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On a verbal offence against religious feelings – commentary on the European Court of Human Rights’ judgement of 15 September 2022 in Rabczewska v. Poland

Author(s): Lidia K. Jaskuła / Language(s): English Issue: 27/2024

In its judgement of 15 September 2022 in the case of Rabczewska v. Poland (App. No. 8257/13), the European Court of Human Rights (ECtHR) held that the conviction of a Polish singer for her statement made during a press interview – “It’s hard to believe in the writings of someone wasted from drinking wine and smoking some weed,” referring to the authors of the Bible – violated Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The findings and conclusions presented by the ECtHR in this case significantly differ from those given by the domestic courts. Despite the shortcomings identified in this study, the ECtHR’s judgement deserves approval. This underscores that adjudication by the domestic courts under Article 196 of the Criminal Code, which penalises insulting religious feelings, cannot be divorced from the Convention’s standards. Moreover, the ECtHR’s judgement in Rabczewska v. Poland requires that domestic courts engage in thorough reflection on the essence of insulting religious feelings in light of the ECtHR’s rulings. Accordingly, a clear standard for ECtHR adjudication in cases involving freedom of expression and the protection of religious feelings is highly desirable. Therefore, the ECtHR should eliminate all deficiencies in argumentation, gaps and substantive errors from its justifications of judgements.

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Values Beyond Ownership: Rethinking Cultural and Civilian Uses of Heritage within International Humanitarian Law

Author(s): Diogo Machado / Language(s): English Issue: 2/2024

Scholarship on international humanitarian law rethinks the current premise within international cultural heritage law that heritage should be protected in wartime based on its great importance to humankind only. The property value of heritage to civilians reveals extrinsic justifications for protecting heritage. The widespread acceptance of international humanitarian law instruments, coupled with the customary nature of some rules related to cultural heritage, can be conducive to heritage safeguarding during armed conflicts. However, this ownership-centred protection may fall short of adequately safeguarding cultural objects that hold significance beyond their property value, particularly artefacts that constitute a part of humanity’s shared global heritage. Additionally, an approach primarily focused on property values may exacerbate inequities within the cultural heritage domain by favouring affluent collectors and resource-rich nations more capable of asserting ownership claims. In this sense, overemphasizing ownership rights can result in fragmentation, where cultural items are dispersed among private collectors rather than being curated to contribute to the communal narratives surrounding the conflict in which they were pillaged or misappropriated. In broadening the international legal framework that serves the protection of cultural heritage in armed conflicts, the integration of international humanitarian law and heritage law should result in legal responses for the management of cultural heritage in wartime that account for both the civilian-use and cultural value of heritage.

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Return of Benin Objects to Nigeria: Perceptions and the Law

Author(s): Afolasade A. Adewumi / Language(s): English Issue: 2/2024

This research responds to the debates over who should own Benin objects returned to Nigeria and the news about the Oba of Benin commenting, prior to 2023, that the Benin objects to be returned to Nigeria should be returned to him and not the federal government. This article uncovers the perceptions of the members of the Igun community, many of whom are the descendants of the Igun guild that produced the Benin objects that were carted away from Benin Kingdom during the 1897 Expedition. Using a survey questionnaire and in-depth interviews, the article examines the perceptions of the Igun community about the Benin objects and the effect of the expedition on Benin art and heritage. The findings reveal that many believe the Benin objects should be returned to the Oba, who is the custodian of Benin culture and heritage. The respondents are also in agreement that the expedition, although brutal, nonetheless brought Benin art and heritage into the limelight. The article also carries out a critique of the Executive Order Notice No. 25, Order No. 1 of 2023, and concludes by stating that though the executive order is invalid, its invalidity is inconsequential with respect to the dictates of customary law, human rights law, and international law.

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The ICJ, Racial Discrimination, and the Protection of Cultural Heritage

Author(s): Szymon Zaręba / Language(s): English Issue: 2/2024

This article examines the protection of cultural heritage in the jurisprudence of the International Court of Justice (ICJ, or Court) under the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD). It analyses all the cases before the ICJ in which the issue has arisen to date, with a particular focus on the key order on provisional measures in Armenia v. Azerbaijan, issued in 2021. The main argument is that this decision, although to some extent controversial, has set a precedent for other cultural heritage protection cases before the Court. However, in light of further ICJ jurisprudence, states will still have to meet a heavy burden of proof in order to make real use of this precedent, in particular to redress actual collective harm to affected communities.

