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.

Did John really promise Mary to leave?

This paper contrasts finite and non-finite complement constructions containing the matrix verb promise. Using data from the British National Corpus, I show that when no explicit mention is made of the promissee the non-finite form of complement is overwhelmingly preferred to its finite counterparts. The exact opposite is the case when the promissee is mentioned between the matrix verb and the complement clause. In addition, the promiser in the x promise y to infinitive construction is almost always pronominal. I suggest that these two facts, the dispreference for the to infinitive form of complement when the promissee is mentioned and the pronominal encoding of the promiser in such cases, are both related to the very rarity of this form of construction in English. Data is adduced showing that another rare construction, the so-called possessive -ing construction, also occurs with a disproportionate number of pronominal subjects. It is suggested that the preference for pronominal subjects in these constructions may be related to a wish to reduce the overall processing complexity of the predications in question.

Imperatives in concessive clauses: compatibility between constructions

In his pioneering paper on “Performative Subordinate Clauses,” Lakoff (1984) claimed that subordinate clauses expressing a reason or concession allow imperatives conveying statements (i.e. assertive illocutionary force). While this analysis has gone unchallenged to this day, the present paper shows that Lakoff’s analysis is inadequate, in that reason and concessive clauses show a sharp contrast in the kinds of imperative utterances they permit. Contra Lakoff, concessive clauses with although, though and except (that) do allow imperative constructions conveying directive illocutionary forces to occur, whereas by contrast those with even though tend to disallow both types of imperatives. These findings can be explained in terms of compatibility between “component” constructions constituting a complex sentence. It is argued that the compatibility between imperatives (both directive and assertive types) and concessive adverbials (excluding even though) can be attributed to the latter’s loose integration into a matrix clause required by the former. Furthermore, it is argued that the incompatibility of even though with imperatives arises primarily from the incompatibility between the tight integration of even though and the loose integration required by imperatives, together with the associated incompatibility between the non-rectifying function of even though and the rectifying conjunction favored by imperatives.

Thematic and Situational Features of Chinese BBS Texts

This study adopts the framework of Systemic Functional Grammar (SFG; Halliday, 1994/2000; Halliday & Matthiessen, 2004) to investigate thematic features in messages sent to an electronic bulletin board system (BBS) in mainland China. As a concept derived from the Prague School, theme in SFG has been identified as “the point of departure of the message; it is that which locates and orients the clause within its context” (Halliday & Matthiessen, 2004, p. 64). Thematic features in the Chinese data are found to relate to the situational features of the BBS, the analysis of which is based on the frameworks of Biber (1988) and Herring (2007). The relevant situational features are further generalized into the three components of context: field, tenor, and mode (Halliday & Hasan, 1985) in order to examine the relation between thematic features and situational features. The study’s findings show that thematic features are more closely related to the field (nature of the activity) than to the mode, contrary to Halliday’s (1978/2001) claim that theme, as a realization of the textual meaning, is determined by the mode (medium). In concluding, this discrepancy is explored.

Interoperabilität von Software Art. 6 der Comperterprogramm-Richtlinie aus heutiger Sicht

This article reviews Article 6 of the Software Directive and discusses the need for a revision. Beyond clarification of the scope of the very limited provision on reverse engineering, it seems that the introduction of the clause into copyright was unfortunate. The indirect protection of ideas by prohibiting reverse engineering is foreign to the copyright concept. Permitting reverse engineering altogether would promote research and development and further other goals like ICT security. Innovation would not be retarded, which is the reason why US trade secret law permits reverse engineering based also on economic arguments. The notions of compatibility Article 6 tries to address are better dealt with by Competition Law, which was demonstrated by the Microsoft Decision of the European Court in 2007.

Person-sensitive TAME marking in Galo: Historical origins and functional motivation

Scott DeLancey’s analysis of person-sensitive TAME marking in Lhasa Tibetan – “a.k.a. conjunct-disjunct marking” or “egophoricity” – has stimulated considerable discussion and debate, particularly as previously little-known languages of the Tibeto-Burman area, as well as outside it, have come to be described, and a wider range of functional factors have been taken into account. This chapter is intended as a contribution to this discussion, by presenting the first detailed analysis of person-sensitive TAME marking in a language of the Tani subgroup of Tibeto-Burman, namely Galo. Like Tournadre (2008), I find that person-sensitive TAME marking in Galo is not a grammaticalized index of person (“agreement”) nor of cross-clause subject continuity, but is instead a semantic index of an assertor’s knowledge state. Unlike in more westerly Tibeto-Burman languages, however, different construals of agency and/or volition do not seem to be factors in the Galo system. Thus, there are both similarities and differences underlying systems of person-sensitive TAME marking in different Tibeto-Burman languages; this suggests that further research - particularly, employing a diachronic perspective when possible - will be required before we can confidently characterize person-sensitive TAME marking from a pan-Tibeto-Burman (or broader) cross-linguistic perspective.

