UPUĆIVANJE SUDACA I DRŽAVNIH ODVJETNIKA NA PRIVREMENI RAD U DRUGA TIJELA DRŽAVNE VLASTI U REPUBLICI HRVATSKOJ (KOHABITACIJA ILI KOLIZIJA SUDBENE I IZVRŠNE VLASTI)

Author(s): Sanja Grbić,Jakob Nakić,Dejan Bodul / Language(s): Croatian Issue: 32/2023

The permanence of judicial and state attorney functions according to international standards represents the basic guarantee of judicial and state attorney independence. An analysis of the principles contained in the positive regulations, primarily in the Constitution of the Republic of Croatia, established that judges and state attorneys as holders of judicial functions are provided with a high degree of protection in terms of guaranteeing the permanence of their functions. However, as we cannot analyse any standard in isolation, neither can the permanence of the judge or state attorney function be viewed as an absolute category. The provisions of the Law on Courts prescribe the possibility of temporarily assigning judges, at their request, to work in other state authorities, and the same is prescribed for state attorneys in the Law on State Attorneys, but only as an exception to the generally accepted rule of permanence of the function to which they are appointed. The authors examine the reasons for the appointment of judges and state attorneys to temporary positions in the Ministry of Justice, bearing in mind the multifaceted nature of this problem and the fact that the answer to this question is not unambiguously determined. Moreover, considering the diversity of legal systems of nation states, as well as the diversity of political and legal values, building an acceptable concept of the rule of law, even in the context of the issue in question, remains a challenge.

KRIVIČNO DJELO KRAĐE U PRAKSI OPĆINSKIH SUDOVA NA PODRUČJU TUZLANSKOG KANTONA

Author(s): Maja Iveljić,Amar Lukavačkić / Language(s): Bosnian Issue: 32/2023

Property crime consists of all criminal offences directed against property, where the perpetrator tries to obtain illegally property gain for himself or others or to cause damage to someone. The right to property is one of the basic human rights that enjoys constitutional, legal and international protection. In the paper, the authors deal with the basic concepts related to property crime, and the legal regulation of the criminal offence of theft in the legislation of the Federation of Bosnia and Herzegovina, Republic of Srpska and Brčko District of Bosnia and Herzegovina. Empirical research was also conducted, where the sample consisted of 628 adults who were accused of committing the crime of theft in the area of Tuzla Canton for the period from 2018 to 2021. These are data provided by the Federal Bureau of Statistics of the Federation of Bosnia and Herzegovina. The variables used in the research are: the share of the number of accused persons for the criminal offence of theft in the total number of accused persons for criminal offences against property in the area of Tuzla Canton, type of decision, gender, marital status, work status, previous convictions, age, length of imposed prison sentences, the imposed fine and the imposed court warning.

SPECIFIČNOSTI USTAVNOG SUDSTVA U BOSNI I HERCEGOVINI

Author(s): Amar Gazić,Ilhan Osmanović,Nordin Abazović / Language(s): Bosnian Issue: 32/2023

The position of the constitutional court is of utmost importance for the rule of law in any country. However, the importance of the position of the Constitutional Court of Bosnia and Herzegovina stems from the fact that an international armed conflict occurred on the territory of Bosnia and Herzegovina, which led to peace negotiations resulting in a new Constitution of Bosnia and Herzegovina. The new constitutional solutions are very specific and, given that they were not adopted in regular procedure but as a result of compromise aimed at ending the conflict, they are often perceived as flawed. The specificity of these solutions is also reflected in the complexity of the legal system, which greatly affects the development and prosperity of the state. This complexity is particularly emphasized and evident when we talk about attempts to weaken the Constitutional Court of Bosnia and Herzegovina, degrade that institution, damage its reputation, and attempt to minimize its decision-making powers or transfer them to entity constitutional courts (the Constitutional Court of the Federation of Bosnia and Herzegovina and the Constitutional Court of Republika Srpska), which could lead to the collapse or erosion of the system of legal norms. In this context, one may ask, what if we did not have the Constitutional Court of Bosnia and Herzegovina? Who would be a shield of the Dayton Peace Agreement and the Constitution of Bosnia and Herzegovina? Of course, without degrading the institutions of the entity constitutional courts, it is important to emphasize the primary importance of the existence of a state constitutional court. Through this paper, we will primarily try to explain the significance of the existence of constitutional courts, some of their peculiarities, say something about their general competences, the selection and appointment of judges, but also explain in detail the significance and importance of the functioning of entity constitutional courts, as well as the relationship between the Constitutional Court of Bosnia and Herzegovina and the entity constitutional courts, the collision of competences between the Constitutional Court of Bosnia and Herzegovina and the entity constitutional courts, and carry out a comparative legal analysis with the constitutional judiciary of Germany, a country that has a similar constitutional and legal system within the European continental legal framework, all relying on relevant literature and case law. We will also touch on different types of independence of the Constitutional Court of Bosnia and Herzegovina and try to present the complexity of the constitutional legal system of Bosnia and Herzegovina through practical cases.

