“Milenković v. Serbia” — poštovanje načela ne bis in idem ili pravda” na bis ?

Author(s): Zorka Pantelić / Language(s): Bosnian,Croatian,Serbian / Issue: 25/2016

Iako znatno stariji od krivicnog prava kao akademske discipline, jedan od njegovih elementarnih postulata — nacelo ne bis in idem, tacnije problemi koji uporno egzistiraju u vezi sa poštovanjem ovog nacela — iznova je aktuelizovan. Od svih grupa principa na kojima se temelji krivicni postupak, viševekovna prisutnost pravila ne bis in idem i istrajan rad (radi njegovog utemeljenja) pravnih mislilaca i relevantnih pravosudnih instanci kao da nije doprineo njegovom pojednostavljivanju i notornosti. Naprotiv, taj problem je umesto sublimacije, dobio nove forme i pokazuje tvrdokornu upornost da se sporadicno pojavljuje u gotovo identicnim formama, kako u mikro sredini (gledano u odnosu na jedan pravni sistem) tako i na širem podrucju — svojevrsne makro celine, u koju bi spadale države pod nadzorom Evropskog suda za ljudska prava (ESLJP). Pored novih oblika povrede nacela, prisutan je trend kontinuiranog ponavljanja slicne greške iz jednog pravnog sistema u drugi.

“Moj narod” pred registrarom Internacionalnog suda

Author(s): Edin Šarčević / Language(s): Bosnian,Croatian,Serbian / Issue: 28/2017

Uz objašnjenje, da je znao za odluku Internacionalnog suda o nedostajućoj legitimaciji advokata Softića još u maju prošle godine, citiran je u elektronskim medijima stav Bakira Izetbegovića: “Ostavku neću podnijeti jer mislim da činim ono za šta me moj narod i izabrao”. Dakle: činim ono za šta me je moj narod izabrao!

“Neurolaw: its current state and perspectives for future development”

Author(s): Author Not Specified / Language(s): English / Issue: 1/2018

“Njeriu i Kanunit” në një shoqëri post-socialiste

Author(s): Nebi Bardhoshi / Language(s): Albanian / Issue: 8/2009

Në këtë esejemi përpjekurtë argumentojmë nevojën për një përqasje kritike të proceseve transformuese në periudhën post-socialiste, në lëmin e antropologjisë juridike. Në fokus të analizës sonë do të jetë marrëdhënia e pronësisë nga pikëpamja e “Njeriut të Kanunit” që ka lëvizur nga fshati në rrethinat e qytetit. Studiues të së drejtës kanunore kanë shprehur idenë se kanuni ka vdekur, pak a shumë pas Luftës së Dytë Botërore. Ndërsa disa të tjerë, i referohen kanunit si sistemit të vetëm që banorët e malësive zbatojnë, qoftë kjo dhe në periferitë e qytetit në periudhën post-socialiste. Për mendimin tonë, të dyja teoritë nuk qëndrojnë plotësisht. Për më tepër, si përqasja centraliste ligjore, nga pikëpamja e së drejtës kanunore, ashtu dhe ajo shtetërore, nuk qëndron. Të dyja këto pikëpamje kanë penguar përtë kuptuarse, përtej nivelit sesi duhet të jetë njësistem, ka sisteme dhe praktika të cilat gjallojnë në jetën sociale e duhen analizuar dhe studiuar, dhe dinamika e tyre formon kontekstin lokal të kulturës juridike. Shembull për këtë është dukuria e ndarjes së tokës sipas kanunit, dhe ajo e pushtimit të tokës apo e zënies së saj, pa lejen e autoriteteve shtetërore. Në periudhën që flasim “Njeriu i Kanunit” është subjekt i së drejtës, si sa i takon të drejtës kanunore, ashtu dhe asaj shtetërore. Raporti në mes këtyre dy sistemeve ndryshon në vartësi të forcës shtrënguese të secilit sistem, dhe sigurisht dhe legjitimitetit moral të secilit. Ne jemi përqendruar më shumë te baza legjitimuese në nivel lokal, duke përfshirë këtu dhe funksionin që luan në këtë mes ideologjia neoliberale, e cila përfaqëson një gjedhë të centralizimit ligjor, dhe rëndësia e saj shtohet, kur bëhet fjalë që kjo ideologji kërkon të zbatohet në një vend që i ka hyrërrugës sëintegrimit në Bashkimin Europian, duke i dhënë një domethënie të veçantë natyrës së kalimit nga Lindorja te Perëndimorja.

