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Henning Glaser - Constitutional Jurisprudence

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Henning Glaser (ed.)

Constitutional Jurisprudence

Series: CPG Series of Comparative Constitutional Law, Politics and Governance

Volume 3 2016

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Son Soubert The Constitutional Courts and Councils: Which Future Direction? S. 281-288

„… 281 The Constitutional Courts and Councils: Which Future Direction? Son Soubert This Third …” „… . Therefore in this context, the Constitutional Courts and Councils face the difficulties brought in by these …” „… . Either for the Constitutional Courts or Councils, the attributions for the control exercised on the …”

Mirosław Wyrzykowski 10 Lessons in Constitutional Resilience S. 123-150

„… the Council was considered by the Constitutional Tribunal to contravene the constitutional order …” „… Part III. Country Studies 125 10 Lessons in Constitutional Resilience* Mirosław Wyrzykowski …” „… Polish constitutional history recorded a period of political upheaval in the years 2006-2007, and the …”

Jiunn-rong Yeh Politicization of Constitutional Courts in Asia: Institutional Features, Contexts and Legitimacy S. 215-236

„… Constitutional Tset of Mongolia (1992), the Constitutional Council of Cambodia (1993), the Constitutional Courts …” „… term. Like Thailand, Cambodia also set the number of its Constitutional Council at 9 and limited them …” „… Cambodia, the Constitutional Council is composed of 9 members whose term is limited to 9 years and …”

Henning Glaser Constitutional Jurisprudence – On the Function, Impacts, and Challenges of Constitutional Courts S. 11-50

„… Marbury-Court, the German Federal CC, the French Constitutional Council, the Taiwanese, South Korean or the …” „… Constitutional Council, 13 years after its foundation, single-handedly changed its role by a landmark decision …” „… : The Constitutional Council in Comparative Perspective, 1992, pp. 60 f. 31 The same is true for ther …”

Ingwer Ebsen Constitutional Jurisdiction – Functions and Operational Conditions of a Court Controlling the Constitutionality of State Action in a Democratic Constitutional State S. 67-88

„… Constitution of the 5th Republic in 1958. The French Constitutional Council (Conseil Constitutionel) is an …” „… under the term “referee of the political process” the Constitutional Council originally had only one …” „… and type 2 is not the only one possible. For the Constitutional Council has been subject to remarkable …”

Jau-Yuan Hwang Evolution of Taiwan’s Constitutional Court from 1948 to 2014: Emergence of an Active but Divided Court S. 259-280

„… . 79, Sec. 2. Until the early 1990s, the Constitutional Court was called the “Council of Grand …” „… , the Council of Grand Justices only issued two constitutional interpretations. In this sense, it …” „… 259 Evolution of Taiwan’s Constitutional Court from 1948 to 2014: Emergence of an Active but …”

Heru Susetyo The Indonesian Constitutional Court Between Judicial Activism and Judicial Terrorism S. 323-344

„… 323 The Indonesian Constitutional Court Between Judicial Activism and Judicial Terrorism Heru …” „… Susetyo A. Background The establishment of a Constitutional Court (Mahkamah Konstitusi, MK) as one of …” „… the judicial organs is one of the remarkable events in modern Indonesian constitutional history since …”

Titelei/Inhaltsverzeichnis S. 1-10

„… Councils: Which Future Direction? Son Soubert 281 The South Korean Constitutional Court: Defending …” „… Constitutional Jurisprudence Henning Glaser (ed.) Function, Impact and Challenges Nomos CPG Series …” „… of Comparative Constitutional Law, Politics and Governance 3 CPG Series of Comparative …”

Javier García Roca New Challenges of the Spanish Constitutional Jurisdiction and Judicial Communication S. 151-178

„… by means of individual complaint, Council of Europe, Venice Commission, and the Constitutional Court …” „… Spanish constitutional declaration (Title I), the European Convention on Human Rights of the Council of …” „… 151 New Challenges of the Spanish Constitutional Jurisdiction and Judicial Communication Javier …”

Robert Esser Independence and Impartiality of Courts – Human Rights Standards: Reflections on European Union Law, the Jurisprudence of the ECtHR and the “soft law” of the Council of Europe S. 89-122

