The Constitutional-Judicial Control of the Legislative and Executive Powers in Central and Eastern European Countries

This project looked at the nature, contents, methods, means and legal and political effects of the influence that constitutional courts exercise upon the legislative and executive powers in the newly established democracies of Central and Eastern Europe. The basic hypothesis was that these courts work to provide a limitation of political power within the framework of the principal constitutional values and that they force the legislature and executive to exercise their powers and duties in strict accordance with the constitution. Following a study of the documentary sources, including primarily the relevant constitutional and statutory provisions and decisions of constitutional courts, Mr. Cvetkovski prepared a questionnaire on various aspects of the topics researched and sent it to the respective constitutional courts. A series of direct interviews with court officials in six of the ten countries then served to clarify a large number of questions relating to differences in procedures etc. that arose from the questionnaires. As a final stage, the findings were compared with those described in recent publications on constitutional control in general and in Central and Eastern Europe in particular. The study began by considering the constitutional and political environment of the constitutional courts' activities in controlling legislative and executive powers, which in all countries studied are based on the principles of the rule of law and the separation of powers. All courts are separate bodies with special status in terms of constitutional law and are independent of other political and judicial institutions. The range of matters within their jurisdiction is set by the constitution of the country in question but in all cases can be exercised only with the framework of procedural rules. This gives considerable significance to the question of who sets these rules and different countries have dealt with it in different ways. In some there is a special constitutional law with the same legal force as the constitution itself (Croatia), the majority of countries allow for regulation by an ordinary law, Macedonia gives the court the autonomy to create and change its own rules of procedure, while in Hungary the parliament fixes the rules on procedure at the suggestion of the constitutional court. The question of the appointment of constitutional judges was also considered and of the mechanisms for ensuring their impartiality and immunity. In the area of the courts' scope for providing normative control, considerable differences were found between the different countries. In some cases the courts' jurisdiction is limited to the normative acts of the respective parliaments, and there is generally no provision for challenging unconstitutional omissions by legislation and the executive. There are, however, some situations in which they may indirectly evaluate the constitutionality of legislative omissions, as when the constitution contains provision for a time limit on enacting legislation, when the parliament has made an omission in drafting a law which violates the constitutional provisions, or when a law grants favours to certain groups while excluding others, thereby violating the equal protection clause of the constitution. The control of constitutionality of normative acts can be either preventive or repressive, depending on whether it is implemented before or after the promulgation of the law or other enactment being challenged. In most countries in the region the constitutional courts provide only repressive control, although in Hungary and Poland the courts are competent to perform both preventive and repressive norm control, while in Romania the court's jurisdiction is limited to preventive norm control. Most countries are wary of vesting constitutional courts with preventive norm control because of the danger of their becoming too involved in the day-to-day political debate, but Mr. Cvetkovski points out certain advantages of such control. If combined with a short time limit it can provide early clarification of a constitutional issue, secondly it avoids the problems arising if a law that has been in force for some years is declared to be unconstitutional, and thirdly it may help preserve the prestige of the legislation. Its disadvantages include the difficulty of ascertaining the actual and potential consequences of a norm without the empirical experience of the administration and enforcement of the law, the desirability of a certain distance from the day-to-day arguments surrounding the political process of legislation, the possible effects of changing social and economic conditions, and the danger of placing obstacles in the way of rapid reactions to acute situations. In the case of repressive norm control, this can be either abstract or concrete. The former is initiated by the supreme state organs in order to protect abstract constitutional order and the latter is initiated by ordinary courts, administrative authorities or by individuals. Constitutional courts cannot directly oblige the legislature and executive to pass a new law and this remains a matter of legislative and executive political responsibility. In the case of Poland, the parliament even has the power to dismiss a constitutional court decision by a special majority of votes, which means that the last word lies with the legislature. As the current constitutions of Central and Eastern European countries are newly adopted and differ significantly from the previous ones, the courts' interpretative functions should ensure a degree of unification in the application of the constitution. Some countries (Bulgaria, Hungary, Poland, Slovakia and Russia) provide for the constitutional courts' decisions to have a binding role on the constitutions. While their decisions inevitably have an influence on the actions of public bodies, they do not set criteria for political behaviour, which depends rather on the overall political culture and traditions of the society. All constitutions except that of Belarus, provide for the courts to have jurisdiction over conflicts arising from the distribution of responsibilities between different organs and levels in the country, as well for impeachment procedures against the head of state, and for determining the constitutionality of political parties (except in Belarus, Hungary, Russia and Slovakia). All the constitutions studied guarantee individual rights and freedoms and most courts have jurisdiction over complaints of violation of these rights by the constitution. All courts also have some jurisdiction over international agreements and treaties, either directly (Belarus, Bulgaria and Hungary) before the treaty is ratified, or indirectly (Croatia, Czech Republic, Macedonia, Romania, Russia and Yugoslavia). In each country the question of who may initiate proceedings of norm control is of central importance and is usually regulated by the constitution itself. There are three main possibilities: statutory organs, normal courts and private individuals and the limitations on each of these is discussed in the report. Most courts are limited in their rights to institute ex officio a full-scale review of a point of law, and such rights as they do have rarely been used. In most countries courts' decisions do not have any binding force but must be approved by parliament or impose on parliament the obligation to bring the relevant law into conformity within a certain period. As a result, the courts' position is generally weaker than in other countries in Europe, with parliament remaining the supreme body. In the case of preventive norm control a finding of unconstitutionality may act to suspend the law and or to refer it back to the legislature, where in countries such as Romania it may even be overturned by a two-thirds majority. In repressive norm control a finding of unconstitutionality generally serves to take the relevant law out of legal force from the day of publication of the decision or from another date fixed by the court. If the law is annulled retrospectively this may or may not bring decisions of criminal courts under review, depending on the provisions laid down in the relevant constitution. In cases relating to conflicts of competencies the courts' decisions tend to be declaratory and so have a binding effect inter partes. In the case of a review of an individual act, decisions generally become effective primarily inter partes but is the individual act has been based on an unconstitutional generally binding normative act of the legislature or executive, the findings has quasi-legal effect as it automatically initiates special proceedings in which the law or other regulation is to be annulled or abrogated with effect erga omnes. This wards off further application of the law and thus further violations of individual constitutional rights, but also discourages further constitutional complaints against the same law. Thus the success of one individual's complaint extends to everyone else whose rights have equally been or might have been violated by the respective law. As the body whose act is repealed is obliged to adopt another act and in doing so is bound by the legal position of the constitutional court on the violation of constitutionally guaranteed freedoms and rights of the complainant, in this situation the decision of the constitutional court has the force of a precedent.