“Parsimonia atque tenuitas apud veteres custodita sunt” Certain Aspects of Laws Preventing Extravagant Expenditures in Roman Law

Author(s): János Erdődy / Language(s): English / Issue: 1/2017

Sumptuary laws, the legislative measures of the Roman republic and early imperial era, were aiming to restrain extreme and extravagant expenditure via limiting the amount of money spent on feasts, games, funerals, weddings and other social events. Not much interest is shown in sumptuary laws: contemporary jurisprudence regards it as a limitation of property, a minority of authors deem these laws the results of a social legislation, whereas earlier secondary works put a stress on their historic impact. As a first step in the detailed research of the topic of sumptuary laws, this paper intends to give an outline of the actual content of these laws, in a chronological order. Such a primary source-based analyses could serve as the first step towards a better understanding of the Roman concept of limitation of property.

“Peoples”: The Perspective of International Public Law

Author(s): Lina Laurinavičiūtė / Language(s): English / Issue: 1/2013

The article deals with the application rationae personae of the right to selfdetermination. Relying on the existing international legal framework, decisions of the judicial bodies and doctrine, the author analyses conceivable beneficiaries of the above-mentioned right: the inhabitants of Trust and Non-Self-Governing territories, peoples under foreign occupation, the entire population of a state and subgroups within a state.

“POLICE LAW” OF THE FREE CITY OF CRACOW IN THE YEARS 1815-1846

Author(s): Paweł Cichoń / Language(s): English / Issue: 1/2018

The aim of the article is to describe, on the one hand, the police authorities and, on the other hand, to present the tasks and competences implemented by these authorities in the field of public order and security in the Free City of Cracow (1815-1846). The legal bases defining the broad spectrum of police tasks were mentioned. These included the fight against begging, vagrancy, passport policy, population registration, protection of con-sumer interests and rights, building, sanitary and fire safety, maintenance of peace, cleanliness and order in Cracow and the fight against crime. Attention was also drawn to the reasons for issuing such rules of legal relations. In conclusion, the common features of "police law" acts and the meaning of the word "police" used in the Free City of Cracow were pointed out. The article was written using a formal-dogmatic method and a chron-ological-subject structure. It is the first and so far, the only scientific study presenting legal regulations concerning the title subject.

“Psychology and Law. Bridging the Gap”, ed. by David Canter & Rita ukauskiene

Author(s): Jan Widacki / Language(s): English / Issue: 3-4/2008

“PUBLIC INTEREST,” JUDICIAL REASONING AND VIOLENCE OF THE LAW: CONSTRUCTING BOUNDARIES OF THE “MORALLY ACCEPTABLE”

Author(s): ALEXANDRA V. ORLOVA / Language(s): English / Issue: 2/2017

Constitutional courts have a major role to play in not only defining such concepts as “public interest” and “public harm” but also in contributing to the process of shaping society’s perceptions of acceptable boundaries of citizenship and defining which individuals and actions should be left outside the scope of the “morally acceptable.” In other words, constitutional courts are at the forefront of determining the extent to which the “plurality of values” can be accommodated in a democratic society, which interests take precedence and under what circumstances. This article examines the uncertain boundaries of “public interest” and the place of equality in regards to gay students within varying educational contexts. Through the examination of Trinity Western University case law, this article examines the capacity of judicial reasoning to either perpetuate violence or to find, identify and “transform the sources and effects of violence,” while recognizing the intersectionality of inequalities.

