‘Children in Criminal Procedure – Friendly Law’

Analysis of the Government Draft Amendments to Some of the Legal Acts in Poland

Author(s): Marcin Wielec / Language(s): English Issue: 2/2021

The considerations undertaken in the scientific article constitute an analysis and evaluation of the solutions included in the government's legislative proposal aimed to change the provisions of the Code of Criminal Procedure, the Family and Guardianship Code, and the Law on the System of Common Courts with regard to the position of minor victims. The legislative initiative is a significant change that aims to improve the protection of children participating in criminal procedures. This legal act’s draft indicates the provision of a special position to children in the criminal procedure. If children happen to be the aggrieved parties in criminal procedures, they deserve to be met by the court and participants with exceptional awareness and sensitivity. I am of the opinion that the criminal procedure must be structured in such a way that the participating children feel safe. The judiciary should aim to be child-friendly. It is extremely important that children feel understood as well as they understand the new legal reality in which they find themselves. In this analysis, I have referred to the regulations on the protection of children's rights under the international law and the law of the European Union. In this study, I have laid emphasis on the point that the proposed legislative solutions should meet the assumptions of the European directives issued by the European Union institutions as well as the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, the main act on the protection of children's rights issued by the Council of Europe.

‘Gun Jumping’ in the merger implementation in the EU in light of the Altice Case

Author(s): Barbara Dufková / Language(s): English Publication Year: 0

The paper analyses the scope of the gun jumping prohibition in light of the judgment of the General Court in the Altice case (T-425/18). After introducing the facts of the case, it dives into the legal issues raised. It concentrates on the main areas of concern – the scope of Article 4(1) and 7(1) of the EU Merger Regulation, the pre-closing covenants in the transaction documentation and the exchange of information. The paper identifies four important implications of the Altice case. First, the case confirms that concurrent violation of notification and standstill obligation is possible. Second, it provides clearer guidance as to which pre-closing covenants may be regarded as granting the acquirer a possibility of exercising control over the target. Third, it confirms that a concentration may be implemented by pre-closing covenants regardless of their actual implementation. Finally, it makes clear that excessive information exchange may support the finding of decisive influence.

‘It’s not worth it, it’s just a bike’. Reporting property crimes in South-eastern European countries

Author(s): Valentina B. Pavlović Vinogradac / Language(s): English Issue: XLII/2020

The aim of this paper is to examine South-eastern European students’ experiences being victims of criminal offences against property or being witnesses to criminal offences against property; to compare the extent to which students reported the crimes they were victims of or had witnessed; and to examine their willingness to report a theft of property of minor value (bicycle theft) in a hypothetical victimization situation, considering their country of residence and previous experience of reporting. The survey was conducted by an online survey in seven countries of South-eastern Europe (Bosnia and Herzegovina, Montenegro, Croatia, Hungary, Northern Macedonia, Slovenia, and Serbia) on a sample of 1,419 students. The results indicate that a large proportion of property crimes go unreported, although most students are willing to report them.

‘The right to (decent) work. The right to everyone or “chosen” ones?’ The situation in Poland

Author(s): Agata Ludera-Ruszel / Language(s): English Issue: 1/2021

Work represents a particular economical, social and psychological relevance to the worker. Because of a personal dimension of work, that involves human beings, it cannot be separated from workers. The approach to human labour as not a market product, but as a human being, is contained in the statement that ‘labour is not a commodity’, firstly expressed in the International Labour Organization’s 1944 Declaration of Philadelphia. The reference to this assumption more recently on the occasion of the 100th anniversary of ILO activities clearly evidence that the history of labour has come full circle and the idea of decent work for workers has returned to being the centre of labour law regulations. The concerns relating to the inadequate protection of workers coincided in time with the transformative change in the world of work. With this in mind, it is then worth considering more deeply whether a decent job is an ‘exclusive’ and ‘luxurious’ ideal, and leave outside its scope a number of workers who are in need of protection because of their unique situation. The position of Poland in this picture will be analysed.

