Innovations of the Constituent Convention in Chile: The Perspective From Public Participation and Environmental Rights

Author(s): Alexander Núñez Nova,Camilo Aguilera Ramírez,Jose Ledesma Romero,Benjamín Núñez Ochoa,Nicolás Yáñez Viveros / Language(s): English Issue: 56/2022

This paper, written by a group of participants of the Rapporteurship of Popular Participation ofthe Chilean Constituent Convention, shows innovative approaches of the ongoing constituentprocess in Chile, which started in 2021. It explores innovations both in the form and substanceof the process, which is a landmark in the constitutional history of the country. A brief context ofthe background of the constituent process is provided, and then some innovations concerningthe constituent body are discussed. Special attention is given to the process of electronic participationregarding voting on popular norm initiatives. Then, concerning substantive innovations,it focuses on environmental and climate change norms, with some final remarks on the future ofwater regulation contained in the draft of the new Chilean constitution.

Downsizing the Parliament in Italy: A Missed Constitutional Amendment and Façade Innovation

Author(s): Luca Castelli / Language(s): English Issue: 56/2022

In September 2020 a referendum on the reduction of the number of lawmakers was held inItaly and almost 70 percent of voters definitively approved it. Accordingly, effective next termof the chambers in 2023, the total number of MPs will be lowered from 945 to 600, more thanone-third. In particular, the Chamber of Deputies will be slashed from 630 to 400 and the Senatefrom 315 to 200. Such a constitutional amendment is a façade innovation as it did not addressthe very question of Italian bicameralism, namely the perfect identity between its chambers.

The Admissibility of the Detention of Minors in Guarded Centers for Refugees in the Context of the Principle of Best Interests of the Child

Author(s): Dorota Lis-Staranowicz / Language(s): English Issue: 56/2022

The glossed ECHR judgment concerns the extension of detention in a guarded center of an Armenianfamily seeking international protection. The Court has found that Poland breached art.5 par. 1 (f ) of the Convention for the Protection of Human Rights and Fundamental Freedoms.It has upheld its position expressed in the case of Bilalova and Others v. Poland (application no.23685/14), that “Various international bodies, including the Council of Europe, are increasinglycalling on States to expeditiously and completely cease or eradicate the immigration detentionof children. The Court has found that the presence in a detention centre of a child accompanyingits parents will comply with art. 5 par. 1 (f) only where the national authorities can establishthat such a measure of last resort was taken after verification that no other measure involvinga lesser restriction of their freedom could be implemented […]”. Therefore, the “rule of no recollection”operating in Polish legislation may be an additional test verifying the admissibility ofminors’ detention in guarded centers.

Ar baudžiamosios atsakomybės taikymas motinai už gimusio gyvybingo naujagimio sveikatos sutrikdymą, kai neteisėti veiksmai, sukėlę padarinius sveikatai, atlikti vaisiui esant įsčiose, nepažeidžia jos teisės į privatų gyvenimą?