„… Union Law, the Jurisprudence of the ECtHR and the “soft law” of the Council of Europe Robert Esser A …” „… Council of European Judges), Opinion No 3 (2002), p. 3, no. 9; p. 5, no. 17, p. 6, no. 22. 2 See CCJE …” „… cases.4 The German Federal Constitutional Court (Bundesverfassungsgericht) describes this impact as …”

List of Contributors S. 345-346

„… Councilor to His Majesty the King of Cambodia and former Member of the Constitutional Council of Cambodia …” „… 345 List of Contributors Slavica Banić Justice, Constitutional Court of the Republic of Croatia …” „… Governance (CPG), Faculty of Law, Thammasat University Yasuo Hasebe Professor of Constitutional Law …”

Bartosz Makowicz The Constitutionalization of Polish Law Through the Jurisdiction of the Polish Constitutional Tribunal S. 201-214

„… 201 The Constitutionalization of Polish Law Through the Jurisdiction of the Polish Constitutional …” „… piece of paper. B. The Creation of the Polish Constitutional Tribunal In 1982, under the rule of …” „… communism, a Constitutional Tribunal was created. It was activated in 1985 and made its first judgments in …”

Slavica Banić Activism and Self-Restraint of the Croatian Constitutional Court in the Constitutionalization of the Legal Order S. 179-200

„… the Act on the State Judiciary Council. This deeply affected Croatian constitutional justice because …” „… 179 Activism and Self-Restraint of the Croatian Constitutional Court in the Constitutionalization …” „… public power, whatever the medium of its exercise, to the discipline of constitutional procedures and …”

Yasuo Hasebe Constitutional Adjudications of the Supreme Court of Japan S. 237-258

„… 237 Constitutional Adjudications of the Supreme Court of Japan Yasuo Hasebe A. Organisation …” „… constitutionality of any law, order, regulation or official act’. The Court’s constitutional review authority …” „… inheres in its judicial power. It exercises constitutional review to the extent it is necessary to …”

doi.org/10.5771/9783845247373

Anja Schoeller-Schletter - Constitutional Review in the Middle East and North Africa

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Anja Schoeller-Schletter (ed.)

Constitutional Review in the Middle East and North Africa

Series: Nahoststudien. Middle Eastern Studies

Volume 4 2021

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Wissam Benyettou The Appointment of the Members of the Algerian Constitutional Council S. 33-46

„… Algerian Constitutional Council Wissam Benyettou Abstract Algeria has introduced a constitutional council …” „… Algerian Constitutional Council has increasingly parted from this model. By giving an account of the …” „… composition of the Constitutional Council and the appointment process through the past decades, the chapter …”

Nizar Saghieh Lebanon’s Constitutional Council: Access Blocked to Protect the Consensus System? S. 119-136

„… Lebanon’s Constitutional Council: Access Blocked to Protect the Consensus System? Nizar Saghieh …” „… Abstract The Lebanese Constitutional Council is vested with the power of assessing the constitutionality of …” „… Constitutional Council to decide on constitutionality of laws, this chapter discusses the historical background …”

Anja Schoeller-Schletter, Robert Poll Constitutional Courts and Councils in the Middle East and North Africa: Basic Facts and Figures S. 377-402

„… Annex Constitutional Courts and Councils in the Middle East and North Africa: Basic Facts and …” „… selection of constitutional review bodies in the region, mostly constitutional courts and councils. Whenever …” „… . 1. Algeria: Constitutional Council 2. Bahrain: Constitutional Court 3. Egypt: Supreme Constitutional …”

Francesco Biagi Constitutional Review in Algeria Following the 2016 Reform: With Particular Reference to the “Exception of Unconstitutionality” S. 93-118

„… Constitutional Council, namely the “exception of unconstitutionality”, which vests the ordinary courts (and in …” „… legislative acts before the Constitutional Council. This chapter aims to set out some preliminary remarks on …” „… – inter alia – major innovations in the field of constitutional review. The Constitutional Council – which …”

Francesco Biagi Constitutional Review after the Arab Spring: Reforms, Challenges and Perspectives S. 161-188