‘We condemn abusing violence against women’. The criminalization of domestic violence in Poland

Author(s): Magdalena Grzyb / Language(s): English Issue: XLII/2020

One can often hear Polish politicians saying there is no violence against women in Poland, since Polish men respect their women and women hold a strong position in Polish culture. The conviction rates for domestic abuse in Poland are indeed low, though the attrition rates are high. Every year, for approximately 75,000 registered cases of domestic violence, there are roughly 10,000 convictions. Most of the prison sentences are conditionally suspended. Protective orders or other punitive measures are seldom handed down. There is a visible reluctance on the part of the criminal justice system to punish and correct domestic abusers. One of the reasons is that domestic abuse provisions in the Polish Penal Code (Article 207 of the Polish Penal Code from 1997) criminalises a very different behaviour than is defined in the Counteracting Family Violence Act from 2005. Another, possibly even greater, reason is the culture of sentencing (both in general and of domestic abuse) within the Polish judiciary and the very strong conservatism of Polish decision-makers and society. The protection of family values by legislators and the judiciary is often enforced at the expense of the victims’ right to life and to a life free from violence. This article discusses the Polish system for preventing domestic violence, which was set up in 2005 and the construction and jurisprudence of crime described in Article 207 of the Polish Penal Code. In particular, the question of culpability raises many problems when it comes to prosecution. First, we must compare Article 207 with the definition of ‘family violence’ specified inthe Counteracting Family Violence Act and the Istanbul Convention. Then, I will explain how such an understanding and interpretation of Article 207 translates into the dynamics of sentencing and penal decision-making and the virtual ineffectiveness of both penal provisions (the lack of deterrent effect) and the system of counteracting family violence designed by lawmakers.

“Accompanying Migrants” as a Touchstone of the Realisation of the Synodal Church Idea. A Canonist’s Remarks

Author(s): Andrzej Pastwa / Language(s): English Issue: 9/2021

“Synodality is a style, it is walking together, and it is what the Lord expects of the Church in the third millennium” (Francis). The specific motto and wording of this study in the quoted “programme” thought of Pope Francis, articulated in the Address to Members of the International Theological Commission (2019). The Pope expresses appreciation for the extensive work of the Commission crowned with the “theological clarification” of the mentioned idea, and above all by demonstrating the importance in the perception of the mission of the Church today. If, in the opinion of the Holy Father, factual and competent expert argumentation, step by step, reveals the truth that “a synodal Church is a Church of participation and co-responsibility,” such a determination cannot remain without impact on the praxis of undertaking the most serious pastoral challenges of the present time — on various levels of realization: local, regional, and universal, including ecumenical commitment. This applies in its entirety to the creation of strategies and specific actions of the Church towards the growing phenomenon of human mobility, especially in its forms that manifest themselves as dramatic and devastating to families and individuals. What we mean here is the Church’s multi-track postulate — or more precisely: communion, synodal — efficiency (with its determinants: dynamics, efficiency, effectiveness), for which in 2016 Francis coined the term: “accompanying migrants”. Consequently, in recent years there have been a number of normative and operational activities of the present successor of St. Peter, which in our time — rightly called: “the era of migration” (Francis) — set a new trend of clothing/ embellishing the aforementioned critical area of salus animarum with synodal accents. As it is showed in the study, a canonist, with the horizon of the principle of ius sequitur vitam before his eyes, cannot remain passive towards the pressing challenges delineated here. Indeed, within the orbit of the study of canon law a weighty question appears — what conclusions of a canonical nature stem from the “millennium” project of the realization of the Synodal Church Idea.

“CSI: WARSAW” – Crime Scene Investigation Training at the University of Warsaw

Author(s): Kacper Gradoń / Language(s): English Issue: 62/2016

The author presents the position of forensic and investigative sciences within the framework of legal education at Polish universities. The paper confronts the traditional scope of the highly theoretical criminalistics/forensics courses with the modern and innovative hands-on workshops designed and successfully employed at the Faculty of Law and Administration, University of Warsaw. The educational project nicknamed “CSI: Warsaw” was designed in order to mitigate the pop-culture driven and unrealistic expectations of the general public towards the potential and effectiveness of the investigative sciences (an approach known as the “CSI Effect”). The practical course of crime scene analysis, evidence collection and interpretation became and instantly popular and sought-after part of the University of Warsaw curriculum. The paper describes the outline and structure of the course, providing the description of the students’ selection process, the nature of the highly realistic, hands-on and real-time exercises and their assessment, as well as the practical effects for the course graduates when they enter the job market in the legal and law-enforcement professions.

“Dispersed” Public Authority in Labour Law: Systematic Dilemmas in Law Continued

Author(s): Anna Musiała / Language(s): English Issue: 1/2021

The doctrinal discussion on personal data protection regulated by the EU regulation, i.e. the GDPR, appears to re-create a vibrant and never-ending debate on the private law nature of the employer who does not implement the principle of freedom of contract when concluding a contract of employment. Because it is simply an entity pursuing public interests. The social labour inspector is a prototype of data protection officer in the field of labour law. As a matter of fact, he is also executing this “dispersed” public authority in labour law.

