Odstąpienie od wykonania świadczenia w świetle art. 138 Kodeksu wykroczeń – glosa do postanowienia SN z 14 czerwca 2018 r., II KK 333/17

Author(s): Anna Toporowska / Language(s): Polish Issue: 3/2020

This article is a partially critical commentary on the Supreme Court’s decision concerning the refusal of providing services to an LGBT foundation due to its activities. The commentary covers two main issues. First, the relation between freedom of contract and anti-discrimination regulation. In the author’s opinion, Article 138 of the Code of Petty Offenses concerns the non-contractual obligation to perform a service, which - at the date of the judgment - applied to every service provider of a given type. The second issue is the conflict between the freedom of conscience and the right to equal treatment. The author believes that freedom of conscience also includes the right to refuse to perform a service that promotes behavior contrary to the values professed by the service provider.

Prezumţia de nevinovăţie şi societatea controlată

Author(s): Mihai-Bogdan Marian / Language(s): Romanian Issue: 3/2016

In the EU Directive 2016/343 of the European Parliament and of the Council, additions were made regarding the presumption of innocence and the right to be present in criminal proceedings. The new regulation comes to reaffirm EU commitment to meeting the individual rights and freedoms, but in terms of its necessity is likely to signal some slippage in the evolution of contemporary society, liable to jeopardize the effective operation of the presumption of innocence. Some of these slippages may include certain side effects related to redefining relations between the public and private sphere as well as developments in telecommunications technology, which expose the contemporary society to the exercise of absolute control.ties.

ВЈЕЧНА ЗАХВАЛНОСТ ДРАГОМИРУ ПАЈИЋУ

Author(s): Žarko Milenić / Language(s): Serbian Issue: 3-4/2020

Једном ми је рекао Сеад Хасовић како ће бити вјечно захвалан Драгомиру Пајићу што је у Брчко, као директор Дома културе у првој половини седамдесетих година, довео “Golden Gate Quartet”, Донске козаке, фолклорни ансамбл из Индије и друге свјетске атракције. Имао сам прилике да гледам наступе Козака и Индијаца и те концерте и данас јако добро памтим иако је од тада прошло више од четрдесет година.

Processus Berkianus – soudní spor o mensální statek královéhradeckého biskupství z pohledu církevní hierarchie

Author(s): Petr Honč / Language(s): Czech Issue: 74/2019

The article deals with a long-standing litigation that Count František Antonín Berka of Dubá led from 1675 with bishopric of Hradec Králové represented by Bishop Jan František Kryštof of Talmberk. He brought an action for the validity of the purchase contract concluded bona fide in 1656 by Archbishop of Prague Harrach with his sister-in-law Anna Eusebia, born of Švamberk. Harrach bought the Chrast domain (near Chrudim) designated for the Hradec Králové bishopric for money from the salt treasury. The Uhřetice estate (Auřetitz) belonged also to this dominion, originally part of the family trust, as proved by Count Berka. From the beginning, the litigation developed against the Hradec Králové bishopric. The article monitors activity of individual church representatives and their futile efforts for the emperor’s intervention and transfer of the case to church tribunals.

Criteriile jurisprudențiale privind daunele morale acordate pentru leziuni suferite în accidente de circulație în temeiul asigurării obligatorii de răspundere civilă auto

Author(s): Bogdan Ioniţă / Language(s): Romanian Issue: 3/2020

Lacking the legal criteria for quantifying the general damages, the difficult task of identifying such criteria fell on the courts. This paper envisages to present the main criteria used by the courts of law to determine the amount of general damages in the event of personal injury resulting from road accidents, as they follow from the judicial practice for the years 2012 to 2019 reviewed. Although the content of the court rulings constantly refers to the criteria for the quantification of the general damages listed in Decision no. 89/09.06.2003 of the Supreme Court of Justice (the negative consequences suffered by the concerned person both physically and mentally, the importance of the damaged values, the extent to which these values have been damaged, the intensity with which the consequences of the injury are perceived, the extent to which the family, professional and social situation of the victim has been affected, fairness and proportionality), the courts have preferred to motivate their quantification of the general damages based on more concrete criteria. The case law consulted shows that the main criteria used by the courts for the quantification of general damages in case of personal injury are the number of days of medical care required for healing and provided in the medical certificate as well as the possible permanent or long term injuries suffered from the accident, including the loss of an organ or sense, or the extent to which the victim’s life has been jeopardized. Other important criteria held by the court are the victim’s contribution, the victim’s age, the standard of living, the social and economic context, the family relationship/affinity of the person causing the accident with the person claiming general damages, fairness and proportionality. The non-unitary and unpredictable judicial practice in the field of general damages for personal injuries resulting from road accidents confirms, among other things, the fact that until now there has not been a uniform approach to the criteria for the quantification of general damages by the case law. Nonetheless, even if there had been an uniform approach to these criteria, the risk for the amounts awarded by the courts to be different even in similar situations would still linger. Uniformity in the quantification of general damages could be achieved rather by using a table system for the quantification of general damages as established by the Spanish law or developed by the Italian case law. However, I believe that any step to synthetize and structure the criteria for the quantification of the general damages used by the judicial practice should be a useful tool for a greater coherence and predictability of the case law.