IZMIJENJENI ORIJENTACIJSKI KRITERIJI ZA NAKNADU NEMATERIJALNE ŠTETE VRHOVNOG SUDA REPUBLIKE HRVATSKE (NEKA OTVORENA PITANJA U PRIMJENI I SUDSKOJ PRAKSI)

Author(s): Tamara Stanić Sertić / Language(s): Croatian Issue: 33/2023

It is a fact that the Orientation Criteria of the Supreme Court of the Republic of Croatia from 2002 survived the significant legal change in the concept of nonmaterial harm suffered and fair financial compensation (Civil Obligations Act 05), and that they remained unchanged in implementation for many years. This in itself is a confirmation of their value, so it can be concluded that, regardless of individual shortcomings, they achieved the purpose and goal for which they were adopted, they significantly contributed to the uniformity of judicial practice in the application of legal provisions on fair financial compensation, and thus to the equality of all in their application law, legal certainty and the rule of law. The problems that arose in the period of their relatively short implementation related to their retroactive effects and in this connection their pressure on the derogation and/or interpretation of existing procedural and materially already established legal rules, led to conflicting legal understandings and divided judicial practice. Due to their content and method of adoption, the amended Orientation Criteria caused the opposite effects from those for which they were adopted. Thus, the issues of their content and vagueness were again brought up to date. Socio-economic and financial developments after their adoption, galloping inflation, slowing down of the wage growth index, decreasing real purchasing power of money additionally actualize the issue of adopting new Orientation Criteria. They should reflect the legal changes from Civil Obligations Act/05, the new understanding and conception of non-material harm suffered and fair financial compensation. Ultimately, they should also determine the mechanisms for changing the amount of fair financial compensation on a periodic basis automatically, in order to enable the injured parties and those responsible for compensation to know at all times, even for orientation, how much financial compensation they are entitled to and which are their obligations. And the most important thing, there would have to be no interpretation that enables retroactive implementation of compensation legal relationships that arose in the past, before the adoption of new standards.

FORMA UGOVORA O PROMETU NEKRETNINA U PRAVU BOSNE I HERCEGOVINE: AD SOLEMNITATEM ILI AD PROBATIONEM?

Author(s): Emir Sudžuka / Language(s): Bosnian Issue: 33/2023

The classic division of legal transactions into formal and informal in modern contract law gained a new dimension by introducing into the positive legislation of national legal systems new forms of legal transactions, which are often condition for validity validity of such affairs. By introducing the Latin type of notary in the legal system of Bosnia and Herzegovina, the legislator separated certain legal affairs in the area of property law, family and inheritance law, and company law and made their legal validity conditional on the form of a notarial deed. Such solutions of the entity laws as well as the laws in the Brčko District that regulate the service of notaries since the beginning of their application have caused public polemics as well as professional discussions among members of different legal professions. As a result of the aforementioned discussions, certain provisions of these laws, including those regulating the form of separate legal transactions (including contracts with real estate transactions as their subject), were subject to constitutionality evaluation before the entity constitutional courts. The Constitutional Court of the Federation of Bosnia and Herzegovina and the Constitutional Court of the Republika Srpska, deciding on requests for constitutional review of the provisions of the law on notaries, which prescribe the obligation of the form of a notarized document for legal transactions whose subject is the transfer or acquisition of ownership or other real rights to real estate, took different positions. The Constitutional Court of the Republic of Srpska rejected the proposal to determine the unconstitutionality of, among other things, Article 68 of the then valid Law on Notaries of the Republic of Srpska, which regulates the issue of mandatory form, while the Constitutional Court of the Federation of Bosnia and Herzegovina decided that, among others, Article 73 of the still valid Law on to FBiH notaries is not in accordance with the Constitution. With such decisions of the courts, the issue of the form of the real estate transaction contract received different interpretations and degrees of obligation in two entities of the same legal system, thus contributing to the legal uncertainty of citizens and investors. The subject of this paper is the analysis of the valid regulations governing the form of real estate contracts in the legal system of Bosnia and Herzegovina, as well as the role of the notary as a public service in increasing the degree of legal security and protection of parties in contracts with real estate as their subject.