Intersection of Tradition and Need of Change in Romanian Child Protection System

The reconstruction of the child protection system in the post-communist period so as to meet professional standards while responding to the needs of children is an enormous task. In order to understand the features of the current stage of the development of the Romanian child protection system and to evaluate its trends towards change, Roth-Szamoskozi analysed data from scientific literature and collected statistics to document the evolution of the child-protection structure. Empirical data collection using qualitative methods (content analysis of documents and interviews with staff) were designed to reflect the degree to which child welfare laws correspond to internationally accepted regulations and to analyse the attitudes of those working in the field at different decision-making levels. An experiment with a group of 12 students showed that there have been basic changes in the legal framework of Romanian child welfare. Students could see that the required principles exist in the new Romanian child protection law, but also identified areas which are still inadequately represented. 61 staff members working in child welfare agencies (both state and non-governmental) were also interviewed, using a systematic, circular interview. Using the criteria of competence and the existence of specific social goals, professionalism in solving social problems and respect for social-work values, the 30 non-governmental organisations were divided into three categories. The first (7 organisations) are active in the area, know the law and are fairly professional, the second (5) are motivated in their work with specific problems, but with no great competence. The 18 organisations in the third group have no competence in the social field and in issues concerning children and do only charitable work. The state agencies are still dominated by routine, but there were many staff members who were developing reform and strategic roles and were actively directing the system towards change. Many staff members in both governmental and non-governmental organisations were directing the system towards a stress on intervention in the interests of the child in the context of its family. Roth-Szamoskozi found that staff members felt the need of a more accurate evaluation system which would enable them to show their results more clearly.