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Legal Regime of Acquisition of Land Ownership by Newly Formed Families in the Republic of Moldova

Author(s): Grigore ARDELEAN / Language(s): English Issue: 3-4/2023

During the transition period of the Republic of Moldova from the planned economy to the one based on free trade, fair competition, etc., including from the public property of the Soviet state to the private property of individuals, the need to establish a clear regime for acquiring and exercising the right to land ownership had become a strict one. In parallel, with the adoption of the Land Code, in addition to the appropriation of agricultural land, it was also decided to assign land to newly formed families in order to help them develop a family, ensure decent living conditions, demographic growth and prevent emigration. Since then, when the legislative framework in the field was developed in a hurry, with many shortcomings and ambiguities, and up to the date of writing this article, the legislator has not taken any measures to rectify the legal situation regarding the acquisition of land ownership by families newly formed. Thus, against the background of the respective problem, we are determined to investigate the problem as a whole, trying to offer solutions, but also suggestions to the legislator to change the attitude of the public authorities responsible for assigning these lands.

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Public versus Political Decision in Administrative Space

Author(s): Mădălina-Elena Mihăilescu / Language(s): English Issue: 3-4/2023

This article aims to make a brief review of some important issues related to the "opening" of the administration to citizens in Romania and to describe, briefly, some recent decisions taken by various local councils in large cities of Romania (such as Cluj-Napoca, Iasi, Craiova or Galati) and which testify to the willingness of local and central authorities to really address those on whom their decisions will really produce their effects. To our pleasant surprise, we found that in most cases the decisions taken in recent years at the local level in our country have dealt with issues that demonstrate the connection of local councils and mayors to issues of greatest interest to the community: urban planning issues, environmental quality, air quality, support for disadvantaged and sensitive groups in society or issues related to the chances of involving young people in the community. In the last 20 years the public sector offered citizens the opportunity to be actively involved in the life of the city and in the decision-making process, which demonstrates the approach of the Romanian authorities to the European trend of transparency in the decision-making environment, but also the application of the principle of subsidiarity as a fundamental principle of the Romanian administration.

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Podstawy i tryb wprowadzania do obrotu środków odurzających, substancji psychotropowych i nowych substancji psychoaktywnych

Author(s): Piotr Dunaj / Language(s): Polish Issue: 10/2024

This article examines the legal basis and procedure for introducing narcotic drugs, psychotropic substances, and new psychoactive substances into the market. To this end, the provisions of the Act of 29 July 2005 on Counteracting Drug Addiction, as amended in 2018 to address the issue of unlimited access to so-called “legal highs”, are discussed. The introduction of narcotic drugs and psychotropic substances to the market requires obtaining a permit from the Chief Pharmaceutical Inspector, while new psychoactive substances require approval from the President of the Bureau for Chemical Substances. In this way, the legislator has limited the freedom of economic activity to protect human life and health. The establishment of a catalog of substances subject to legal regulation through a regulation, a sub-statutory legal act, is also significant. This allows for the rapid restriction of access to substances considered dangerous.

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Ku cyfryzacji usług publicznych – transformacja cyfrowa Unii Europejskiej

Author(s): Renata Śliwa,Elżbieta Szczygieł,Joanna Stąporek / Language(s): Polish Issue: 10/2024

The article discusses how digital challenges are shaping the development of public services and creating new channels for distributing resources. The digital advancement of public services, along with the growing openness of administration through the internet, offers opportunities for improving civic awareness, transparency, and accountability of public actions.The goal of the article is to examine how the European Union is addressing these challenges related to information and communication technologies (ICT) and assess its progress. The analysis focuses on EU strategic documents, legal acts, and statistics.The European Union has made significant progress, particularly in areas like mobile broadband infrastructure and the number of e-government users between 2018 and 2023. Notably, Malta, Ireland, Finland, and Sweden have achieved high levels of advancement in areas such as digital services for citizens and entrepreneurs, as well as mobile-friendliness.