“Everything in their power”: a gloss to the European Court of Human Rights’ judgement in the case of Tsezar and Others v. Ukraine

Author(s): Kateryna Krakhmalova / Language(s): English Issue: 4/2020

This gloss summarizes and analyzes one of the recent key judgments of the European Court of Human Rights’ (ECtHR) in the case concerning Ukraine, while considering the context of hybrid warfare and the special place case-law of the ECtHR has in the Ukrainian legal system. The judgement addresses both: the right to access to the courts and the issue of suspended social payments due to hostilities, the extent of obligations of the state defending itself against aggression towards its nationals and the delicate balance between security, human rights and humanitarian considerations; and as such has much deeper relevance and applicability than to Ukraine alone.

“I Proved in Court that I am Not a Camel”: Everyday Law among Businesspeople in Russian Local Communities

Author(s): Maria Sakaeva / Language(s): English Issue: 1/2020

While the rule of law has been an important topic of research for entrepreneurship in transition economies, the relationship entrepreneurs have with the body of law remains understudied. This article explores everyday legality among politically affiliated and non-affiliated business people in Russia; that is, the role of laws, written rules, standards, and requirements in their everyday business activities. Drawing on interviews and participant observations in Russian communities, I trace how an individual’s political position impacts the ability of small entrepreneurs to navigate paperwork and bureaucracy. Utilizing a sociological approach to explore the behaviour of the law among business people, my research demonstrates that although bureaucracy and written rules affect all entrepreneurs, multiple facets of the law constrain or promote an individual’s access to opportunities in different ways. I found that political affiliation strengthens the power to succeed in the bureaucratic game, and to protect one’s interests through court appeals. In contrast, non-affiliated entrepreneurs are limited in their capacity to deal with Russian bureaucracy, and to litigate the state using legal procedures. The main conclusion of the research is that political affiliation is the most significant line of differentiation and inequality among small and medium-sized enterprises because it affects their legal knowledge, their strategies for coping with paperwork, and their opportunities to mobilise the law. In addition, the study of small entrepreneurs also shows that in contemporary Russia everyone depends greatly on the power of the bureaucratic machine, rather than on the power of the law.

„DOBRÁ VÍRA“ VE SPOTŘEBITELSKÝCH SMLOUVÁCH – DOBRÉ MRAVY, PŘIMĚŘENOST NEBO POCTIVOST?

Author(s): Blanka Vítová / Language(s): Czech Issue: 1/2013

The principle of good faith – as it has been taken from the literal wording of the directive in the English version is not suitable for the Czech legal environment. Although the Czech translation of the directive uses the term „contrary to the requirement of proportionality“, the Czech legislation in art. 56 uses a vague concept of “contrary to the requirement of good faith”. The article focuses on the concept good faith in connection with the consumer contracts and proposes institutes which are more suitable for this field of law.

„Oni vám už toho císaře pána vyženou z hlavy.“ Hostinský Palivec, Jaroslav Hašek a trestný čin velezrady

Author(s): Marek Starý / Language(s): Czech Issue: Coll./2011

Die Abenteuer des braven Soldaten Schwejk gehören unbestreitbar zu den weltberühmten tschechischen literarischen Werken des 20. Jahrhunderts. Es ist wahrscheinlich weniger bekannt, dass der Autor zweimal wegen Hochverrat währen des 1. Weltkrieges beschuldigt war. Der Beitrag zeigt die Veränderungen der Definition dieses Delikts im Laufe des 20. Jahrhunderts und befasst sich mit der Frage, inwieweit Jaroslav Hašek die österreichische Rechtsordnung gekannt hat. Er widmet sich auch der Frage ob es heute möglich ist, die Reflexion des wirklichen, damals geltenden Rechts zwischen den Zeilen der grotesken Ereignisse des Haupthelden zu finden.

„OPRÁVNĚNĚ“ NEOPRÁVNĚNÁ DRAŽBA MOVITÝCH VĚCÍ DLE ZÁKONA Č. 120/2001 SB., O SOUDNÍCH EXEKUTORECH A EXEKUČNÍ ČINNOSTI („EXEKUČNÍ ŘÁD“) – TRESTNĚPRÁVNÍ

Author(s): Jan Vylegala / Language(s): Czech Issue: SUPPL./2008

This contribution reacts to selected current legal problems and describes some of the results of the distress of the personal property, especially criminal liability of the distrainer and the Crime of Abuse of Powers of a Public Official and the Crime of Fraud. The distressed sale of the personal property which was listed by the distraining enforcers, causes this criminal liability of the distrainer, because the making of the list of the personal property by the distraining enforces is illegal. In general, act contrary to law cannot be convalidate by act under the law. The own distressed sale (the distressed sale itself) can be under the law. But if particular act is contrary to law (the making of the list of the personal property), the following act (the distressed sale of this personal property) must be also contrary to law. So if the distrainer make the distressed sale of the personal property which was listed by distraining enforcers, commits especially the Crime of Abuse of Powers of a Public Official and may commit the Crime of Fraud.