DOBRA OD OPĆEG INTERESA

Author(s): Larisa Velić,Ismet Velić / Language(s): Bosnian Issue: 33/2023

Goods of common interest exist in the form of construction land, agricultural land, forests and forest land, and other assets. Due to their significance, they hold a special place in the economic and legal system, and, accordingly, they traditionally enjoy specific legal protection. The legal regime for these goods is regulated by the Law on Rights in rem, as well as particular rules regarding construction land, agricultural land, forests and forest land, and other specific regulations. Regarding the legal existence of goods of common interest in the previous as well as the current legal system, significant transformations of rights in rem on these assets have occurred in terms of establishing state, social, or traditional ownership rights. In connection with this, certain actions, especially by entities, aimed at appropriating these goods have been noted, leading to specific disputes that resulted in special procedures and decisions, with established positions of the Constitutional Court of Bosnia and Herzegovina regarding the constitutionality of laws and the status and belonging of the subject goods. Despite numerous provisions of relevant entity regulations in this area being repealed, the process of their harmonization and the adoption of appropriate regulations by the competent authorities of Bosnia and Herzegovina to establish an adequate normative-legal framework for the complete and adequate regulation of this area is still pending.

SUĐENJE NA DALJINU KAO PRETPOSTAVKA VOĐENJA PARNIČNOG POSTUPKA

Author(s): Alaudin Brkić,Smajo Šabić / Language(s): Bosnian Issue: 33/2023

Traditional way of guidance civil procedure is made of “Law of civil procedure” where it is written that attendance of everyone included in the case is mandatory. Development of modern information technologies and having emergency situation as it was with COVID-19, made us thinking how to provide litigants access to the court, while at the same time having the traditional way of conducting litigation, which is based on the principle of immediacy, the principle of publicity, and the principle of adversariality. All of these principle should be incorporated with digital information solutions that would contribute more economically and functionally guidance civil procedure with all rights of civil retained. Through this scientific research, writer will by researching the possible way of conducting court litigation using informational videoconference technologies with a special focus on comparative legal solutions, with the aim of researching the possible organization of trials without the need for the physical presence of litigants and other participants during the process, through finding possible appropriate legal solutions that would create prerequisites for holding remote hearings as a more functional way of conducting civil proceedings.

UNIFICIRANI EVROPSKI GRAĐANSKI SUDSKI POSTUPCI

Author(s): Alena Huseinbegović,Viktorija Haubrich / Language(s): Bosnian Issue: 33/2023

The paper deals with three Evropean Union Regulations that regulate unified civil court procedures: Regulation (EC) no. 805/2004 of the Evropean Parliament and the Council from April 21, 2004 that introduces the Evropean enforcement title for undisputed claims, Regulation (EC) no. 1896/2006 on the introduction of the Evropean payment order procedure, Regulation no. 861/2007 of the Evropean Parliament and the Council from July 11, 2007 on the introduction of the Evropean procedure for small claims (Regulation (EU) 2015/2421 on amending the Regulation (EC) No. 861/2007 on the introduction of the procedure for small claims and Regulation (EC) No. 1896/2006 on the introduction of the Evropean payment order procedure). The joint main goal of the regulations was to create simplified and fast procedures in which costs are reduced and on the basis of which certain claims in civil and commercial cases can be quickly resolved in cross-border situations conducted by filling in standardized forms available in each member state. Decisions from these procedures are recognized and enforced in other member states without the need to carry out a previous intermediate procedure before recognition and enforcement. Bosnia and Herzegovina, as a country with candidate status for membership of the Evropean Union, is obliged to harmonize its legislation with the acquis communautaire, and it is necessary to incorporate special chapters of the “Evropean procedures” into civil and enforcement laws with the incorporation of unified civil court procedures.

