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1

O ROZHODOVANÍ POLITICKÝCH OTÁZOK ÚSTAVNÝM SÚDOM

100%
Čapkovičová P.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
|
2016
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vol. 99
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issue 5
421 – 430
EN
This article deals with constitutional courts when an object of judicial review is a political question. It presents arguments, for and against judicial review in such cases, which are divided into three sections – the competency issue, the legitimacy issue and the issue of arbitrariness. In the first section, there is a dispute whether deciding political questions breaches separation of powers, or rather fulfils the principle of checks and balances. In the second section is raised a question about legitimacy – does judicial review break the majority rule, or can we refer to citizens acceptance of constitutional standards. In the third section, the author think about vagueness of constitutional text and its consequences for judicial review – are judges’ considerations really arbitrary, or they are bound by a line of previous decisions and by necessity to find legal, not political answers. The author points to the fact case, which at first looks like a political question, may have potential to affect constitutional values and principles. Due to this fact, the author tries to outline a border between „political“ and „legal“ consideration, while she uses examples from existing decisions of constitutional court. The article is aimed to show that constitutional courts, in some point of view, ought to decide also political questions and for that reason is necessary to create clear rules and procedures.
2

TEST PROPORCIONALITY A ŠTRUKTURÁLNE ASPEKTY KOLÍZIE ZÁKLADNÝCH PRÁV

75%
Kukliš Ľ.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2013
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vol. 96
|
issue 1
50 – 66
EN
The article deals with the principle of proportionality, which, despite being very well-known and widely used in other European countries, has received quite a reluctant treatment in Slovakia. It was only in 2009 that the principle of proportionality was dealt with in an upto-date fashion by Constitutional Court of the Slovak Republic in two cases concerning freedom of speech. The article uses these cases as an example through which it tries to explain the structure, origins and ideas underlying the principle of proportionality with special regard to Robert Alexy’s theory of balancing of constitutional rights.
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