„Rychlé“ předběžné opatření v kontextu ústavního nálezu sp. zn. III. ÚS 916/1

Author(s): Jana Malá / Language(s): Czech Issue: 3/2017

The article is dealing with preconditions for precaution according to § 452 Code of Special Court Proceedings and § 924 Civil Code. Particular attention is paid to the question: Can be legal representative´s consent to hospitalization of a minor child be replaced by "quick" precaution? Moreover the issue is discussed in terms of current legislation with emphasis on the judicature of the Czech courts.

„Spory s finančněprávním, resp. daňověprávním prvkem a role soudu v nich….?“

Author(s): Zdenka Papoušková / Language(s): Czech Issue: 3/2019

This article discusses the issue of arbitration of tax courts. These theoretical findings are applied in the second part of the article to the institute of security order.

„Veta za vetu“ a osoba soudce

Author(s): Markéta Klusoňová / Language(s): Czech Issue: Coll./2011

The content of this paper is seeking to gain further insight into the problematic of selection of judges by using of thoughts and methods of the Law and Literature movement. The main emphasis is placed on the Czech law in this area and it’s comparison with processing of this issue in Measure for Measure, the play by William Shakespeare. Selection of judges is considered an important question of all times but during the evolution of democracy in the Czech Republic after the Velvet revolution becomes increasingly more severe. Unfortunately, public debate on this topic is still insufficient. Therefore, the general goal of this paper is a legal analysis of this topic, a summary of the recent legislation in the Czech Republic and it’ s comparison with Measure for Measure. The actual text is thematically divided in three main parts. The first part focuses on Shakespeare and his importance for law, the second part deals with a legal analysis of the question of selection of judges. In the following third part, few parts of Measure for Measure are chosen and commented with regard to our recent legislation. The aim of the whole text is to compare more than 500 years old English drama with the Czech legislation in the 21st century.

„ДВА ВЕКА САВРЕМЕНЕ УСТАВНОСТИ”

Author(s): Miodrag Jovičić / Language(s): Serbian Issue: 1-2/1988

ურ-ნამმუს კანონები

Author(s): Nino Charekishvili / Language(s): Georgian Issue: 7/2022

The Georgian translation of laws of Ur-Nammu - king of Uri, the founder of Uri III dinasty,’s (2113–2096 B.C.) - with comments, are presented in this article. Ur-Nammu’s code is the oldest codes of law, which has reached present period. Unfortunately, the existing material isn’t complete. It is written on cuneiform tablets, in Sumerian language 2100-2050 B.C.

ხეთური სასამართლო ოქმები: უქურასა და მისი ვაჟის, სალი-თარხუნთას სასამართლო პროცესი

Author(s): Maia Gambashidze / Language(s): Georgian Issue: 7/2022

Here are presented the Georgian translation and comments of the Hittite court records, where the accuser is presumably Puduhepa, the Hittite queen, the wife of Hatusili III (13th c. BC), and the accused - Ukura and her son - Sally-Tarkhunta, who as he seems to have held a high position at the palace.

بناء مقياس لمعرفة الميول المذهبيّة وتطبيقه

Author(s): Mohammad Jaber Thalgi / Language(s): Turkish Issue: 53/2020

This study aimed to construct and apply a scale to measure the doctrinal trends of a sample of Yarmouk University students, by using well-known doctrinal issues in purity and prayer topics from the four Islamic Sunni jurisprudence doctrines, namely, Ḥanafī, Mālikī, Shāfiīʿ, and Ḥanbalī. The study adopted an inductive method to select the jurisprudential issues and analytical descriptive methodology and used the questionnaire as a method to build the syllabus and apply it to the sample. The results of the study show that there are doctrinal distinctions between the students based on their home countries and regions. The results show, also, that most students mix more than one doctrine in their application of purity and prayer. More specifically, the results show that Jordanian students tend to use two doctrines, namely, Ḥanbalī and Shāfiīʿ; the Turkish students tend to follow two doctrines, namely, Ḥanafī and Shāfiīʿ; and Chinese students turn to three doctrines, namely, Ḥanafī, Shāfiīʿ, and Ḥanbalī. In South African countries, students turn to Shāfiīʿ in most cases and, then, Mālikī and Ḥanbalī in some cases. Thai and Malaysian students prefer Shāfiīʿ in most cases.