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Právní institut apelace v pražském procesním traktátu Parvus ordinarius

Author(s): Jakub Razim / Language(s): Czech Issue: 3/2024

This paper aims to present the procedural treatise Parvus ordinarius as a valuable object for research into the history of the ecclesiastical judiciary in medieval Bohemia. One manuscript of the Parvus ordinarius, currently stored under the signature VIII.G.5 in the Prague National Library in Klementinum, serves as the source base for the study. There is good reason to believe that this very codex played a role in the judicial practice in the Czech lands in the (pre-)Hussite period. Firstly, we know from the ownership note that it once belonged to Pavel of Slavíkovice, a liberal arts bachelor at the University of Prague, who worked as a notary and became a criminal judge of the clergy in Prague before 1436. Secondly, the Prague version of Parvus ordinarius met the needs of the domestic legal environment thanks to the gloss added to the treatise in the first half of the 14th century. These remarks written down by an unknown jurist have not been edited so far and thus have escaped the attention of scholars. Of all the content of the Parvus ordinarius, the focus is on the appeal, seen as a merge of traditions of both Roman and ecclesiastical law. As argued in the text, the chosen topic is a great starting point not only for multidisciplinary collaboration between lawyers and historians of different specializations but also for the search for links between the functioning of the judiciary in the past and the present.

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MODELI PREVENCIJE KRIMINALA U PROJEKTIMA OBNOVLJIVIH IZVORA ENERGIJE

Author(s): Inda Kreso / Language(s): Bosnian Issue: 1/2024

Organised crime groups, corrupt government officials, political elites, state-owned companies, and private sector companies see renewable energy power plant construction projects as business opportunities for making illegal profits and money laundering. State subsidies that support the construction of renewable energy power plants are very attractive to organised criminal groups who see an opportunity to obtain money from state budgets through corrupt actions. Through a series of irregularities in the process of building renewable energy power plants, which include non-transparent tender conditions, illegal obtaining of land concessions for the construction of power plants, falsification of environmental studies and feasibility studies, construction of power plants on unsuitable terrain, and bribing the government officials to speed up the obtaining of construction permits, criminal groups gain a monopoly over the sector of renewable energy sources, in which very large amounts of money from state budgets have been invested on a global level in the last ten years. The aim of this work is to identify models for preventive risk recognition as a tool for crime prevention in the sector of renewable energy sources through a systematic review of the available literature. Models for the preventive identification of the risk of criminal activities represent a formalised set of steps or protocols that can be used at any stage of renewable energy projects, especially in projects of the construction of renewable energy power plants, in order to mitigate and minimise the risk of committing criminal acts. Preventive risk recognition models ensure that a power plant construction project runs smoothly from start to finish without unnecessary financial losses thanks to their ability to point out all the weak points of the complete process. By early detection of vulnerabilities during the construction of renewable energy power plants, we can completely prevent the commission of crime. The literature describes 5 basic models for timely recognition of the risk of committing criminal acts, and they are: corruption risk mapping, availability of data in public registers, initiatives for improving transparency, improvement of enforcement of anti-corruption laws and penalties for corruption, and joint ownership models. In addition to these basic 5 models, a systematic review of the literature revealed that there is insufficient focus on the financial aspect of renewable energy construction projects. Due to the perceived importance of the financial component in preventing criminal activities, this paper also proposes a sixth model and expands the basic model with an additional model called "Financial assessment of renewable energy projects." The likelihood that criminal offences will occur at every stage of a renewable energy power plant project is a fundamental obstacle facing the renewable energy sector. Due to the presence of crime, a smooth transition to green energy is prevented completely, which again entails the impossibility of suppressing the use of fossil fuels. One of the main tasks of the described models, in addition to the timely detection of potential criminal activities, is to accelerate the transition to green energy and support sustainable development. By raising the awareness of the population and enabling greater transparency in the entire sector, as well as greater transparency of the construction process of renewable energy power plants, it restores trust in state institutions and power holders and improves the entire political image of the country. By increasing the transparency of processes where information is easily accessible to the public, we prevent mafia organisations and organised crime groups from financing similar projects in the hope that they will be able to launder money through investments in renewable sources.

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Doktrína řádného procesu jako prostředek inkorporace Bill of Rights