Oral mucosal lesions diagnosed in a stomatology service. An examination of clinico-pathological findings from the year 2003

During 2003, a total of 258 new patients with oral soft tissue lesions were admitted at the Stomatology Service of the Department of Oral Surgery and Stomatology at the University of Berne. For the present study, 185 patients with clinically and histopathologically verified diagnoses were included. The following data was collected: prevalence of oral mucosal lesions, distribution of benign, precancerous and malign lesions in different age groups, and the concordance of the referral with the working diagnosis at the Stomatology Service. The most frequent pathological soft tissue findings were fibrous hyperplasias (n = 44) and oral lichen planus (n = 30). Precancerous lesions were present in 41 cases (30 patients with oral lichen planus, eleven oral leukoplakias), and ten patients had oral malignomas. Most lesions were found in patients between the age of 40 and 60 years. The referral diagnosis concurred in 36.6% (n = 67) of the cases with the definite diagnosis before initiation of treatment, the working diagnosis in 70% (n = 128) of the cases. Therefore, it can be concluded that a specialised Stomatology Service serves as a center of competence due to large numbers of patients/cases seen and treated, and the resulting high level of clinical experience of the staff. Moreover, it is important in the primary diagnosis of oral squamous cell carcinoma, in collaboration with the referring dentist in private practice.

Further concerns about self-assessment: are medical students aware of their progress in clinical skills during clerkship

Background: Medical students do not accurately self-assess their competence. However, little is known about the awareness of change of competence over time. The aim of this study was to evaluate if students are aware of their progress. Summary of work: Twenty-two fourth year medical students had self- and expert-assessments of their clinical skills in musculoskeletal medicine in an OSCE like station (4 point Likert scale) at the beginning (t0) and end (t1) of their eight weeks clerkship in internal medicine. Thirteen students were assigned to the intervention of a 6x1 hour practical examination course; nine took part in the regular clinical clerkship activities only and served as controls. Summary of results/Conclusions: The intervention students significantly improved their skills (from 2.78 ± 0.36 to 3.30 ± 0.36, p<0.05) in contrast to the control students (from 3.11 ± 0.58 to 2.83 ± 0.49, n.s.). At t0, 19 students, at t1 21 out of 22 students underestimated their competence. Correlations between the change of self- and expert-assessment were r=0.43, p<0.05 (all), r=0.47, n.s. (control) and r=-0.12, n.s. (intervention), respectively. Take-home message: Medical students improving their clinical skills by an interactive course in addition to their regular clerkship activities are not aware of their progress

On producing and sharing knowledge across boundaries: experiences from the interfaces of an international development research network

The number of large research networks and programmes engaging in knowledge production for development has grown over the past years. One of these programmes devoted to generating knowledge about and for development is National Centre of Competence in Research (NCCR) North–South, a cross-disciplinary, international development research network funded by the Swiss Agency for Development and Cooperation and the Swiss National Science Foundation. Producing relevant knowledge for development is a core goal of the programme and an important motivation for many of the participating researchers. Over the years, the researchers have made use of various spaces for exchange and instruments for co-production of knowledge by academic and non-academic development actors. In this article we explore the characteristics of co-producing and sharing knowledge in interfaces between development research, policy and NCCR North–South practice. We draw on empirical material of the NCCR North–South programme and its specific programme element of the Partnership Actions. Our goal is to make use of the concept of the interface to reflect critically about the pursued strategies and instruments applied in producing and sharing knowledge for development across boundaries.