The Evolution of Same-Sex Marriage Case Law in Europe

Author(s): Elżbieta Kużelewska,Marta Michalczuk-Wlizło,Bruna Žuber,Matevž Bedič,Mariana Mesquita Vilas Boas,Luísa Ramos Naia / Language(s): English Issue: 3/2024

The number of countries allowing same-sex marriage is gradually increasing. Currently, 37 countries have laws regulating same-sex marriages, specifying their status and/or the possibility of adopting children. These solutions counter discrimination against same-sex couples and are part of the protection of human rights. Against the background of other countries, the pan-European tendency to accept the institution of same-sex marriage is garnering positive attention, although it is still controversial in some countries. Regulations of European law and the case law of the Court of Justice of the European Union, the European Court of Human Rights and the constitutional courts, which play an essential role in anti-discrimination measures and are in favour of respecting human rights, provide crucial support. This article discusses the evolution of the jurisprudence of the ECtHR, the CJEU and the national courts of selected countries (Slovenia, Spain, Portugal, Germany and Austria) concerning same-sex marriage. It highlights how recognising the right to same-sex marriage does not come at the expense of the rights of others or the public interest.

Тълкувателно решение на Върховния административен съд № 5 от 25.06.2024 г.

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 4/2024

Решение № 6084 от 17.05.2024 г. по адм. дело № 452/2024 г. на Върховния административен съд

Author(s): Author Non Specified / Language(s): Bulgarian Issue: 4/2024

Sinteza hotărârilor în materie fiscală pronunțate de Curtea de Justiție a Uniunii Europene în perioada iulie-august 2024

Author(s): Not Specified Author / Language(s): Romanian Issue: 4/2024

Summary of judgements on tax matters delivered by the Court of Justice of the European Union between July-August 2024

SHORT CONSIDERATIONS ON THE RIGHT TO COMPENSATION IN CASE OF MISCARRIAGE OF JUSTICE OR UNLAWFUL IMPRISONMENT – A STEP BEFORE THE ECHR PROCEEDINGS

Author(s): Mirela Gorunescu,Laura-Cristiana Spătaru-Negură / Language(s): English Issue: 2/2023

Pursuant to the provisions of Article 538 et seq. of the Romanian Code of Criminal Procedure, individuals who consider themselves to be victims of manifest miscarriages of justice or in cases of unlawful deprivation of liberty may bring an action against the Romanian State through the Ministry of Public Finance for damages for the unlawful deprivation of liberty they have suffered. This study will attempt to analyse the conditions of admissibility of such claims, arising from unlawful deprivation of liberty, and to present elements of material and non-material damage that could be covered by the court. But even if such actions were to be admitted and the court were to grant the claims referred to by the persons entitled, could the non-material damage be fully compensated, given that several fundamental human rights have clearly been infringed? The issue is also approached from the perspective of the rich case-law of the European Court of Human Rights on this matter, which we consider relevant to the present topic.

ASPECTS REGARDING THE USE OF COLLABORATORS IN THE CRIMINAL TRIAL

Author(s): Mircea-Constantin Sinescu,Alin-Sorin Nicolescu / Language(s): English Issue: 2/2023

This work covers the review of the main issues arising in judicial practice with regard to the use of special surveillance or investigation methods, especially the use of undercover investigators and of collaborators, starting from ordering such measures all the way through the limits the intervention of such investigator/collaborator should respect.

Binding of Polish Courts by Interpretative Judgments in National and European Context

Author(s): Agnieszka Malarewicz-Jakubów,Anna Doliwa-Klepacka / Language(s): English Issue: 3/2024

The study is of a scientific and research nature, devoted to the most characteristic type of op-erative interpretation related to judicial interpretation. The subject of the research, carried out usingthe method of dogmatic analysis of law, is the verification of two problems: the binding of the courtof first instance to the legal assessments made by the appellate court and the extent to which Polishcourts are bound by the judgments of the Court of Justice of the European Union on the interpreta-tion and application of EU regulations. The authors draw attention to the necessity of analyzing theinterpretation of regulations, made in the justifications of court decisions. This is very interesting inthe context of judicial independence and the great freedom of judges to interpret laws and phenom-ena. However, it also raises a number of doubts about the extent of the relationship with such freelyinterpreted content. The scope of the research and the results obtained are international in nature andcan be of significant cognitive value to the science and practice of law application.