Author(s): Benas Pečetauskas / Language(s): Lithuanian Issue: 2(26)/2022

Health, as a public good, is one of the greatest values of modern nations. Still, as the world and medicine and the legal system evolve, more and more complex issues begin to be examined. For many years now, legal scholars have been debating what constitutes a human being, from what moment a person is born, but it has recently been debated whether health can really only be protected from birth, or whether certain rights or legitimate interests may be protected even when the fetus is still in mother’s womb. It is usual that when the question of the protection of the fetus is raised, the rights of the mother are encountered as well. It is in this context that the woman's right to privacy is important. The mother’s right to privacy is increasingly being defended in a modernizing world. This right is not absolute and can sometimes be restricted by the rights of others. The fetus in the mother's womb may have a certain right to health, but its legal protection in each state begins at a different point in time. It is not clear whose interests need to be protected more: the mother's right to privacy or the fetus' right to health. During the research, the following elements were analyzed: the object of the crime against human health, the subject matter, the right to health, the moment of the beginning of life, the signs of vitality and the mother's right to privacy while drinking alcohol, smoking or consuming other harmful substances. An analysis of the legal systems of different states and an analysis of the practice of Lithuanian courts were also performed. The investigation has shown that the imposition of criminal liability on a mother for a serious damage for fetus’ health while the fetus is in the womb should not infringe her right to privacy, and that such a restriction on her rights is short-lived and avoids serious consequences for the fetus' health. First of all, during the research it was established that the beginning of life in Lithuania is connected with the moment of birth; the “pro choice” theory prevails. However, although the legislation does not directly provide legal protection for the fetus, recent case law has shown that in some cases additional fetal protection is provided for the fetus in the womb. An analysis of the mother's right to privacy has shown that the mother's right to privacy is indisputable, however, like many other rights of the individual, it may be limited and must be proportionate to the rights of others. The extent and importance of the potential harm in relation to the rights of others must be taken into account when assessing the mother's right to privacy.Finally, it has been established that the imposition of criminal liability on a mother for the impairment of the health of a viable newborn in the womb should not be considered to infringe her right to privacy, given that the restriction of the mother's right to privacy is short-lived and has no lasting effects on the fetus where a health disorder can have persistent phenomena for the rest of a person’s life. Fetal development has also been shown to be an integral process, starting from the moment of fertilization in the mother’s womb and lasting throughout his/her life. In this context, it should be considered that his/her interests should be protected to a certain extent.

ES finansinių interesų apsauga įsigaliojus direktyvai 2017/1371 dėl kovos su sąjungos finansiniams interesams kenkiančiu sukčiavimu baudžiamosios teisės priemonėmis. Lietuvos atvejis

Author(s): Reda Molienė / Language(s): Lithuanian Issue: 2(26)/2022

Annual reports submitted by the Member States to the European Commission showed systemic problems with actions detrimental to the Union's financial interests and significant budget losses. OLAF, the Union's main anti-fraud body with the power to conduct independent investigations at Union level, used to provide annual judicial advices to Member States on illegal activities identified in its investigations to the detriment of the EU's financial interests. Those independent investigations pointed that Member States, with exclusive competence in criminal law, having different non-harmonized national laws, considered that in some cases the actions identified and investigated by OLAF were insufficient for prosecution or not criminalized under national law at all, otherwise prosecution was no longer possible due to short statutes of limitations. Due to the non-harmonized list of criminal offenses, numerous obstacles to the application of criminal law and different limitation periods, the existing legislation could not ensure adequate protection of the financial interests of the Union. In 2009 with the entry into force of the Lisbon Treaty and the acquisition of a legal basis for directives by the European Union, the Directive 2017/1371 on combating fraud to the Union's financial interests by means of criminal law in 2017 July 5 set itself the objective – to establish minimum rules to ensure appropriate protection of the financial interests of the Union through harmonized criminal measures. The binding nature of the Directive obliges Member States to transpose it into national law, thus bringing Member States' criminal law into line with Union law. At first sight, the decision to regulate the protection of the financial interests by a directive seems to be a decisive step forward, but a review of the scientific literature, a comparison of the criminal code and the directive, and case-law analysis provide sufficient grounds for doubting its effectiveness. Directive 2017/1371 and EPPO are two new criminal law instruments designed to ensure the protection of the Union's financial interests. And if the EPPO, which is responsible for the protection of financial interests, is working less than a year and tangible results are not yet measurable, then, with regard to the Directive, Member States have already had to harmonize criminal law measures at national level. The theoretical and practical aspects of which are problems that are entirely new in the light of the period which has elapsed since the adoption and transposition of the Directive.The aim of the article is to evaluate the sources of scientific doctrine, legal acts and case law, assess the adequacy of transposing Directive 2017/1371 into Lithuanian law and identify difficulties in implementing the protection of the European Union's financial interests at Union level and comparing our country with selected Member States, whether the entry into force of Directive 2017/1371 on combating fraud to the Union's financial interests by criminal law measures ensures adequate protection of the financial interests of the Union. The following research methods are used in the work: analytical, comparative, logical, linguistic, value and systematic. The first part of the article analyzes the historical development of the Union's financial interests, reveals the concept, composition and significance of financial interests, compare the Directive and its objectives, define criminal offenses with previous Union legislation. The potential problems and strengths of the Directive posed by researchers are analyzed. The second paragraph sets out the task of assessing the adequacy of the transposition of the Directive into national law and of carrying out a practical analysis of the protection of the financial interests of the Union in the light of the case law. The third one examines the impact of the Directive on national law, amendments to the Criminal Code, also assesses and analyzes case law (Supreme Court of Lithuania) in the selected period (2010-2021), resulting in summaries and conclusions on the offenses identified in the Directive. In the final section of the work conclusions and recommendations are provided. The main one is that the objective of strengthening the protection of the Union's financial interests by harmonizing the definitions, sanctions and limitation periods for offenses against the Union's financial interests has been achieved in theory and formally. However, due to the sufficient freedom of Member States to harmonize national legislation and the minimum rules laid down in the Directive, both the wording of the acts themselves and the criminalization (sanctions and limitation periods) remain quite different after the entry into force of the Directive.