PolySynthesis 6.0 -- bicentennial edition

Even 197 years after its introduction, the notion of polysynthesis remains one of the most intriguing and controversial tools in the (morphological) typologist's toolbox. Several --occasionally contradictory--definitions have been proposed, employed for various purposes, and debated to this very day, but neither practitioners nor theoreticians have reached a comfortable level of consensus regarding its most effective and efficient form yet. The present talk maps the evolution of the notion, discusses its usefulness, and contends that the tool can be made better by updating it minimally with respect to its form and substantially with respect to its conceptual foundations. The former aspect of the update consists of making the notion more precise via explicit qualification; the latter bears relation to our arguably problematic understanding of the pairs lexical vs. grammatical and word vs. clause.

Politique étrangère suisse

Le conseiller fédéral Didier Burkhalter a pris la direction du Département fédéral des affaires étrangères (DFAE). – Le parlement a octroyé un crédit de 11.35 milliards de francs pour la coopération internationale 2013-2016. – Le Conseil fédéral a activé la clause de sauvegarde envers les Etats de l’UE-8. – Les questions institutionnelles ont continué à bloquer les relations bilatérales avec l’UE. – L’Allemagne et les Etats-Unis ont maintenu la pression sur la place financière suisse lors des négociations d’accords de double-imposition. – Le peuple a refusé l’initiative de l’ASIN « La parole au peuple ! ». – La Suisse a pris position sur le conflit syrien en instaurant des sanctions contre le régime. – La Suisse a fêté ses 10 ans d’adhésion à l’ONU et a reçu son secrétaire général Ban Ki-Moon. – La Suisse a accueilli à Berne le Prix Nobel de la Paix Aung San Suu Kyi et a ouvert une ambassade au Myanmar.

Population et travail

La population résidente permanente de la Suisse a franchi la barre des 8 millions de personnes en août de l'année sous revue. – Le Conseil fédéral a activé la clause de sauvegarde à l’égard des pays de l’Est de l’UE. – Le taux de chômage a légèrement augmenté. – Dans le cadre des mesures d’accompagnement à la libre circulation des personnes, le parlement a introduit la responsabilité solidaire dans le domaine de la construction. – Les salaires nominaux ont progressé de 0,8%, les salaires réels de 1,5%. – Le parlement fédéral s’est prononcé en faveur d’une libéralisation des heures d’ouverture des magasins de stations-services. – Le peuple a rejeté l’initiative « 6 semaines de vacances pour tous ».

God, the WTO – and hunger

Considering that endemic hunger is a consequence of poverty, and that food is arguably the most basic of all human needs, this book chapter shows one of the more prominent examples of rules and policy fragmentation but also one of the most blatant global governance problems. The three monotheistic religions Judaism, Christians and Islam are surprisingly unanimous about God’s prescriptions on hunger or, put theologically, on what can be said, or should be said, about the interpretations and traditions which, taken together, form the respective and differentiated traditions, identities and views of these beliefs on how to deal with poverty and hunger. A clear social ethos, in the form of global needs satisfaction, runs through both Jewish and Christian texts, and the Qur’an (Zakat). It confirms the value inversion between the world of the mighty and that of the hungry. The message is clear: because salvation is available only through the grace of God, those who have must give to those who have not. This is not charity: it is an inversion of values which can not be addressed by spending 0.7% of your GDP on ODA, and the implication of this sense of redistributive justice is that social offenders will be subject to the Last Judgement. Interestingly, these religious scriptures found their way directly into the human rights treaties adopted by the United Nations and ratified by the parliaments, as a legal base for the duty to protect, to respect and to remedy. On the other side the contradiction with international trade law is all the more flagrant, and it has a direct bearing on poverty: systematic surplus food dumping is still allowed under WTO rules, despite the declared objective ‘to establish a fair and market-oriented agricultural trading system’. A way forward would be a kind of ‘bottom up’ approach by focusing on extreme cases of food insecurity caused by food dumping, or by export restrictions where a direct effect of food insecurity in other countries can be established. Also, international financing institutions need to review their policies and lending priorities. The same goes for the bilateral investment treaties and a possible ‘public interest’ clause, at least in respect of agricultural land acquisitions in vulnerable countries. The bottom line is this: WTO rules cannot entail a right to violate other, equally binding treaty obligations when its membership as a whole claims to contribute to the Millennium Development Goals and pledges to eradicate extreme poverty and hunger.

After Bali: WTO Rules Applying to Public Food Reserves

Once more, agriculture threatened to prevent all progress in multilateral trade rule-making at the Ninth WTO Ministerial Conference in December 2013. But this time, the “magic of Bali” worked. After the clock had been stopped mainly because of the food security file, the ministers adopted a comprehensive package of decisions and declarations mainly in respect of development issues. Five are about agriculture. Decision 38 on Public Stockholding for Food Security Purposes contains a “peace clause” which will now be shielding certain stockpile programmes from subsidy complaints in formal litigation. This article provides contextual background and analyses this decision from a legal perspective. It finds that, at best, Decision 38 provides a starting point for a WTO Work Programme for food security, for review at the Eleventh Ministerial Conference which will probably take place in 2017. At worst, it may unduly widen the limited window for government-financed competition existing under present rules in the WTO Agreement on Agriculture – yet without increasing global food security or even guaranteeing that no subsidy claims will be launched, or entertained, under the WTO dispute settlement mechanism. Hence, the Work Programme should find more coherence between farm support and socio-economic and trade objectives when it comes to stockpiles. This also encompasses a review of the present WTO rules applying to other forms of food reserves and to regional or “virtual” stockpiles. Another “low hanging fruit” would be a decision to exempt food aid purchases from export restrictions.

