ADDED VALUE OF THE EU CHARTER OF FUNDAMENTAL RIGHTS TO OTHER HUMAN RIGHTS INSTRUMENTS

Author(s): Marcela Monica Stoica / Language(s): English Issue: Supliment/2016

After almost seven years since the Charter entries into force is still not yet an explicit and regular element in the procedures applied for scrutinising the legality or assessing the impact of legislation in the EU Member States. Other international human rights instruments, such as the ECHR, tend to be more systematically included in such procedures. So, this paper aims at analyzing one of the measure that can help at strengthen the Charter’s role in the legislative processes at national level. We shall focus on Article 51 (field of application) –that could part of the assessment of the impact and legality of draft legislation. Thus, we can conclude that the Charter is a added value not only in respect with other instrument regarding the human rights but also that can be a more complete instrument for the national legislation on human rights, that bring, indeed, an “added value” in this field.

CONSIDERATIONS ON THE LEGAL NATURE AND VALIDITY OF THE EU-TURKEY REFUGEE DEAL

Author(s): Constanta Matusescu / Language(s): English Issue: Supliment/2016

Equally concerned by migratory crisis, European Union and Turkey have negotiated a number of instruments during the last year, including a Joint Action Plan in October 2015 and a statement on 7 March 2016. The cooperation framework was completed on 18 March 2016, through the adoption of a joint statement, which took effect on 20 March. The EU-Turkey statement of 18 March 2016 appears criticisable for several reasons. The question is, beyond the moral and ethical issues, of the legal nature of this document and its legality in accordance with the rules of the European Union law and international law. By making an examination of the applicable provisions of international and European law, international and European jurisprudence and literature, the paper aims to identify the main reasons for that the EU-Turkey statement can be described as treaty, but a treaty whose legality is seriously affected.

FUNDAMENTAL RIGHTS AND FREEDOMS, A POSSIBLE TRIGGERING FACTOR OF RETHINKING THE LAW IN THE CONTEXT OF NEW MIGRATION CRISIS IN EUROPE

Author(s): Ioana-Cristina Vida / Language(s): English Issue: Supliment/2016

With the adoption of the Lisbon Treaty, the European Union reaches a new generation on the interpretation of human rights in relation to the action taken to achieve the objectives of social inclusion, economic growth and competitiveness. The European Union law is a relatively new legal construction in which human rights occupy a constantly developing position. In the light of recent events caused by the refugees’ crisis in the European Union, the EU law tends to be marginalized in favor of national restrictive measures that put national safety first at the expense of free movement. Ideally, it would be that both EU and Member State to rally simultaneously visible to the universal values of human rights and focus to identify fair and equitable balance between protection of human rights and security of the citizens. Migration is charactering the entire history of mankind, but in recent years has acquired a universal dimension.

FREE ACCESS TO NON-LITIGATIONS PROCEDURES FOR ASYLUM SEEKERS

Author(s): Ioan Zonga / Language(s): English Issue: Supliment/2016

To streamline the asylum system are the main existing instruments at international, European and national level which guarantees access to the asylum procedure. At European level reform legislation regarding common procedures for granting and withdrawing international protection and establishing standards for the reception of applicants for international protection, the State responsible for examining an asylum visas to family members, to implement a system Common European Asylum efficient, which is why Romania has complied and amended its national legislation. Bodies which promotes the rights of asylum seekers and refugees then collaborate effectively for improving reception conditions, avoiding the detention status of asylum seekers until final resolution of the asylum application. In all stages of the procedure to consider the special needs of vulnerable groups such as children, victims of torture, sexual violence or human trafficking, persons with physical or mental disabilities, and those subject to certain risks that you would life-threatening. In particular additional safeguards for asylum-seekers must be accompanied by minors. This includes the need to appoint a guardian or legal representative for the minor. Unaccompanied minors will be given extra care and protection and shall be free from all forms of violence, abuse or exploitation. It is mandatory that they be fully accommodated a specialized center for children. They will be held in centers which are not adapted to the presence of children.

