Editorial

Independent magazine devoted to critical intellectual discourse

Peter Jambrek p. 3 abstract

Restriction of power in free and democratic society – Liber Amicorum in honor of professor's Šturm jubilee

On the occasion of life anniversary of prof. dr. Lovro Šturm

Jože Olup p. 7 abstract

Public (Official) Authority – Limitations and Exceptions Pursuant to the Treaty on the Functioning of the EU

Verica Trstenjak p. 14 abstract

Historical and Juridical Analysis of the Revolutionary Acts of 16 September 1941

Tamara Griesser-Pečar p. 33 abstract

Curriculum Vitae in Opus

Blaž Ivancp. 45 abstract

Curriculum Vitae in Opus

Lovro Šturmp. 51 abstract

Constitutional court decisions concerning the complaints of human rights violation – only after the free decision about their admission in the court?

Proposal for constitutional changes and strengthened constitutional discourse

Matjaž Nahtigalp. 75 abstract

The Individual’s Access to Constitutional Courts

Arne Mavčičp. 91 abstract

One historical and two current remarks about the reform of the Constitutional Court

Albin Igličar p. 108 abstract

Proposed Amendments to the Constitution, Discretion in Selecting Petitions and Constitutional Complaints for Examination, and Privileged Applicants

Jadranka Sovdatp. 115 abstract

Constitutional dilemmas concerning the Arbitration agreement regarding the border between Slovenia and Croatia

An Irreducible Epistemic Core of Slovenian Statehood?

Matej Avbeljp. 140 abstract

Arbitration agreement, constitutionality and sovereignty

Miha Pogačnikp. 151 abstract

How to Meet Demands Arising from the Constitutional Court's Opinion on the Arbitration Agreement?

Janez Čebuljp. 166 abstract

The nature of the Arbitration agreement

Tone Jerovšekp. 182 abstract

Constitutional Control of the Arbitration agreement between Slovenia and Croatia

Peter Jambrek p. 189 abstract

Discussions

Individual and family community risk

Alenka Temeljotov Salaj in Janja Černe p. 193 abstract

The Jurisprudential Nature of Human Rights

Rok Lampep. 215 abstract

Human dignity and ethical stance of reporters

Ennie Vardjanp. 243 abstract

The European Union has given a New Contract

Marija Minka Jerebičp. 254 abstract

Legal Argumentation and the Challenges of Modern Europe

International Conference on Legal Argumentation, Nova Gorica, 15 - 16 October 2009

Marko Novak p. 268 abstract

Antinomy between the General Principles of Law

Luka Burazin p. 275 abstract

National and International Value Systems, Fundamental Human Rights and Law

Jernej Letnar Černič p. 291 abstract

The (Ir)rationality of Judicial Decision-Making: the Typological Argument against a Rigid Separation between the Context of Discovery and the Context of Justification of Legal Decision

Marko Novak p. 307 abstract

Prof. dr. Verica Trstenjak

Abstract

The article analyses exceptions in the exercise of public (official) authority and employment in the public service in connection with fundamental freedoms of the EU, namely the freedom of establishment, the free movement of services and the free movement of workers. The article first explains the notions of "official authority" from Article 51 of the Treaty on the Functioning of the EU (TFEU) and "public service" from Article 45(4) of the TFEU, as defined by the European Court of Justice (ECJ) in its case law. The article further examines the case law of the ECJ in the field of the right of establishment in connection with the exception regarding the exercise of official authority from Article 51 of the TFEU (e.g. the case law regarding the right of establishment of notaries) and the case law regarding the free movement of services in connection with the exception regarding the exercise of official authority pursuant to Article 62 of the TFEU in connection with Article 51 and 56 of the TFEU (e.g. case C-404/05, Commission/Germany). Lastly, the article analyses the case law of the ECJ in the field of the free movement of workers in connection with the exception regarding employment in the public service pursuant to Article 45(4) of the TFEU (e.g. case C-460/08, Commission/Greece).

Key words

public (official) authority, public service, freedom of establishment, free movement of services, free movement of workers, case law of the European Court of Justice

Tamara Griesser-Pečar

Abstract

In Slovenia during World War II two types of events must be taken into consideration: the occupation and resistance, as well as revolution and counterrevolution. The communists organised the "Liberation front", through which they were able to attract several leftist groups to their side. On 16 September 1941 the Liberation Front monopolised the resistance against the enemy and declared that everyone who was organised outside was a traitor – including those who worked underground against the occupiers. And such traitors had to be sentenced to death. Many patriotic Slovenians were therefore "liquidated" by the "Security and Intelligence service" called VOS, a troop recruited solely from members of the Communist Party and communist youth organisation SKOJ. Prof. Dr. Lovro Šturm was the first jurist to evaluate the revolutionary acts of 16 September 1941, followed by Prof. Dr. Dieter Blumenwitz.

Key words

Liberation Front, security and intelligence service (VOS), monopolisation of the resistance, 16 September 1941, Communist Party

Doc. dr. Blaž Ivanc

Abstract

The purpose of this paper is to present the contribution of Professor Dr. Lovro Šturm in the area of constitutional and administrative law related to religious freedom (state-church Law). The article presents major works in this field written by Professor Šturm or under his guidance. In Slovenia Professor Šturm has not only raised the interest of legal science in state-church law, but has also laid the theoretical foundations for a new positive religious law in the democratic state of Slovenia. Therefore, it can be said that Professor Šturm is a founder of the modern religious law (German: "Religionsrecht") in the Republic of Slovenia, which is based on the protection of fundamental human rights and freedoms in a democratic and free society.

Key words:

religious law, freedom of religion, constitution, church, state

Matjaž Nahtigal

Abstract

The aim of the present article is to highlight certain features of the complex history of American constitutional discourse and constitutional practice, while pointing to another inadequately debated dilemma which accompanied the entire period of legal transition: the issue of legal transplants. To date, a number of hybrid solutions have proved to be problematic when we tried to combine individual legal solutions according to the Anglo Saxon legal system and others according to more or less accidentally selected solutions from the European legal system. This is why I advocate a more careful approach to searching for new legal solutions in our country; such an approach should stem from a more comprehensive debate about institutional capacity if we want to adequately and successfully address not only the current workload of the Constitutional court, but also other important legal issues.

Finally, I refer to other important, yet insufficiently debated topics of constitutional law and put forward some alternative proposals which may contribute to strengthening the constitutional discourse and constitutional democracy.

Key words

constitutional democracy, constitutional changes, Constitutional Court, judicial review, alternative possibilities of constitutional democracy