„… why constitutional courts and councils before the Arab Spring rarely acted as “counter-majoritarian …” „… why constitutional courts and councils before the Arab Spring rarely acted as “counter-majoritarian …” „… constitutional court or council (as in Morocco, Mauritania, Algeria, Tunisia, Egypt, Syria, Lebanon, Kuwait, and …”

Anja Schoeller-Schletter Mapping Constitutional Review in the Middle East and North Africa: Historic Developments and Comparative Remarks S. 11-32

„… constitutional courts, constitutional councils, supreme 1. 1 For recent developments in the region see …” „… Justices to Constitutional Courts and Councils: Impact, Controversies, and Reform”. Workshop held in …” „… : “Role and Jurisdiction of Constitutional Courts and Councils in Relation with other High Courts …”

Salma Waheedi Guarantees and Challenges of Judicial Independence: The Constitutional Courts of Kuwait and Bahrain as Case Studies S. 61-76

„… that it empowers the High Judicial Council to shape the composition of the Constitutional Court by …” „… membership of the High Judicial Council, which select appointees to the Constitutional Court. Lower court …” „… , represented by the High Judicial Council, to select the bench of the Constitutional Court. The process of …”

Sufian Obeidat The Independence of Constitutional Judges: The Case of Jordan S. 47-60

„… right to request the Court to interpret a constitutional provision is exclusive to the Council of …” „… The Independence of Constitutional Judges: The Case of Jordan Sufian Obeidat Abstract This study …” „… aims to demonstrate why the independence of constitutional judges in Jordan is undermined. The study …”

Fawaz Almutairi The Extent of the Authority of the Constitutional Court of Kuwait to Annul an Elected Parliament: The Cases of the 2012 Parliaments S. 229-258

„… tasked the Supreme Judicial Council members with selecting the Constitutional Court justices through …” „… the Judicial Council or membership issues thereof may be submitted to the Constitutional Court11. The …” „… The Extent of the Authority of the Constitutional Court of Kuwait to Annul an Elected Parliament …”

Titelei/Inhaltsverzeichnis S. 1-10

„… undertaken without the close and unwavering cooperation of the constitutional courts and councils of the …” „… . I am especially indebted to Issam Sleiman, former President of the Constitutional Council of Lebanon …” „… Algerian Constitutional Council 35 Wissam Benyettou The Independence of Constitutional Judges: The Case of …”

Salma Waheedi Islamic Sharia in the Legal Orders of Saudi Arabia and Kuwait S. 307-328

„… provides a background and overview of the place and role of Islamic law in the constitutional orders of …” „… Saudi Arabia and Kuwait. It discusses the place of Islamic sharia in the constitutional structure, court …” „… assumptions, that the inclusion of a commitment to Islam in a given constitutional order does not simply lead …”

Rainer Grote Constitutional Courts and Supreme Courts: A Difficult Relationship S. 77-92

„… , this approach requires the constitutional court or council to proceed to the interpretation of the …” „… constitutionnel. These powers limited the Constitutional Council to a preventive review of the constitutionality …” „… review was consistent with the constitution or not. Instead, like other constitutional courts the Council …”

Yussef Auf Judicial Review of Elections: The Egyptian Experience S. 209-228

„… Constitutional Court has frequently been interacting with the electoral issues by deciding on the legitimacy and …” „… Supreme Constitutional Court (SCC), established in 1969, which adjudicates on the constitutionality of …” „… the Supreme Constitutional Court which adjudicates on the constitutionality of the electoral laws …”

Nathalie Bernard-Maugiron Religious References in the Constitutions of the Arab World: Islamization of the Constitution or Constitutionalization of Religion? S. 271-290

„… Part IV: Role of Religious Law in the Constitutional Order Religious References in the …” „… chapter examines the different forms of constitutional consecration of religion in the constitutions of …” „… main challenges in the process of constitutional drafting in Egypt and Tunisia. These provisions …”

Fawaz Almutairi The Kuwaiti Constitutional Court and its Role in Protecting the Fundamental Liberties S. 137-160