Nominalization and nominalization-based constructions in Galo

This paper describes nominalization and nominalization-based constructions in Galo, a Tibeto-Burman language of the Tani branch spoken in North East India. Nominalizers in Galo are divided into primary and secondary sets, while nominalization-based constructions are divided into two types: nominalized clauses and clausal nominalizations. Both primary and secondary nominalizers help form nominalized clauses, which are uninflected, exhibit a genitive subject, and enter into nominal complement and relative clause constructions. Clausal nominalizations are formed by primary nominalizers only, may be inflected, exhibit a nominative subject, and in general take on a more main clause-like structure and set of functions. Following this basic description, the diachronic origins of Galo nominalizers are discussed, and the Galo forms and patterns are situated in terms of a broader typology of nominalization in Tibeto-Burman.

The Jurisprudence of the World Trade Organization 2014

In 2014, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) adopted seven panel reports and six Appellate Body rulings. Two of the cases relate to anti-dumping measures. Three cases, comprising five complaints, are of particular interest and these are summarized and discussed below. China – Rare Earths further refines the relationship between protocols of accession and the general provisions of WTO agreements, in particular the exceptions of Article XX GATT. Recourse to that provision is no longer excluded but depends on a careful case-by-case analysis. While China failed to comply with the conditions for export restrictions, the case reiterates the problem of insufficiently developed disciplines on export restrictions on strategic minerals and other commodities in WTO law. EC – Seals Products is a landmark case for two reasons. Firstly, it limits the application of the Agreement on Technical Barriers to Trade (TBT Agreement) resulting henceforth in a narrow reading of technical regulations. Normative rules prescribing conditions for importation are to be dealt with under the rules of the General Agreement on Tariffs and Trade (GATT) instead. Secondly, the ruling permits recourse to public morals in justifying import restrictions essentially on the basis of process and production methods (PPMs). Meanwhile, the more detailed implications for extraterritorial application of such rules and for the concept of PPMs remain open as these key issues were not raised by the parties to the case. Peru – Agricultural Products adds to the interpretation of the Agreement on Agriculture (AoA), but most importantly, it confirms the existing segregation of WTO law and the law of free trade agreements. The case is of particular importance for Switzerland in its relations with the European Union (EU). The case raises, but does not fully answer, the question whether in a bilateral agreement, Switzerland or the EU can, as a matter of WTO law, lawfully waive their right of lodging complaints against each other under WTO law within the scope of their bilateral agreement, for example the Agreement on Agriculture where such a clause exists.

Inversion, Obviation, and Animacy in Native Languages of the Americas: Elements for a Cross-linguistic Survey

Native languages of the Americas whose predicate and clause structure reflect nominal hierarchies show an interesting range of structural diversity not only with respect to morphological makeup of their predicates and arguments but also with respect to the factors governing obviation status. The present article maps part of such diversity. The sample surveyed here includes languages with some sort of nonlocal (third person acting on third person) direction-marking system.

Complex syntax in autistic spectrum disorders: A study with relative clauses

Background The few studies that have evaluated syntax in autism spectrum disorder (ASD) have yielded conflicting findings: some suggest that once matched on mental age, ASD and typically developing controls do not differ for grammar, while others report that morphosyntactic deficits are independent of cognitive skills in ASD. There is a need for a better understanding of syntax in ASD and its relation to, or dissociation from, nonverbal abilities. Aims Syntax in ASD was assessed by evaluating subject and object relative clause comprehension in adolescents and adults diagnosed with ASD with a performance IQ within the normal range, and with or without a history of language delay. Methods & Procedures Twenty-eight participants with ASD (mean age 21.8) and 28 age-matched controls (mean age 22.07) were required to point to a character designated by relative clauses that varied in syntactic complexity. Outcomes & Results Scores indicate that participants with ASD regardless of the language development history perform significantly worse than age-matched controls with object relative clauses. In addition, participants with ASD with a history of language delay (diagnosed with high-functioning autism in the DSM-IV-TR) perform worse on subject relatives than ASD participants without language delay (diagnosed with Asperger syndrome in the DSM-IV-TR), suggesting that these two groups do not have equivalent linguistic abilities. Performance IQ has a positive impact on the success of the task for the population with ASD. Conclusions & Implications This study reveals subtle grammatical difficulties remaining in adult individuals with ASD within normal IQ range as compared with age-matched peers. Even in the absence of a history of language delay in childhood, the results suggest that a slight deficit may nevertheless be present and go undetected by standardized language assessments. Both groups with and without language delay have a similar global performance on relative clause comprehension; however, the study also indicates that the participants with reported language delay show more difficulty with subject relatives than the participants without language delay, suggesting the presence of differences in linguistic abilities between these subgroups of ASD.