Samowola budowlana jako zdarzenie ciągłe. Bezprzedmiotowość jako przesłanka stwierdzenia wygaśnięcia decyzji. Glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 2 grudnia 2021 r. (II OSK 96/19, LEX nr 3275880)

Author(s): Bartosz Kuś / Language(s): Polish Issue: 3/2024

The County Building Supervision Inspector commanded the demolition of arbitrarily builtexits from the national road to the plot. The Private Limited Company, the legal successor of theaddressees of the demolition decision, asked for a declaration of the expiry of the demolition decisiondue to the reconstruction of the exit carried out during the renovation of the national road by theroad administrator. The Provincial Inspector of Construction Supervision, as first instance authority,refused to confirm the expiry of the decision about the demolition, recognizing, i.a., that the worksperformed at the exit in question did not change its parameters, therefore it cannot be considered asreconstruction of the facility. As a result of the appeal lodged, the Chief Inspector of ConstructionSupervision maintain in force the decision. The Private Limited Company claimed to the VoivodeshipAdministrative Court, the contested decision should be revoked in its entirety or revoked and thecase should be referred for re-adjudication due to the lapse of more than 10 years from August 2007.The Private Limited Company explained the demolition decision is pointless as more than 10 yearshave passed since it was issued in August 2007. The Voivodeship Administrative Court in Warsaw dismissed the complaint, considering the allegation of the expiry of the decision to be unfounded. Inthe cassation claim the Private Limited Company formulated allegations of violation of proceduraland substantive law. The Supreme Administrative Court did not admit the cassation appeal. In theopinion of the court of second instance, the main subject of the dispute in the case under examinationwas whether, in the light of Article 162 § 1 (1) of the Administrative Procedure Code, it is possibleto declare the expiry of an administrative decision ordering the demolition of a building structure tobe expired. Also important is the issue of legal succession and the transfer of responsibility for theresulting building lawlessness.

Considerații privind regimul special de TVA pentru agențiile de turism

Author(s): Natalia Șvidchi / Language(s): Romanian Issue: 4/2023

The attempt of the EU legislator and of the Luxemburg Court to simplify the VAT rules for travel agencies resulted in complex system, applied differently by the Member States. The intention of the author of this paper is to outline the defining elements of this special scheme, as they result from the CJEU case‑law.

Il formalismo interpretativo nell’impiego dell’argomento “ex auctoritate”

Author(s): Przemysław Michowicz / Language(s): Italian Issue: 2/2024

In the process of legal argumentation, each time an interpreter uses an ex auctoritateargument, by referring to the consolidated jurisprudence, he must be aware of the dan-ger of being accused of using legal formalism. In the present paper, this issue has beenexamined in relation to the published jurisprudence of the Supreme Tribunal of the Ap-ostolic Signatura, because to this jurisprudence are generally referred the judges of thisTribunal when hearing similar and already resolved cases, as well as ecclesiastic supe-riors when they put into practise some administrative functions of their government.The results of the query authorize the adoption of a preliminary conclusion that judicialformalism does not accept extreme forms of argumentation that may lead to right butunjust decisions; however, it strengthens the authority of the Supreme Tribunal itsel fevery time an administrative judge refers to an analogous controversy and issues a similarjudgment.

Preliminary Chamber According to the Latest Amendments to the Criminal Procedure Code

Author(s): Eugen Gheorghe Crişan / Language(s): English Issue: 1/2023

The author examines the Romanian procedure before the preliminary chamber during the penal (criminal) procedure as regulated by current legal norms. The basis of the examination is formed by the requirements for a fair trial in the course of penal justice, especially from the perspective of the specific objections which may only be raised in the preliminary phase of the procedure. The author concludes that the preliminary chamber procedure may be optimized under several aspects in order to ensure a better, more efficient approach to the criminal trial.

Company Law Aspects of Matrimonial Property Litigations

Author(s): Noémi Suri / Language(s): English Issue: 1/2023

A number of studies in the Hungarian legal literature have explained the challenges raised by the ‘division’ of common property contributed to a company. The aim of this paper is to explore the current corporate law aspects of matrimonial property litigations as a result of the entry into force and joint application of the Hungarian Civil Code and the Code of Civil Procedure. In order to achieve this goal, firstly, the author focuses on a critical analysis of the existing procedural law governing matrimonial property lawsuits, with a special emphasis on the intersection of litigious and related non-litigious proceedings. The second part of the research project examines matrimonial property law provisions applicable to the various company forms that may constitute matrimonial common property according to the set of rules governing legal persons in the new Civil Code.