ANALYSIS OF LEGISLATIVE CHANGES CONCERNING THE REGISTRATION OF IMMIGRANTS IN GERMANY

Author(s): Mădălina Cocoşatu / Language(s): English Issue: Supliment/2016

European Union's Common Policy on Asylum, Immigration, Visas and External Border Controls has the theme of Title V (Area of freedom, security and justice) of the Treaty on the Functioning of the European Union (TFEU). According to data from the Federal Statistical Office, 1.1 million immigrants have entered the territory of Germany in 2015, and of these, 500,000 have filed documents to apply for asylum. It found that there are inconsistencies in the level of activity of the five authorities in Germany that registers refugees. In this paper we analyze the legislative measures adopted or are being adopted to streamline the work of public authorities involved in the management of immigrants.

RECEIVING AND SOLVING PUBLIC INTEREST DISCLOSURES: LEGAL NATURE AND RESPONSIBILITIES IN MANAGING THEM

Author(s): Emil Bălan,Iulia Cospanaru / Language(s): English Issue: Supliment/2016

Whistleblowing - public interest reporting or disclosure made by a person working in the apparatus of a public entity, aware of details of the administrative activity, otherwise non-accessible to third parties or the general public - plays an important role in preventing or early detecting those situations in which non-compliance with the principles of administrative procedural law may affect the validity of documents, the performance of the legal competencies of the institution or citizens` rights. This paper explores the legal nature of the whistleblowing report and what are the legal obligations that derive from this nature, with the aim of identifying what are the institutional structures responsible to manage it, what role plays each of these structures and how whistleblowing complaints should be handled such as to maximize its benefits for the public institution.

THE CHECKS AND BALANCE OF THE STATE BRANCHES IN ROMANIA. AN ADMINISTRATIVE ASSESSMENT

Author(s): Mihaela Cărăuşan / Language(s): English Issue: Supliment/2016

This paper talks about the extent of public administration in connection to the separation and equilibrium of state’s power. This paper will try to address what the government of Romania has failed to address, which are the topics that must concentrate on enhancing its legal power as part of one state branch. This article focuses, also, on the links between the doctrine of the separation of powers and the concept of public administration in a cross-state branches perspective. Even if, the separations doctrine is at the root of the concept of public administration it remains unclear how administration relates to the other state powers. What is more, the doctrine proofs that public administration is an inner actor of the state’s branches and it can unbalanced or balance them.

BRIEF CONSIDERATIONS ON URBAN POLITICS FROM A CONCEPTUAL APPROACH

Author(s): Sonia Stoica / Language(s): English Issue: Supliment/2016

Today, most of the present political statements claim the necessity of reforming the administration, or even of simplifying of the administrative procedure. Thus, the purpose of this paper is to make some brief considerations on urban politics trying to find solutions in order to transform administration in the defender of the general interest and the needs of the citizens. We will approach this issue by presenting urbanism matter in comparison with the globalization effects.

SPECIFIC SANCTIONS OF EUROPEAN URBAN PLANNING LAW

Author(s): Andrei Dutu-Buzura / Language(s): English Issue: Supliment/2016

The competences of the European Union in matters of urban planning are, if not extremely limited, at least diffuse, and most certainly indirect. Without being expressly mentioned within the contents of the Treatises, they are revealed in other field of competence of the European structures, such as environmental protection or the economic, social, and territorial cohesion policies. Moreover, aspects relevant to sustainable development, more precisely the sustainable development of the territory of the EU, includes important aspects of urban planning law. Regarding sanctions, they usually are, and remain, in the exclusive competence of the national legal systems. However, we can identify, within the European regulations in this field (for instance, directive 2004/35/EC on environmental liability or recommendation no. 2001/331/EC), certain minimal legality criteria for the given domain, beyond which, in theory, we must find ourselves in the troubled area of (urban planning) unlawfulness. An important part is played, under these circumstances, by the case law of the European Court for Human Rights that has many a time stated on the conformity of the sanctions specific to urban planning law, to the contents of the European Convention of Human Rights.