“REASON IN HISTORY” AND “PHILOSOPHY OF THE STATE” IN HEGEL’S VISION

Author(s): Gabriela Pohoaţă / Language(s): English / Issue: 01/2011

The main idea of this article signifies a new perspective on Hegel’s philosophy of history, implicitly on his social-political thought, repudiating any association of the German thinker with the political authoritarianism and even more with the political totalitarianism. A thinker, who appeals to a metaphysical theory of the spirit to give substance to freedom, a central concept of his political philosophy, cannot generate a political theory that will annul freedom. The greatest Hegelian lesson of the comprehension of history is the one of dialectics. This dialectic of the spirit, in its freedom, is what Hegel designates in a general sense of the word as the law. Thus, the paradigm of his political thinking exceeds even the ethical paradigm of Greek antiquity, even if from spiritual point of view the law is inferior to ethics. That is the reason why, in the Hegelian conception, morality becomes part of the theory of the state

“Significant Disadvantage” Suffered by the Applicant as a New Admissibility Criterion before the ECtHR – Necessary Development or Too Far-Reaching...

Author(s): Katarzyna Holy / Language(s): English / Issue: 4/2012

The new admissibility criterion of “significant disadvantage” suffered by the applicant, introduced by Protocol 14 to the European Convention of Human Rights, remains one of the most controversial aspects of the reform. Intended to amend the system, at least to some extent, despite having been in force since 1 June 2010, it turned out to have a marginal effect in practice so far. Neither was the Court able to develop profound jurisprudence on the issue, nor it contributed to improving the efficiency of the Court’s work. On the other hand however, it is beyond any doubt that reforms within the Strasbourg system are necessary. Unless the new criterion is not detrimental to its fundamental principles, it might become very useful in filtering the most marginal cases. Nonetheless, apart from awaiting what the future in this field brings, it is moreover advisable to search for further solutions.

“Social Dumping” and “Letterbox Companies” – Interdependent or Mutually Exclusive Concepts in European Union Law?

Author(s): Joanna Ryszka / Language(s): English / Issue: 36/2016

This article investigates two interesting phenomena which exist within the framework of the European Union (EU) integration process, i.e. “social dumping” and “letterbox companies”. Taking into account recent EU legislative changes and commentaries in the available legal literature, it contends that the EU’s institutions and its Member States are aware of some negative effects that these phenomena may have for attaining one of the EU’s basic aims, that of a “highly competitive social market economy”, as provided in Article 3(3) (ex 2, as amended) of the Treaty on the European Union. The EU should be understood as being not only focused on the implementation of the Internal Market freedoms, but also the protection of social rights. “Social dumping”, and to a certain extent also “letterbox companies”, reduce the level of this protection. Posting of workers is a good example of an EU integration area where “social dumping” and “letterbox companies” occur on a quite large scale and create some real practical problems. If we can clearly understand the concepts underlying these phenomena and their possible relationships, it would be easier to find a solution to reduce their negative effect on the protection of social rights. This article researches these issues and presents possible solutions to problems they give rise to.

“STREET CHILDREN” PHENOMENON IN THE ROMANIAN SOCIETY

Author(s): Maria Pescaru,Cristina-Maria Pescaru / Language(s): English / Issue: 1/2019

The phenomenon of „street children "became more visible in Romania after 1989. Causes are related to family conditions: poverty, violence, alcoholism of parents, neglect or indifference leading to family break up. Another reason for the “street children phenomenon” is the child protection institutions, characterized by poor conditions and inadequate treatment received by staff. The vast majority of street youth live in groups because of the advantages of group life. The majority of street youth are consumers of toxic substances. The level of school education is quite low, many of them not knowing how to read and write, which explains the failure of school integration. Many street youth suffering from various medical problems due to limited access to health services. Much of street youth are exposed to sexual abuse and prostitution, especially girls. The main source of income is begging. The situation of economic exploitation among street youth is quite high. The current legislation is discriminatory for the street youth. Problems faced by street youth is the inefficiency of the system of social assistance. “Street children” stigma is unjust, but it continues to exist. The objectives of the investigation are: the influence of socialization agents (family) on why choosing the street life and detection of conditions which lead the child to choose life on the streets To achieve the case studies, we analyzed children's files which included: social inquiries made natural family child psychosocial children sheets, monitoring reports, psychological reports prepared by a psychologist.