Particularităţile audierii bănuitului, învinuitului în cazul infracţiunilor ce ţin de circulaţia ilegală de droguri

Author(s): Constantin Rusnac,Nicolai Levandovski / Language(s): Romanian Issue: 6/2022

In the content of the article, the author examined all the typical situations that the criminal investigation officer may face during the questioning of the suspect and the accused, in the case of investigating drug-related crimes. The research does not have a general character, but is focused on the complex of questions that need to be addressed to the suspect, the accused, depending on the nature of the criminal act committed. In the same way, the subject of non-verbal behavior is treated as an integral part of the hearing.

Juliana Bidadanure: Justice Across Ages: Treating Young and Old as Equals

Author(s): Frederik Pfeiffer / Language(s): English Issue: 6/2022

This paper contains following book review: Juliana Bidadanure: Justice Across Ages: Treating Young and Old as Equals Oxford 2021: Oxford University Press, 256 pp.

Formalne i nieformalne zabezpieczenie emerytalne – postawy i oczekiwania Polaków wobec zmian demograficznych, społecznych i ekonomicznych. Kontekst europejski

Author(s): Sylwia Pieńkowska-Kamieniecka,Damian Walczak / Language(s): Polish Issue: 4/2022

The aim of the article is to discuss the importance of formal and informal sources of retirement security of Poles in the face of current economic, social and demographic changes. Formal sources are understood as the institutional pension security (regulated by law), while the informal source will be primarily considered to be family support (the so-called natural pension security). Following the introduction, the first section shows demographic trends in Poland and refers to pension security from the public pension system. The second section presents data sources and research methods used in the article. The third section shows the results of research on planned protection in old age. The fourth part discusses and concludes the results of the study. The research shows that not many Poles save for old age, counting on the support of the state and children.

O privire asupra neatîrnării statale a Moldovei medievale de la înfiinţare pînă la desfiinţare

Author(s): Octavian Bejan / Language(s): Romanian Issue: 6/2022

La théorie de l’oppression de la Moldavie (et Munténie) par la Porte Ottomane, largement partager aujourd’hui dans le monde scientifique, pourrait être fausse. Certains faits démontrent que la Moldavie (et la Munténie) a été dans des liaisons de paix et bonne entente avec la Porte Ottomane. On a existé une entente d’aide militaire entre les parties, selon laquelle la partie turc a assumé le devoir de défendre la Moldavie (et la Munténie) de tous envahisseurs, tandis que la Moldavie (et la Munténie) devait couvrir une partie des dépenses de défenses et laisser l’armé turc traverser sans entrave la Moldavie (et la Munténie) vers les points de luttes avec des autres pays. À tous autres égards (langue, croyance, économie…), chaque partie était entièrement indépendante. Cette entente a été la conséquence du pouvoir très grand des turcs et la division des pays et sociétés chrétiennes.