„… The Kuwaiti Constitutional Court and its Role in Protecting the Fundamental Liberties Fawaz …” „… Almutairi Abstract The chapter relates to the Kuwaiti constitutional judiciary and deals with the issue of …” „… , whether directly or indirectly, on women in the rulings of the Constitutional Court of Kuwait. We will …”

Laith K. Nasrawin Challenging the Validity of Membership of the House of Representatives in Jordan S. 259-270

„… France, access to the French Constitutional Council is restricted to raising the question of …” „… unconstitutionality.17 Complaints reach the Constitutional Council only if the highest civil or administrative court …” „… electoral procedures were violated, whereas the constitutional control relates to the extent the Law of …”

Gertrude Lübbe-Wolff Integrating or Polarising? How to Promote Integrative Decision-Making in Constitutional Courts S. 189-208

„… Integrating or Polarising? How to Promote Integrative Decision-Making in Constitutional Courts …” „… Gertrude Lübbe-Wolff Abstract For constitutional courts to be able to activate the integrative function of …” „… constitutional theories of integration such as Rudolf Smend´s, which have tended to concentrate on symbolic …”

Rainer Grote The Changing Constitutional Framework of Church-State Relations in Europe S. 329-344

„… challenged before the Constitutional Council (Conseil constitutionnel) – can be seen as a reaffirmation of …” „… The Changing Constitutional Framework of Church-State Relations in Europe Rainer Grote Abstract …” „… on a more secular, religiously diverse character in the post-World War II era, the constitutional …”

List of Authors S. 403-405

„… of Public Law of Kuwait University, Kuwait City. He specializes in the constitutional law and the …” „… jurisprudence of the Constitutional Court of Kuwait. Fawaz Almutairi publishes in Arabic and English. Yussef Auf …” „… , LL.M (Cairo), is a legal/constitutional expert whose work focuses on constitutions and constitutional …”

Angelika Nußberger, Rike Sinder The Jurisprudence of the European Court of Human Rights on Sharia Law S. 345-376

„… concern for pluralism and democracy within the Member States of the Council of Europe. Against the …” „… intervention at the Conference in Beirut on “Mapping Constitutional Control in the MENA region. Recent …” „… Developments, Challenges and Reform Trends”, April 15–17, 2019. 345 the Council of Europe. Due to migratory …”

doi.org/10.5771/9783748912019

Cordula Stumpf, Friedemann Kainer, Christian Baldus - Privatrecht, Wirtschaftsrecht, Verfassungsrecht

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Cordula Stumpf (ed.), Friedemann Kainer (ed.), Christian Baldus (ed.)

Privatrecht, Wirtschaftsrecht, Verfassungsrecht

2015

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Wolfgang Wessels Dynamics of the integration process: The European Council as driver of the 'Integration Spiral' in the EU’s constitutional evolution S. 1305-1312

„… Council as the regulatory summitry of national leaders has taken up the role of a constitutional architect …” „… national sovereignty. Through its activities, the European Council has acted as constitutional architect …” „… , December 1977). As an important pre-constitutional step, the European Council created the informal, purely …”

Jörg Monar Solidarity between Member States as a constitutional principle of the European Union? Progress and limits in the case of the “area of freedom, security and justice” S. 1029-1036

„… Solidarity between Member States as a constitutional principle of the European Union? Progress and …” „… thus be regarded as an essential value, a constitutional conditio sine qua non, and this must apply …” „… – via the Member States – one of citizens. Solidarity in a constitutional sense remains therefore …”

Carl Michael von Quitzow Hjalte’s Legacy: On The Struggle between National Legislators and The EU-Court S. 1099-1111

„… constitutional assumptions as the U.S. Constitution: the division of powers. Fundamentally, the common political …” „… institutions have been modelled on the basis of accountability. The members of the Council are accountable to …” „… checks lies at the citizens’ level, the voters. This seems quite logical. Both the Council and the …”

Gerard-René de Groot, David A.J.G. de Groot Civil status and the freedom of movement in the EU S. 1420-1426

„… Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members …” „… , 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ 2004, L 158, 30.4.2004, p. 77. 3 Council Directive 2003/109/EC …” „… is not bound. Furthermore, the 2. 4 Council Regulation (EC) No 2201/2003 of 27 November 2003 …”

Titelei/Inhaltsverzeichnis S. 1-39

„… constitutional principle of the European Union? Progress and limits in the case of the “area of freedom, security …” „… Dynamics of the integration process: The European Council as driver of the 'Integration Spiral' in the EU’s …” „… constitutional evolution 1305 Wolfgang Wessels Unionsagenturen – Eine Chance zur Demokratisierung der EU? 1313 …”

doi.org/10.5771/9783845264783

Armin Hatje, Lubos Tichý - Liability of Member States for the Violation of Fundamental Values of the European Union

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Armin Hatje (ed.), Lubos Tichý (ed.)