Sinteză de jurisprudență fiscală națională: Mai – iunie 2020

Author(s): Septimiu Ioan Puţ,Cosmin Flavius Costaş / Language(s): Romanian Issue: 3/2020

By its decision no. 1977 of 15 May 2018, the High Court of Cassation and Justice provided a remarkable interpretation of European and national tax legislation associated with packaging. In fact, ruling on the interpretations the Administration for the Environment Fund put forward, the High Court explained that various types of plastic bags (sandwich bags, snacks bags, aluminium foil, stretch plastic bags) did not qualify as primary, secondary or tertiary packaging as they did not have a packaging function. Consequently, neither the tax on packaging nor the ecotax are due for the sale of such types of plastic bags.

SOME REMARKS ON PREVENTION AND RESOLUTION OF POSITIVE JURISDICTION CONFLICTS BETWEEN CROATIAN (MEMBER STATE) AND SERBIAN COURTS IN CROSSBORDER SUCCESSION CASES – FROM CROATIAN (EU) AND SERBIAN POINT OF VIEW

Author(s): Slavko Đorđević / Language(s): English Issue: 2/2020

The aim of this paper is to examine the possibilities for prevention and resolution of positive conflicts of jurisdiction between the Croatian (EU Member State) and Serbian (third State) courts in succession cases in which the assets of estate are located in both Croatia and Serbia. All issues will be discussed from the perspective of both Croatian (EU) and Serbian private international law. As regards Croatian (EU) private international law, the study begins with the presentation of the relevant jurisdiction rules of EU Succession Regulation (ESR) which provide for the Croatian (Member State) courts to have jurisdiction to rule on the succession as a whole in most cases, irrespective of where the assets of estate are located (the so called principle of unity of succession), and continues with the profound analysis of the rule of Art. 12(1) of ESR, which enables the Croatian (Member State) courts to prevent positive jurisdiction conflicts with Serbian courts by deciding not to rule on the assets located in Serbia. In addition, some remarks will be made on lis pendens rule of Art. 60 of Croatian PIL Act, which aims to prevent the pending of two parallel proceedings involving the same cause of action and between the same parties before the Croatian and Serbian or any other third State court (i.e. to resolve the positive conflicts of jurisdiction between Croatian and third State courts). When it comes to Serbian private international law, the study assesses the jurisdiction rules of the Serbian PIL Act (Art. 71–73), which follows the principle of scission of succession, in order to determine the relevant positive jurisdiction conflicts which need to be resolved by Serbian courts and analyzes the lis pendens rule of Art. 80 of Serbian PIL Act, which represents the main tool for resolving such conflicts. Finally, in the absence of relevant case law on positive jurisdiction conflicts caused by the divergent rules of ESR and the Serbian PIL Act, two hypothetical cases involving such conflicts, created for the purposes of this paper, will be discussed from both Croatian and Serbian point of view.