Author(s): Jaroslav Ženíšek / Language(s): Czech Issue: 3/2024

The incorporation of the Bill of Rights against the states through the Fourteenth Amendment belongs among the most complex topics of American constitutional law. The first question to ask is obviously “Was the Bill of Rights incorporated against the states with the ratification of the Fourteenth Amendment?” Even if we answer this essential and difficult question in the affirmative, we face another one, no less important, which is: Through which of the clauses of section one of the Fourteenth Amendment was incorporation implemented? Among the proponents of the incorporation theory we find two groups: one that advocates incorporation through the privileges or immunities clause and another one that supports incorporation through the due process clause or the so called doctrine of substantive due process. Substantive due process is one of the phenomenons of American constitutional law that influenced legal evolution in the United States in a fundamental way, mainly during the 20th century when the concept of substantive due process experienced a steep rise that manifested itself not only in the area of protection of rights and freedoms not explicitly mentioned in the Constitution, but also those clearly mentioned in the amendments that constitute the Bill of Rights. It was the very substantive due process doctrine which was used by the federal Supreme Court as basis for gradual incorporation of the individual guarantees contained in the Bill of Rights to state and local level. It is, however, necessary to ask whether the Supreme Court, while trying to reach this goal, did not embrace a doctrine which lacks basis in the text of the Constitution and the traditions of the common law, thus being only an artificial creation of the Supreme Court itself as to this day, many suggest. This paper deals with the origins, historical meaning and evolution of the concept of due process and tries to show whether the substantive due process doctrine has a real legal foundation and can therefore serve as means for incorporation of the Bill of Rights.

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Prezumția de nevinovăție în jurisdicțiile naționale și europene

Author(s): Verginia Vedinas / Language(s): Romanian Issue: 03/2024

Book review - This year, at Universul Juridic Publishing House, the work with the above title by Mr. Constantin-Marius Arădan was published. It is based on the doctoral thesis with this name that he developed under the masterful scientific coordination of Professor Ioan Vida. Professor Ioan Vida is a very special personality through his contribution and significance for the legal world of our days. Both for legal doctrine and practice, we could say, at the highest level, if we mention among the legal occupations of the professor that of constitutional judge and president of the Constitutional Court of Romania.

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Durata mandatului aleșilor locali și principiul periodicității alegerilor

Author(s): Dan Constantin Mâță / Language(s): Romanian Issue: Supliment/2024

The principle of the periodicity of elections implies that they must be held continuously, at regular time intervals, without mergers affecting the duration of the mandates in progress or the exercise of the right to vote. It is considered part of the European electoral heritage, alongside universal, equal, freely expressed, secret, and direct suffrage. Despite its capital importance for democracy, this principle is most often altered by collusion of elections or erroneous interpretations of the notion of the duration of the mandate. The absence of an Electoral Code, which would ensure a single regulatory framework for all types of elections, encourages the legislator, primary or secondary, to adopt derogatory rules that are often incompatible with the constitutional requirements or with the stability that must characterize the regulations in the electoral field. The jurisprudence of the Constitutional Court on the question of the free and periodic nature of elections is constant, and the doctrine includes solid analyses regarding the free, periodic, and fair nature of elections and the legal security that must characterize electoral law. The electoral regulations specific to the year 2024 contain several derogatory norms that reopened the issue of periodicity of elections for local public administration authorities, both at the level of jurisprudence and at the level of doctrinal debates.

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Unele aspecte cu privire la ineficiența procedurilor privind contenciosul electoral în materia alegerilor locale

Author(s): Mircea Ursuța / Language(s): Romanian Issue: Supliment/2024

This material is based on the author's claims from the National Conference of Administrative Law and Public Administration, 5th Edition: „The virtues of the principle of eligibility in the composition of public authorities. From electoral litigation to administrative litigation”. If the lecture delivered at the conference held at the Faculty of Law of the University of Bucharest was entitled „Some considerations regarding the inefficiency of administrative litigation in electoral matters and not only...”, the material that sees the light of day was rethought and limited only to the aspects that are of interest from the perspective of the electoral litigation related to the local elections. Specifically, starting from a situation that can be included, at least theoretically, in the notion of „electoral fraud”, the mechanism by which such fraud can be ascertained in the electoral litigation through the prism of its extremely strict and ineffective procedures will be analyzed.

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O radiografie a alegerilor locale din 9 iunie 2024. Între mize electorale, discursuri politice și lacune legislative

Author(s): Claudia Gilia / Language(s): Romanian Issue: Supliment/2024

Elections are the moments when the people express their will regarding the future decision-makers. The framework in which they must take place must be based on principles such as equal opportunities, transparency, fairness, and periodicity. From the way in which all these principles are valued, we can talk about the correct manifestation of electoral options and the consistency of the exercise of citizens' political rights. Elections are at the heart of democracy and the rule of law. Their result influences the way a community or a country shapes its democratic and developmental course. For Romania, the year 2024 is the year in which citizens are called to the ballot box to elect all their representatives, from the mayor to councilors, parliamentarians, or MEPs. The first democratic exam was on 9 June 2024. The government's option was to combine the local elections with the European ones. Was it a viable solution? Did this decision satisfy the electorate's choices? Has the legislative framework managed to provide voters with all the conditions for the full exercise of political rights? These are just some of the questions we will answer in our study.