Liability of Member States for the Violation of Fundamental Values of the European Union

Series: Sonderheft Europarecht

Volume 2018

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Jiří Zemánek Constitutional remedies of persons facing consequences of the Council decision on suspension of certain Member State´s rights S. 229-232

„… Constitutional remedies of persons facing consequences of the Council decision on suspension of …” „… certain Member State´s rights By Jiří Zemánek, Prague* If the Council decides to suspend certain of the …” „… rights deriving from the applica‐ tion of the Treaties to a Member State, „the Council shall take into …”

Laurent Sermet Comparative study on enforcing common values against subnational units, member states in federations and other international organizations. De societatis et de civitatis S. 109-124

„… translated in English by “standing” (i.e. by the services of constitutional Council). It is clear, however …” „… Constitutional Council, France, 20 January 1981, Decision n° 80-127 DC, Loi renforçant la sécurité et proté …” „… citizens before the law "without distinction as to origin, race or religion", the Constitutional Council …”

Mirosław Wyrzykowski Rule of Law: European Commission v. Poland S. 169-200

„… Barrister’s Council, on the other hand, filed an amicus curiae brief with the Constitutional Tribunal …” „… the Constitutional Tribunal. Under pres‐ sure, the President of the Council of Ministers reluctantly …” „… December 2015 amending the Act on the Constitutional Tri‐ bunal (K 47/15), the President of the Council of …”

Rudolf Streinz Principles and values in the European Union S. 7-22

„… the existence of a constitutional court at all, but at least the separation of powers and the inde …” „… effect concerning national, especially constitutional law are shrinking. Moreover, Member States only …” „… for the Rule of Law. It describes the “rule of law” as “the backbone of any modern constitutional …”

Aalt Willem Heringa Fundamental rights, EU membership and Art. 7 TEU S. 59-72

„… and sufficiently power‐ ful national judiciary which will have to secure the constitutional balance …” „… /or independence of a constitutional court 3. the Framework mechanism specifically with regard to …” „… ECHR, application of the Charter * Professor of comparative constitutional law, Maastricht University …”

Tomas Dumbrovsky Beyond Voting Rights Suspension. Tailored Sanctions as Democracy Catalyst under Article 7 TEU S. 201-228

„… under Article 7 TEU By Tomas Dumbrovsky, Prague* Article 7 TEU empowers the Council to suspend certain …” „… rights derived from the application of the Treaties. The suspension of voting rights in the Council is …” „… assess the options the Council has, and devel‐ ops guidelines and suggests improvements of the …”

Ewa Bagińska, Sylwia Majkowska-Szulc Causation as a requirement for the Member State liability under Art. 7 TEU in conjunction with Art. 2 TEU S. 125-144

„… 64 and 113/76, 167 and 239/78, 27, 28 and 45/79 (P. Dumortier Frères SA/Council), ECLI:EU:C:1979:223 …” „… Berg/Council and Commission), ECLI:EU:C:2004:665, ECR 2004, I-10225. 21 CFI, Case T-415/10 (Nexans …” „… October 2009 in Case C‑419/08 P (Trubowest Handel GmbH and Viktor Makarov/Council and Commission), mn 101 …”

Gavin Barrett Reflections on What the Rule of Law Means and its Significance at EU Level S. 23-38

„… Justice has nonetheless never sought to take it beyond the status of a primary constitutional principle …” „… principle of constitutional value7 – and not just any princi‐ ple, at that, but a defining one, “commonly …” „… recognized as one of the foundational principles undergirding and legitimating all European constitutional …”