Problem Solving Policing: Views of Citizens and Citizens Expectations in Germany

For the last two decades American police experts developed new police philosophies in order to tackle more successful the increasing crime problems. Community Policing tries to improve the cooperation between the population and the police and to increase the trust in the police. A crucial factor is a meaningful cooperation between the police and the citizens. Problem Oriented Policing aims at structural changes in the organisation and the procedures of the police in public. The police have to investigate the hidden problems and conflicts of an individual offence and to create proactive and long term concepts for the social area of conflicts beyond the specific case. It is doubtful whether these philosophies can be implemented in Germany since the legality principle prohibits meaningful, trustworthy relationships between citizens and police officers. However, if one examines the results of surveys on citizens views and expectations towards the police one finds that the majority of the German citizens favour the postulates of community and problem oriented policing. They expect through these measures an improvement of their life situation in the community and the feelings of safety. If one takes these results seriously one has to question if the legality principle is still appropriate. It seems to hamper new, more promising policing styles which seem to improve life of it's citizens and reflect what the citizens want and expect from their police force.

The Development of Social Work as a Speciality and the Profession in Estonia

For Estonia and its people social work is one of the vitally important fields that had to be built up from almost nothing since independence was regained in 1991. During Soviet times social work and social workers did not receive the necessary attention. Severe social problems were denied and kept hidden since according to official communist ideology, life in the Soviet Union was the best in the world and getting better all the time. Social workers did not receive specialised education and their functions were to be carried out by the workers of trade unions and the party, by teachers and by the workers of the personnel departments. In the 1990s big changes, having also an effect on social life, took place in the development of Estonian society. Concepts such as social work and social worker were rediscovered in Estonia. There are certain prerequisites for the success of any activity (including social work). One of the most important ones is being a professional, a worker with thorough preparation. Social work as an occupation requires specialised academic education, which is based on theoretical knowledge and practical skills that have been acquired through theoretical knowledge. Specialised knowledge is a foundation for attaining a specialised qualification. However, at the same time one has to keep in mind that social work as an occupation is constantly changing, there is no absolute knowledge - everything is relative, dynamic and changing (Tamm, 1998). The changing nature of the activity requires reflection by a social worker, who also has to be able to evaluate his/her work and its basis and learn from experiences. Academic specialised education implies also the development of a new professional identity and higher levels of competence. This underlines the necessity of specialised education.

The Law Applicable to Online Copyright Infringements int ALI and CLIP Proposals: A Rebalance of Interest Needed?

The article discusses the problems of applicable law to copyright infringements online. It firstly identifies the main problems related to the well established territoriality principle and the lex loci protectionis rules. Then; the discussion focuses on the "ubiquitous infringement" rule recently proposed by the American Law Institute (ALI) and the European Max Planck Group for Conflicts of Law and Intellectual Propoperty (CLIP). The author strongly welcomes a compromise between the territoriality and universality approaches suggested in respect of ubiquitous infringement cases. At the same time; the paper draws the attention that the interests of "good faith" online service providers (such as legal certainty and foreseeability) have been until now underestimated and invites to take these interests into account when merging the projects into a common international proposal.

Potentials and constraints of modeling for transdisciplinary co-producing strategies for sustainable water governance

Both climate change and socio-economic development will significantly modify the supply and consumption of water in future. Consequently, regional development has to face aggravation of existing or emergence of new conflicts of interest. In this context, transdisciplinary co-production of knowledge is considered as an important means for coping with these challenges. Accordingly, the MontanAqua project aims at developing strategies for more sustainable water management in the study area Crans-Montana-Sierre (Switzerland) in a transdisciplinary way. It strives for co-producing system, target and transformation knowledge among researchers, policy makers, public administration and civil society organizations. The research process basically consisted of the following steps: First, the current water situation in the study region was investigated. How much water is available? How much water is being used? How are decisions on water distribution and use taken? Second, participatory scenario workshops were conducted in order to identify the stakeholders’ visions of regional development. Third, the water situation in 2050 was simulated by modeling the evolution of water resources and water use and by reflecting on the institutional aspects. These steps laid ground for jointly assessing the consequences of the stakeholders’ visions of development in view of scientific data regarding governance, availability and use of water in the region as well as developing necessary transformation knowledge. During all of these steps researchers have collaborated with stakeholders in the support group RegiEau. The RegiEau group consists of key representatives of owners, managers, users, and pressure groups related to water and landscape: representatives of the communes (mostly the presidents), the canton (administration and parliament), water management associations, agriculture, viticulture, hydropower, tourism, and landscape protection. The aim of the talk is to explore potentials and constraints of scientific modeling of water availability and use within the process of transdisciplinary co-producing strategies for more sustainable water governance.