“The Essence of Self Defense under Article 51 of UN Charter” - a Privilege or Priority

Author(s): Sindhu VIJAYA KUMAR / Language(s): English / Issue: 1/2011

While article 2, Para. 4 of UN Charter refrain all member states from threat or use of force against the territorial integrity or political independence of any states, or in any other manner inconsistent with the purpose of the United Nation, it is forbidding the state from indulging in war. Article 51 gives the right of self-defense and collective self-defense against aggression. Both the Article seems to have a diametrical approach with regard to the use of force, however there is consensus with regard to the concept of aggression. What the Article intent to prohibit is the aggressive war. Though war is a peremptory right of the state and is closely associated with the right to existence it is not absolutely an unconditional right. It is a last resort for existence; perhaps the right to wage war has undergone a dramatic change with the development and advancement of civilization among the nations and that’s why art. 51 gives them the right of self defense as a exceptional right under exceptional circumstance and as an eternal right for existence, so it’s clear that war do existence as a legal affirmation under UN Charter but with restriction. Hence the rights to self-defense can be exercised to protect states eternal right to existence. So let me put it in this way, self-defense is a right eventually exerted by almost all living creature, perhaps it would not be wrong to admit that it is the part of those eternal source which admits the right to existence. As such, it is the fundamental law, the first law of the nature to which all other law are subordinate. A state as a subject under international law has absolute right of self-defense. The act of self-defense is justified not only under customary international law but also under UN Charter. With the change in nature of international politics and the method of waging war whether the state practice of self-defense has become a privilege or a priority? With every action of negligence in battle field the states credibility of exercising the right to self-defense has become a debatable issue. However the practical approach of the executing the right of self-defense seems to be without any limitation and thereby raises objection on this right of the state. The interpretation of the act of self defense becomes extremely challenging when this right is executed practically without delimiting its scope, which is an issue of enquiry.

“The Free Conviction, Rising from within”: Julius Glaser and the Establishment of Trial by Jury in Liberal Austria

Author(s): Philip Pajakowski / Language(s): English / Issue: 2/2016

This essay examines the reform in criminal procedure promulgated in 1873 under Minister of Justice Julius Glaser. An aspect of the constitutional reforms associated with the establishment of the dual monarchy of Austria-Hungary, the introduction of trial by jury served to promote a sense of citizenship among the public. Glaser emphasized the centrality of the individual conscience of jurors in determining the verdicts in criminal trials and implicitly applied liberal values in evaluating the proper qualification of a well-developed conscience. The study relies on Glaser’s published writings and Austrian official documents.

“The Good Conduct Guarantee” and other Measures Comprised in GEO no. 51/2014 Amending and Supplementing GEO no. 34/2006

Author(s): Angelica Roşu / Language(s): / Issue: 2/2014

In this study we aimed to analyze the consequences of the introduction by Ordinance No. 51/2014 for amending and supplementing GEO No. 34/2006 concerning the procurement of a new procedural institution, namely the guarantee of good conduct guarantee during the judicialadministrative proceedings and judicial proceedings. In our opinion, however, the new measures introduced by the Act enunciated are able to generate, in equal measure, violating constitutional provisions of EU law, as well as the conventional duty rates (i.e. the norms enshrining the free administrative courts, the right of access to an impartial court, the right to effective remedy discrimination). In addition, we cannot equalize a solution to reject the appeal / complaint and the conclusion that the contractor / economic operator involved in the procedure is due an amount to the authority for its bad faith, the bad faith is not retrievable only in the solution of appeal / lawsuit, as long as through a different interpretation of the same text of the law, the courts solutions give rise to an uneven practice, becoming necessary to demonstrate the proof of bad faith or even serious misconduct in the exercise of procedural rights.