Emmanuel Sur From the uncertain to the implicit (passing by the problematic). Reflections on the reference to the rule of law and on its protection in the Treaty on European Union S. 39-58

„… breach”, the Council, acting by a majority of four fifths of its members after approval by the European …” „… “serious and persistent breach by a Member State”, the Council, acting unanimously this time on a proposal …” „… , security and justice”. 2 See L. Pech, The Rule of Law as a Constitutional Principle of the European Union …”

Luboš Tichý The nature and requirements for liability of a Member State under Article 7 TEU S. 85-108

„… importance of Art. 7 is that it is oriented in constitutional situations in the Member States and that the …” „… organisations use similar sanction mechanisms. For instance, the Statute of the Council of Europe contains a …” „… Member of the Council of Euro‐ pe which has seriously violated provisions of Art. 3 may be temporarily …”

Andreas Haratsch Democracy – A Value common to the Member States of the European Union S. 73-84

„… . Andreas Haratsch holds the Chair of German and European Constitutional and Administrative Law and Public …” „… European Constitutional Sciences at the University of Hagen/Germany. 1 Quoted in: W. Churchill, in …” „… only be democratic if its Member States are. As the European legal order demands the European Council …”

Michael Potacs Balancing Values and Interests in the Art. 7 TEU Procedure S. 159-168

„… . Moreover Art. 7 TEU gives discretionary power to the Council at all levels of its procedure. To exercise …” „… . 3 Communication from the Commission to the Council and the European Parliament on Article 7 of the …” „… . 5 See Communication from the Commission to the European Parliament and the Council. A new EU …”

Titelei/Inhaltsverzeichnis S. 1-6

„… Zemánek, Prague Constitutional remedies of persons facing consequences of the Council decision on …” „… . Second, since the European Union is not merely an as‐ sociation of states, but a polity of constitutional …” „… comprehensive analysis requires bringing to‐ gether legal experts on European law, constitutional law, law of …”

doi.org/10.5771/9783845293721

Ellen Bos, Kálmán Pócza - Verfassunggebung in konsolidierten Demokratien

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Ellen Bos (ed.), Kálmán Pócza (ed.)

Verfassunggebung in konsolidierten Demokratien

Series: Andrássy Studien zur Europaforschung

Volume 13 2014

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Baldvin Thor Bergsson, Paul Blokker The Constitutional Experiment in Iceland S. 154-175

„… variegated composition of the popular protests. A member of the Constitutional Council, whom one of the …” „… years. The new government’s agenda included the idea of establishing a special Constitutional Council to …” „… only stipulated the election and mandate of a Constitutional Council but also proposed a Constitutional …”

András Jakab The Two Functions of a Constitution S. 78-104

„… , even the French Constitutional Council, originally conceived as a body resolving disputes between the …” „… Constitutional Council ventured into creating a catalogue of fundamental rights by declaring that this reference …” „… the regular courts that perform constitutional adjudication, i.e. the constitutional review of laws …”

Gábor Tóka Constitutional Principles and Electoral Democracy in Hungary S. 309-329

„… Teil IV FUNDAMENTAL LAW AND POLITICAL CULTURE OF HUNGARY Constitutional Principles and Electoral …” „… legislation lives up to the constitutional norms that are enshrined in Hungary’s 2011 constitution. Given the …” „… have experimented with since the early 1990s. Not least because of a constitutional provision mandating …”

Zoltán Balázs From the Invisible to the Historical Constitution S. 365-380

„… constitutional lawyer myself, my interest in the Constitution and competence is political philosophical. There …” „… term invented by László Sólyom, the first President of the Constitutional Court of Hungary.1 I will …” „… constitutional competence of the Constitutional Court. In 2011 Parliament passed the new Basic Law of Hungary and …”

Kálmán Pócza Kontroverse Verfassunggebung mit Kompromisslösung? Text und Kontext des ungarischen Grundgesetzes S. 211-231

„… of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee …” „… Pourbaix-Lundin and others, Parliamentary Assembly, Council of Europe, 25.01.2011. Doc. 13229: Request for the …” „… and Commitments by Member States of the Council of Europe (Monitoring Committee), 10.06.2013. EKINT …”

doi.org/10.5771/9783845251363

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