market to act more in concert. The employment pact is an important means of socializing regional employment policies, one that is based on local partnership, and through the support of which the aims of human resources can be reconciled with the economic development concepts of the region. It is evident that the resolution of employment related matters and the operation of the labour market may be influenced by the actors of economy only if they reconcile their tasks. The future lies clearly in partnership cooperation, which may make the acquisition as well as the usage of resources more efficient for the benefit of living conditions of those settled in the region. Dominka Borsa: Justifying the raison d être of a Separate Chapter on Public Finances in the Hungarian Constitution Making public funds management more transparent, predictable and efficient is an objective of outstanding importance in Hungary. The study argues that this objective could be realized by the addition of a chapter to the Hungarian Constitution concerning public finances, thereby

5 establishing a firm constitutional framework for public funds management and, at the same time, fulfilling the requirement of the rule of law in that particular field. Making her case, the author examines whether there is special emphasis or minimum constitutional standards in the basic laws of EU member states. Indeed there are essential regulations, which should be deemed fundamental in every democratic country. In addition to the international survey, the study seeks to sketch a model suitable for the specific purposes of the Republic of Hungary.