“The presumption of guilt” in the investigation of tax evasion crimes

Author(s): Ramona Mihaela Coman / Language(s): English / Issue: 15/2018

Although it is one of the fundamental principles of the criminal process, whose observance is required at all stages of the trial, and therefore in the criminal prosecution stage as well, the principle of the presumption of innocence is often "forgotten" or transformed into the "presumption of guilt" when a tax evasion crime is under investigation. The major interest in investigating these offenses is the recovery of the damage, which is why there is a need to find solvable persons who are involved in these activities. Due to the fact that most of the times it is difficult to prove their involvement, in practice one can notice a tendency to prosecute such persons for the simple fact of having purchased products or services from dummy companies. The article presents examples of judicial practice and seeks to argue the mistaken view of criminal investigation bodies in the light of European directives as well as ECJ jurisprudence.

“THE PRIMARY RESPONSIBILITY OF THE LICENCE HOLDER”: A PRINCIPLE OF EUROPEAN NUCLEAR LAW

Author(s): Handrlica Jakub / Language(s): English / Issue: 3/2017

The very special nature of radioactive waste triggers variable challenges to the allocation of responsibilities between the state and waste generators. To identify some clear delineation between the responsibility of the waste generator (operator of nuclear power plant, of a research reactor, reprocessing facility, or other industrial or medical licence holder) and that of the concerned state to protect its citizens, this contribution turns its attention to the legal framework created in this field of by means of European law. In order to identify some clear delineation between the responsibility of the waste generator (licence holder) and that of the state to protect its citizens, we turn our attention to the legal framework created in the field of radioactive waste management by means of European law. In the following parts, major legal instruments will be examined, analysing the allocation of responsibility between the waste generator and the state in whose territory radioactive waste is produced.

“The sun will shine only on free men” “Le soleil n'éclairera plus sur la terre que des hommes libres” (Condorcet)

Author(s): Gabriela Vasilescu / Language(s): English / Issue: 3/2015

Freedom is inseparable from the knowledge of the laws. This is an idea that the article seeks to develop, showing the development of legal concepts during the modern era. A decisive factor for knowing and complying with legal laws is the education level within a social space. Social inequalities can be reduced only through knowledge and recognition of the rights and liberties of every social subject. Punishment balances the presence of justice in the relations between citizens. In the Romanian medieval legal language stands a proper term, that of common law. It deserves clarification in order to be distinguished from the legal norm and to trace its presence in the collective mind.

“Unutarnja” kriza pravosuđa? Stavovi pripadnika pravničkih profesija o pravosuđu u Hrvatskoj i Srbiji

Author(s): Danilo Vuković,Marko Mrakovčić / Language(s): Croatian / Issue: 01/2019

In this paper we analyze attitudes of members of the legal professions in Croatia and Serbia with regards to the judicial systems – the trust in judicial institutions and satisfaction with their performance. In the first part of the paper we present arguments of the cultural and institutional approach to explaining the foundations of trust in institutions, then define the characteristics of a “good” judiciary in the context of the democratic rule of law, and present the socio-political context of judicial reform in both countries over the last twenty years. In the second, empirical part of the paper we analyze the data collected through the online survey conducted among members of the legal professions in 2018 in Croatia and Serbia. The results from both countries show a low level of trust in judiciary and deep dissatisfaction with the functioning of judiciary on a list of dimensions. Our analysis confirms the link between (dis)trust in institutions and (dis)satisfaction with their work and thus also the assumptions of the institutional perspective on trust. We conclude that the obtained results point to an “internal” crisis of trust in judiciary in both countries, which accompanies the evident “external” crisis of the Serbian judiciary and the latent tensions in and around the Croatian judiciary.