Jurisprudenţa CtEDO în materia respectării termenului rezonabil de soluţionare a cauzei penale

Author(s): Dinu Ostavciuc / Language(s): Romanian Issue: 6/2022

The respective article is dedicated to the analysis of the jurisprudence of the European Court of Human Rights in the matter of respecting the reasonable term for the resolution of criminal cases. Compliance with the reasonable term is a principle, but also a fundamental right of the person, guaranteed by art. 6 of the ECHR. The article also makes a comparative analysis regarding the general criteria for evaluating the speed of criminal proceedings. At the same time, the article analyzes whether the European Court establishes a standard duration for the examination of criminal cases by the Member States of the Convention, as well as the identification of the aspects that are taken into account by the Court when judging the complaints of the plaintiffs in cases of alleged violations of the term in question.

DE RIPA MUNIENDA (D.43.15) – OBALA U RIMSKOM PRAVU

Author(s): Samir Aličić / Language(s): Bosnian,Croatian,Serbian Issue: 8/2022

The subject of this paper is the interdict of the roman law de ripa munienda – on the river bank that needs repair, to which is dedicated a title of the Digest of Justinian of the same name. It provides protection to a person who performs works on the regulation of a river bank on his own property in regard of the disturbance by a third person. The goal of the research is to establish by exegesis of the sources to whom depends both active and passive legitimation for rising an interdict, and which are the conditions for its application, especially regarding the question what is intended under the notion of the “river bank“ at all and if the interdict can be applied for protection of works on the standing and other waters beside rivers too, also, in regard of the guaranty for the damage that could be inflicted by works to the third persons, and in regard of the condition according to which the works must not menace the navigability of the river.

SUDSKA PRAKSA USTAVNOG SUDA BOSNE I HERCEGOVINE

Author(s): Kenad Osmanović / Language(s): Bosnian,Croatian,Serbian Issue: 8/2022

SUDSKA PRAKSA USTAVNOG SUDA FEDERACIJE BOSNE I HERCEGOVINE

Author(s): Kata Senjak / Language(s): Bosnian,Croatian,Serbian Issue: 8/2022

Obiectele şi subiecţii dreptului de autor: aspectul juridic comparativ

Author(s): Olga Tatar / Language(s): English Issue: 6/2022

European Union legislation describes copyright in an economic point of view: “Copyright is the economic basis for the creative industry, as it stimulates innovation, creation, investment and production. Copyright is an important tool that guarantees remuneration for creative works”. Copyright in the objective sense is a set of civil law norms that regulate relations for the recognition of authorship and the protection of works of science, literature and art, the establishment of a regime for their use, the granting of non-property and property rights to their authors, the protection of the rights of authors and other copyright holders. In the subjective sense, copyright is those property and personal non-property rights that belong to persons who have created works of science, literature and art.

RETORICA RAŢIONALULUI ŞI EMOŢIONALULUI ÎN DISCURSUL JUDICIAR

Author(s): Lucia Cepraga,Andrei Nastas / Language(s): Romanian Issue: 12/2022

The purpose of this paper is to highlight the determining role of the indictment in the development of the lawyer's discursive skills, the efficiency of social and professional communication. Society is being continuously faced with various conflicts, some of which need to be resolved in court. The aim of the legal discourse is to demonstrate through linguistic and discursive skills the truth of the invoked theses. Therefore, there will always be parties that have opposing interests, interests that will be defended by specialized individuals who will seek to produce the most convincing arguments to win the case for the represented party. The study sheds light on the structural elements of an indictment, showcases the particularities of orality of legal discourse, highlights the importance of the quality of specialized language from a linguistic and logical perspective.

Crowdfunding jako źródło finansowania przedsiębiorstw w Polsce – problemy ekonomiczne i prawne

Author(s): Ewa Jasiuk,Roman Wosiek / Language(s): Polish Issue: 1/2022

The article focuses on a current and important issue called crowdfunding (i.e. social funding). At present, it constitutes a significant source of funding for companies in Poland. The authors try to define the process of crowdfunding in Poland both in economic and legal terms. Firstly, they discuss characteristic features determining crowdfunding and, what is more, models and types of crowdfunding. Secondly, a detailed analysis of legal regulations concerning social funding is conducted through the prism of national and the EU law. The research thesis presented in the article that there is a lack of regulations concerning crowdfunding and that there is a need to regulate the issue is verified and confirmed. It is worth mentioning that some activities aimed at regulating the processes of crowdfunding can be noticed. Unfortunately, there are still no complex legal regulations of the phenomenon in our country.