Procedures for Ascertainment of Tax Violation and Imposition of Sanctions

Author(s): Nina Chilova / Language(s): English Issue: 2/2021

Tax penalty proceedings are part of the tax procedure. Its legal framework is regulated in the Tax and Social Insurance Procedure Code (TSIPC) and Administrative Violations and Sanctions Act (AVSA). Hence, the proceedings are normatively established and realized mainly in two phases. The first is associated with the ascertainment of tax violation and the issuance of an instrument on the ascertainment of such an offence. The second encompasses the imposition of the respective sanction, which materializes in the issuance of a penalty decree.

Interes publiczny w przymusowej restrukturyzacji

Author(s): Michał Dorociak / Language(s): Polish Issue: 1/2022

Resolution procedure was introduced into the Polish legal order by the Act of 10 June 2016 on the Bank Guarantee Fund, the deposit guarantee system and resolution. However, it was only three and a half years after the entry into force of this Act that the first case involving this resolution procedure was initiated against Podkarpacki Bank Spółdzielczy in Sanok. Three months later, similar proceedings were initiated against the Cooperative Bank in Przemków. These first two cases of launching resolution by the Bank Guarantee Fund allow us to make a preliminary analysis of the decision-making practice of the BFG in this matter. The analysis will not cover the decision of the BFG on the resolution of Idea Bank S.A., which, due to its much greater significance for the Polish financial system, deserves to be addressed separately. The article will focus in particular on examining the BFG’s approach to the ‘public interest’ aspect, which, according to Article 101(7)(3) of the Act of 10 June 2016 on the Bank Guarantee Fund, is a prerequisite for launching resolution. This premise is of key importance for the protection of the rights of holders of ownership rights and creditors of the entity under resolution, which are severely curtailed in the course of a procedure that may even lead to the write-off of ownership instruments and part of the liabilities. Ensuring that the authority does not interpret this premise too broadly is very important from an individual rights perspective. The article is structured as follows. The first section briefly discusses the resolution procedure. Then the public interest premise is described in more detail. The third section analyses the BFG’s approach to public interest in the above mentioned two resolution proceedings. Conclusions are presented in the last section.

Speculum Saxonum and Ius Municpale as Sources of Law in the Works of Tucholczyk

Author(s): Władysław Bojarski / Language(s): English Issue: 10/2020

The paper is an English translation of Speculum Saxonum i Ius municipale jako źródła prawa w dziełach Tucholczyka by Władysław Bojarski, published originally in Polish in “Annales Universtitatis Nicoli Copernici. Prawo” in 1987. The text is published as a part of a jubilee edition of the “Adam Mickiewicz University Law Review. 100th Anniversary of the Faculty of Law and Administration” devoted to the achievements of the late Professors of the Faculty of Law and Administration of the Adam Mickiewicz University, Poznań.

RĂDĂCINILE DREPTULUI LIBERTĂȚII DE CONȘTIINȚĂ. POLITICĂ ȘI RELIGIE ÎN CONTROVERSELE TEOLOGICE ALE SECOLULUI AL XV-LEA ÎN CONTEXTUL REFORMEI PROTESTANTE

Author(s): Maria D'Arienzo / Language(s): Romanian Issue: 3/2021

Freedom of conscience, as the core of religious freedom, was a right claimed first and foremost against religious authorities, even before political authorities. The solution to the theological controversies that characterized the 16thcentury and the phenomena of religious intolerance contributed to the political instrument of civil tolerance as the government of the coexistence of several religions within the same territory, as the first step in a process of recognition of religious pluralism.

Determinarea domiciliului copilului: probleme teoretice şi practice

Author(s): Marcel Boşcaneanu / Language(s): English,Romanian Issue: 14/2021

The article is dedicated to the analysis of current legislation on issues related to the protection of children’s rights and interests in resolving disputes regarding the child’s place of residence in the event of parental separation. The question of the possibility of resolving this issue by concluding a parental agreement on determining the child’s place of residence is examined. Particular attention is paid to the issue of taking into account the views of the child, depending on his age. Examples from judicial practice are used, including the European Court of Human Rights. Suggestions are made for improving existing family law and the practice of enforcing it.