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Comasarea alegerilor – reflectare juridică, consecințe, învățăminte

Author(s): Mihai Cristian Apostolache / Language(s): Romanian Issue: Supliment/2024

The decision to merge the local elections with the European ones imposed the modification of the normal electoral calendar and the normative framework in the matter. The article captures the main legislative changes, highlighting the consequences of this decision and its possible lessons.

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Jurisprudența relevantă în materie electorală generată de Alegerile din 9 iunie 2024

Author(s): Ciprian Ene / Language(s): Romanian Issue: Supliment/2024

The proposed study considers the disputes generated by certain electoral incidents. This study focuses on three litigations in which three different situations were judged by the contentious courts. The first case examines the dispute between the Central Electoral Bureau and the political alliance USR-PMP, the second involves the refusal to use a name for a political alliance between two parties for electoral purposes. The last litigation presented concerns the interpretation of a text of law by the Central Electoral Bureau with reference to the magistrates who have the right to hold the position of presidents or deputy presidents at electoral district electoral offices.

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Soarta bunurilor domeniale private în lumina alegerilor locale

Author(s): Andreea Boar / Language(s): Romanian Issue: Supliment/2024

The material aims to highlight the way in which local elected officials decide the fate of private domain assets through the lens of the powers conferred on them by law. The study is structured in two parts, each part being in turn divided into two sections: the legislation part and the jurisprudence part. In the first section of the first part of the material, we will present the powers assigned to local elected officials by Law no. 213/1998 in areas such as interdomain transfer (§5) and the inventory of public domain assets of administrative-territorial units (§6), following that in the second section we highlight the many practical problems reflected by jurisprudence regarding private domain assets (§13-§26). In the first part of our study, we will also address sensitive topics such as the application of the theory of „forms without substance” regarding the Government's decisions certifying the inventory of public domain assets of territorial communities (§7), the deadline for carrying out the inventory of public domain goods (§11), as well as the long-standing lack of regulation for private domain goods (§12). In the second part of the study, we will analyze a series of provisions from the Administrative Code on the basis of which local elected officials decide the fate of domain assets. Specifically, we will analyze the transfer of an asset from the private domain into the public domain of the same owner of the property right (§28), the five ways of transferring assets into the private domain (§30), the inventory of assets from the public domain of the administrative-territorial units (§32), attributions regarding the inventory of private domain assets of administrative-territorial units (§38), as well as attributions regarding the sale of private domain assets of administrative-territorial units (§40-§42). The sensitive issues that we will analyze will concern the ratio between the Government decisions certifying the inventory of goods from the public domain of the territorial communities, adopted on the basis of Article 21 of Law no. 213/1998 and the decisions of the deliberative authorities of each administrative-territorial unit for attesting the inventory of their public domain goods, adopted pursuant to Article 289, paragraphs (2) and (5) of the Administrative Code (§36) and the re-attestation of the inventory (§37). We will also present a proposal de lege ferenda suggesting a distinct regulation of the public auction for the sale of goods in the private domain (§43). In the final part of the material, we will present a series of jurisprudential solutions in the light of the Administrative Code (§44-§46).

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Behind the Scenes of a Protocoled Polygraph Test

Author(s): Tuvya T. Amsel / Language(s): English Issue: 2 (60)/2024

Contrary to the past in where polygraph examiners practiced an “intuitive-based practice” grounded on several industry leaders experience, consequently having various schools of thoughts, modern polygraph examiners follow a test protocol based and rooted in research. As effective as the “evidence- based- practice” is, it does not cover all ranges of cases, examinees, situations, and contaminations which may carry a misleading affect. The purpose of this paper is to draw examiners attention to the existing potential hazards surrounding a protocoled standard of practice and suggest solutions in order to alter the test to the examinee (“tailor made” style test) rather than alter the examinee to the test (“one size fits all” style test).

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CONTEMPORARY PUBLIC EDUCATION POLICIES IN ROMANIA AND EUROPEAN UNION

Author(s): Mădălina-Elena Mihăilescu / Language(s): English Issue: 19/2023

This article aims to highlight what efforts have been made in the last two to three years both in Romania and in other European countries to reduce school dropout, in particular, - a phenomenon increasingly present in many European societies, what were the amounts invested in this regard and to what extent such investments have had practical effect.

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