JURISPRUDENŢĂ ÎCCJ

Author(s): Not Specified Author / Language(s): Romanian Issue: 12/2022

With regard to the work of the High Court of Cassation and Justice (Complex for the resolution of a question of law), two decisions have been published concerning Law No 165/2013 on measures for the completion of the process of restitution, in kind or by equivalent, of properties wrongfully taken over during the communist regime in Romania; Framework Law No 153/2017 on the salaries of staff paid from public funds.

Dobbs V. Jackson: A Constitutional breakdown

Author(s): Arushi Bhagotra,Tejas Sateesha Hinder / Language(s): English Issue: 02/2022

Roe v. Wade, a 1973 landmark decision granting women in the United States (“US”) the right to have an abortion before the foetus is viable outside the womb before the 24-28 week period, was reversed by the US Supreme Court in a substantial restriction of women’s rights. The decision has been anticipated for a few weeks now following the disclosure of an early May draught opinion that shocked the nation and ignited demonstrations. Women have had access to abortion rights for more than two generations, but now each State will decide on them. Approximately 20 States have laws limiting or outright prohibiting abortions, according to information from the Associated Press. Currently that Roe has been overruled, legislation prohibiting the operation are now in force in thirteen states. The judgement provides no exceptions to women undergoing medically unsafe and life endangering pregnancies or pregnancies caused as a result of sexual assault of any form, leaving the option of creating those exceptions to the state legislation. This article, through a doctrinal and reform oriented approach, attempts to deconstruct, highlight and analyse issues of human rights, vis-à-vis the American Constitution that arise in lieu of derecognition of the right to abortion by the highest court of the United State of America, and thereafter highlight the impacts of the derecognition and pave the way forward for prospective reasonable judicial considerations so as to prevent continuing harm to human health and rights in lieu of such adverse impacts.

To be or not to be self-restraint? The role of the Constitutional Courts in shaping their powers and the consequences on constitutional reform

Author(s): Marieta Safta / Language(s): English Issue: 02/2022

The practice of constitutional courts worldwide reveals the growing importance they have on the evolution of constitutions through jurisprudential interpretation. From the “drawing” of some implicit limits of the amendment of the constitutions, as in the basic structure theory found in some constitutional systems, to the defining the fundamental rights, deduction of the procedures applicable in concrete situations not foreseen by the constituent legislators, or the strict staking of the legislation that we identify in other systems, constitutional courts are increasingly active in saying what the Constitution is. Starting from the concrete example of the Romanian Constitutional Court and its evolution within multilevel constitutionalism specific to the European Union, this study proposes a debate on the interpretation that the Constitutional Courts give to their own powers established by the Constitution. In the framework of the specific relationship between Courts in the European Union, this debate has a particular side, meaning the drawing of the limits of competence between the constitutional courts of the Member States and the Court of Justice of the European Union. However, the debate is of general interest because the observance of the limits of competence of public authorities and, from this perspective, the definition of these limits is a fundamental component of the rule of law. Expanding or not the powers of the constitutional courts and the way to achieve this objective is, in our opinion, a key issue of constitutional reform.

The role of the parliamentary opposition in observing the rule of law

Author(s): Alexandru Domşa / Language(s): English Issue: 02/2022

In a democratic regime, the political stage is shared between the representatives of the power and those of the opposition. While the power has both the right and the duty to make decisions and to govern, the opposition has, on the one hand, the role of ensuring an effective control of the power’s activity and of signalling its possible slippages or abuses, and, on the other on the other hand, the role of presenting alternatives to the policies of the power, as well as to the governing team. Given that the power occupies the foreground of this binomial, within the analysis of the rule of law, the specialized doctrine focuses most of the time on analysing the dynamics of the relationship between power and law. Without contesting the primacy of the power’s conduct in this equation, this paper aims to highlight the essential role of the parliamentary opposition in observing the rule of law. The level of institutionalization of the parliamentary opposition is the main indicator of the maturity of a democratic system and the existence of a developed opposition is an essential condition for observing the rule of law.