RIGHTS AND LIBERTIES OF THE HUMAN BEING WITHIN THE DEMOCRATIC SOCIETY IN-BETWEEN ALLEGEDLY EXCESSIVE IMPORTANCE AND LACK

Author(s): Alina Livia Nicu / Language(s): English Issue: 3/2021

During the recent couple of years the objectiveness of reality has situated each of the human beings from this planet in front of some eventual circumstances which have determined all of us to take into a serious consideration a few rather complicated existential issues. In respect to these issues the various found answers have come to generate a worldwide spread trend of social discomfort turned into grief; or this intense but however still fuzzy inner sensation has further come to often materialize itself through some social movements carried on throughout the streets of various localities which have been also accompanied by some violent manifestations. We have therefore to remark the existence of a rather surprising fact namely the one that the respectively invoked motivations of these manifestations have been less related to economic issues – such as the size ranges of the granted wage rights or the lack of jobs – since the expressed griefs assumed by those participants did instead concern the restrictions which had been de facto operated within the respective spheres of some among their own fundamental rights and liberties. Since we have to take into consideration the fact that the usual dimensions of an ordinary paper destined to a journal could in no way at all allow us to exhaustively discuss the typological multitude of figure cases which could involve the outburst of social griefs we have thus chosen to analyze two situations only. The former studied case is the affliction which could be brought to the citizens‘ own fundamental rights and liberties through the excessively noisy proclaiming of the rights to which are entitled some minorities. The latter studied case to which we have by the way chosen to allow an extreme importance is the one of the limitations which have been brought to the citizen’s own fundamental rights and liberties while justifying these limitations through the invoked ground of the chosen public health policies to be applied as actions to betaken in order to strive against the so-called “COVID-19 pandemics” which has been generated by the “acute severe coronavirus 2 respiratory failure syndrome(SARS-CoV-2)”1. The present work does include a few opinions which do make references towards the modalities of social action which have been chosen as most appropriate to be taken by the entities to which are imparted by the law the respective decision-making competencies insofar the citizens ‘own fundamental rights and liberties could be concerned should these respective entities be situated at the national level, at the E.U.’s level and worldwide. Since these entities have initially been vested with their respective powers in order to take actions from which the individual human person should only benefit the current and effective extent is thus analyzed until which the above mentioned individual human person does indeed continue to be the real beneficiary of the concretely taken actions. The present work does attempt to offer a possible answer brought to the by now acutely arisen question: until where could the state be entitled to intervene by its actions taken in order to restrict some among the citizen’s own fundamental rights and liberties in virtue of the explicitly declared intentional motivation of protecting and standing as the warrant of the same citizen’s own fundamental rights and liberties? The regulatory actions which had been taken and which aimed to discipline the human conduit for the purpose of protecting the same citizen’s own fundamental rights and liberties have been especially taken into consideration. The actions taken in respect to this matter by the entities which do pertain to the sphere of public administration have as well been analyzed because their regulatory taken action is lawfully due to be immediately followed by the practical applying by the citizens themselves of the concerned juridical norms with the support duly brought to this effect by the public administration’s personnel. The issue has also been analyzed of what respective parts should play the civic training as well as self-imposed discipline throughout the respective social processes of protecting and warranting for the citizen’s own fundamental rights and liberties in the respective cases of both small and extended human collectivities; this was done in view of the fact that the deeds of each among the individual human persons are eventually determined by her own perspective upon and understanding of the philosophical concepts of owned fundamental right and liberty own fundamental rights and liberties respectively by her own possible extent of understanding the effective importance which is indeed held by each among the individual persons throughout the general circuit of the currently practiced social relationships. The present work does as well contain a few de lege ferenda suggestions.