Vulnerability and Growth. Developmental dynamics and differential effects of the loss of an intimate partner in the second half of life. IP 12: Study outline and first results

This working report gives an overview of the Individual Project 12 “Vulnerability and growth. Developmental dynamics and differential effects of the loss of an intimate partner in the second half of life” of the Swiss National Centre of Competence in Research LIVES led by Pasqualina Perrig-Chiello, University of Bern. This longitudinal and interdisciplinary project aims at examining vulnerability and personal growth after a critical life event, namely the break-up of a long-term intimate relationship in the second half of life, be it due to divorce or due to bereavement. In this report we present details about the rationale, the main research questions, the hypotheses and the methods of the study. Special attention is given to the methodological approach. The authors give a first sample description and report on the validity of the data by comparing the sample with Swiss Labour Force Survey and Swiss Health Survey data.

Psychological adaptation to spousal loss in old age: The role of personality

Spousal loss is an inevitable critical life event for most individuals in old age, mostly associated with a negative impact on various well-being measures, ie. lower life satisfaction, higher rates of loneliness and depressive symptoms compared to married peers. While the negative effects on well-being are well documented in literature, the modifying factors accounting for the large variability in adaptation to loss are discussed controversially. The potential relevance of personality in the adaptation process has rarely been examined and findings regarding the role of time since loss are contradictory. Based on a vulnerability-stress-model this contribution aims a) to compare psychological well-being of bereaved individuals with married counterparts and b) to investigate the protective effects of different personality traits (Big Five, resilience), and the role of time since loss for adaptation in terms of life satisfaction, loneliness and depression. Data from a questionnaire study about the loss of a spouse in middle and old age in the German- and French-speaking parts of Switzerland are reported. The study is part of the Swiss National Centre of Competence in Research LIVES (Swiss National Science Foundation). The sample consists of 351 widowed persons (39% men, widowed since 0 - 5 years), and 605 married controls (50% men), aged 60 - 89 years. Group comparisons reveal the detrimental effect of spousal bereavement on all indicators of psychological adaptation. Results from hierarchical regression analyses show furthermore, that the effect of spousal loss on all psychological outcomes is moderated by personality traits. Separate analyses with the group of bereaved individuals suggest, that the protective effect of personality varies by the time passed since loss. Our results contribute to a better understanding of the variability in psychological adaptation to spousal loss in old age and give hints for counselling practice.

Head movement synchrony in social interactions of patients with schizophrenia indicates symptoms, cognition and social functioning

Background: Disturbed interpersonal communication is a core problem in schizophrenia. Patients with schizophrenia often appear disconnected and "out of sync" when interacting with others. This may involve perception, cognition, motor behavior, and nonverbal expressiveness. Although well-known from clinical observation, mainstream research has neglected this area. Corresponding theoretical concepts, statistical methods, and assessment were missing. In recent research, however, it has been shown that objective, video-based measures of nonverbal behavior can be used to reliably quantify nonverbal behavior in schizophrenia. Newly developed algorithms allow for a calculation of movement synchrony. We found that the objective amount of movement of patients with schizophrenia during social interactions was closely related to the symptom profiles of these patients (Kupper et al., 2010). In addition and above the mere amount of movement, the degree of synchrony between patients and healthy interactants may be indicative of various problems in the domain of interpersonal communication and social cognition. Methods: Based on our earlier study, head movement synchrony was assessed objectively (using Motion Energy Analysis, MEA) in 378 brief, videotaped role-play scenes involving 27 stabilized outpatients diagnosed with paranoid-type schizophrenia. Results: Lower head movement synchrony was indicative of symptoms (negative symptoms, but also of conceptual disorganization and lack of insight), verbal memory, patients’ self-evaluation of competence, and social functioning. Many of these relationships remained significant even when corrected for the amount of movement of the patients. Conclusion: The results suggest that nonverbal synchrony may be an objective and sensitive indicator of the severity of symptoms, cognition and social functioning.