Усмотрение как элемент правосознания и диалектика его развития в механизме принятия дискреционного решения субъектами правового регулирования

Author(s): R.G. Valiev / Language(s): Russian Issue: 2/2021

The rational and mental nature of discretion of the subjects of legal regulation was discussed. The relevance of the psychological approach in the study of discretion as a legally significant reflection was substantiated. In the context of the dialectical principles of interrelation, consistency, and causality, the psychological mechanism of making a discretionary decision by the subjects of legal regulation was revealed, and its main stages were singled out. The importance and constituent elements of the law-regulating situation were considered. The functional potential of discretion as a rational and mental resource of legal regulation, which has a great influence on it and its results, was revealed. The essence of the concept of discretion of the subjects of legal regulation was identified. It was concluded that there are stable and necessary connections between legal regulation and discretion as an element of the legal consciousness of its subjects. These connections determine the discretionary nature of legal regulation. As an element of the legal consciousness of the subjects of legal regulation, the essence of discretion is in a normatively conditioned evaluative perception of the legally important conditions and circumstances of the law-regulating situation that determine the validity of the grounds for adoption of a normative, law-enforcing, and law-interpreting legal act in the context of the relevant social needs and interests of the development of society, state, and individuals.

Rule of law: Prevencija i promocija u Bosni i Hercegovini i Evropskoj uniji

Author(s): Amela Čolić / Language(s): Bosnian Issue: 19/2022

The article presents the concept and origin of the ideal rule of law in the theory of law and the characteristics that depend on the quality of positive law. The welfare of the rule of law depends on law and accomplishment in human affairs. Emphasis is also placed on the practical concept of universal values and application at the national and international levels. The central thesis is that the rule of law needs to be strengthened through preventive and promotional measures as a constitutional and common European value. The reason for that is the high degree of distrust of citizens in the rule of law and specifically in the judicial system of Bosnia and Herzegovina. A weak justice system poses a risk to the rule of law and democracy. This is the cause of instability of society, lack of protection of human rights and fundamental freedoms, lack of support in socio-economic development, fight against corruption, investment, and legal security. Consequently, we are far from making progress in achieving European standards and meeting the obligations of the Stabilization and Association Agreement. In stable systems, reforms strengthen citizens' trust in their institutions. There is no such leading force in the reform processes and responsibility toward the citizens of Bosnia and Herzegovina. The challenges for the rule of law in Bosnia Herzegovina that we are failing to deal with are justice in the service of citizens, the right to justice and a safer environment for the rule of law, ensuring integrity, efficient and independent judiciary, and weaknesses in the constitutional framework. At the EU level, respect for the rule of law is a shared responsibility of the Union's institutions and the Member States. The European Commission has prepared a review of the rule of law with measures to further strengthen it, especially in those Member States where weaknesses have been identified.

Dreptul și sursele renovabile de energie. Dimensiuni ale unui regim juridic particular

Author(s): Mircea Dutu / Language(s): Romanian Issue: 1/2022

The necessity of establishing a particular legal regime for renewable energy sources comes from their promotion as main alternative to exiting the present energy model based on fossil fuels, significant emitters of GHGs and highly exhaustible, and the transition towards one based on clean and sustainable energy sources, which allow reaching climate neutrality. Joining the energy, climate, and growths related stakes marks an intersectoral nature to the applicable regimes, with structuring trends and specific developments raising the issue of creating a „renewable energy law” and its main question: new branch of law or special legal regime? As an „crossing” field of ruling (on the one hand, between energy law, environmental law, and climate law, and on the other hand, between international law, EU law, and domestic law, with an integrating vocation), the new law is marked by the environmental transition and the mix of analysis concept and enforcing instruments. By its own implications, it nuances the traditional meanings of some consecrated principles and legal institutions, in the effort of adapting the legal arsenal to the new energy challenges. The lack of adequate specificities, at least for the moment, does not justify it being considered a new branch of law, but it is limited to its affirmation in the field of enforcing a complex legal regime, often derogatory from the common regulations, created in a sense of assimilating perception and promoting the special exigencies of the pillar of renewable sources of the foreshadowed new energy model.

O publicaţie necunoscută din 31 decembrie 1831 privitoare Ia reorganizarea justiţiei şi comerţului în Moldova

Author(s): Ioan Murariu / Language(s): Romanian Issue: XXVIII/1999

L'auteur y analyse le contenu d'un document garde aux archives Nationales de Bacău. Le document en question contient le mode concret d'organisation de certains établissements publics et du marché intérieur de Moldavie conformément au règlement Organique introduit de l'er(13) janvier 1832.

Библиотеката на Съюза на юристите в България представя

Author(s): Author Not Specified / Language(s): Bulgarian Issue: 8/2021