DIJALOZI IZMEĐU USTAVNIH SUDOVA DRŽAVA ČLANICA EUROPSKE UNIJE I SUDA EUROPSKE UNIJE

Author(s): Stjepan Novak / Language(s): Croatian Issue: 3-4/2020

In the context of the discourse on constitutional identities, national constitutional courts enter into various forms of dialogue with the Court of Justice of the EU. After having engaged for an extended period of time in exclusively indirect dialogues that were more or less successful and were realised through their own practices, national constitutional courts started making use of the possibility offered to them pursuant to Article 267 of the Treaty on the Functioning of the European Union, i.e., the preliminary ruling procedure. The paper aims to prove that the dialogues which constitutional courts engage in with the Court of Justice of the EU are the most successful forms of their communication. For that purpose the paper compares these dialogues with indirect forms of communication between constitutional courts and the Court of Justice of the EU. It is in this context that the paper, following introductory considerations in the second part, considers the concept of constitutional identity from the viewpoint of the Court of Justice of the EU and the viewpoint of national constitutional courts. The third part of the paper analyses different forms of indirect dialogue between constitutional courts and the Court of Justice of the EU and draws conclusions about their effectiveness. The fourth part analyses particular procedures instituted before the Court of Justice of the EU by constitutional courts and points out the pros and cons of these procedures. Finally, the paper concludes that the procedures instituted by national constitutional courts pursuant to Article 267 of the Treaty on the Functioning of the European Union are the most direct and the most efficient forms of their communication with this Court.

From History to Courtroom and Back: What Can Historiography Obtain from Judgments for Crimes fn the Wars in the Former Yugoslavia

Author(s): Ivan Jovanović / Language(s): English Issue: 5/2015

Относно правото на маркопритежателя да забрани използването на по-късно регистрирана марка

Author(s): Diana Dimitrova / Language(s): Bulgarian Issue: 1/2020

The article explores whether the exclusive right of a proprietor of a trade mark to prohibit all the third parties from using, in the course of trade, signs identical with or similar to its trade mark extends to a third-party proprietor of a later registered trade mark, without the need for that later mark to have been declared invalid beforehand. The relevant national and European legislation as well as respective case-law are considered. A detailed analysis is made of Judgement of 21 February 2013 of the European Court of Justice on a preliminary ruling case C 56/11,Federation Cynologique Internationale v Federacion Canina Internacional de Perros de Pura Raza.

FORMULATIVE POLICY OF DEATH PENALTY FOR CORRUPTORS IN INDONESIA

Author(s): Ni Wayan Sinaryati,I Gede Artha / Language(s): English Issue: 17/2020

Corruption is committed by state officials, law enforcement and other related parties. Various efforts have been made by the government in preventing and eradicating corruption in Indonesia, but the efforts that have been made have not yet gotten optimal results. The fundamental weakness in eradicating corruption in Indonesia is the formulation of the main criminal sanctions in the form of criminal threats that are facultative, uncertain or must be. So that the corruptors are never deterred or afraid. In the future, the legislators need to reformulate the provisions of Article 2 paragraph (2) of the Republic of Indonesia Law Number 31 of 1999 as amended to Law of the Republic of Indonesia Number 20 of 2001 concerning Eradication of Corruption. Various criminal law policies still need to be carried out by the state in order to eradicate corruption to achieve the expected results. This type of research in this paper uses the type of normative legal research. The type of approach is in the form of a legal approach related to corruption. There are two legal materials used, namely primary legal materials and secondary legal materials, with legal material collection techniques used in the form of library studies. The analysis technique used is descriptive, interpretation, evaluation and argumentative techniques. The research in this paper intends and aims to examine and analyze the facts and phenomena of corruption that are stated in specific legislation concerning criminal sanctions (capital punishment) for corruptors in Indonesia. Moreover, corruption is qualified as an extraordinary crime so it needs extraordinary handling as well.

Observance of the Probative Value of the Psychiatric Forensic Expertise - Guarantee of Avoiding Judicial Errors in Criminal Proceedings

Author(s): Simona Irina Damian,Mădălina-Maria Diac,Anton Knieling,Tatiana Iov,Diana Bulgaru-Iliescu / Language(s): English Issue: 1/2020

Psychiatric forensic expertise is a type of evidence with a high degree of scientificity and, also a high degree of objectivity and credibility, which places it at the top of the evidence hierarchy in criminal proceedings. The practice of the courts reveals, a series of cases in which the conclusions of the psychiatric forensic examination were not taken into account at the time when the court issued a verdict, considering that the grounds on which the expertise was eliminated as relevant evidence in those cases is sometimes debatable. This article analyses the probative value of forensic psychiatric expertise from the perspective of the conflict that arises in judicial practice between the principle of scientificity of the evidence and the principle of sovereignty of the judge in assessing the evidence. It analyses the effects that scientificity has on the judge's actual possibility of assessing conclusiveness of the expertise by comparison with other evidence. The conclusions we formulate at the end of our analysis are that the psychiatric forensic expertise has the greatest probative force among all the evidence that could attest to the mental state of the victim or the accused; this evidence can be disregarded by the court at the time of ruling only if there is evidence with equal probative value to combat it; ordering new evidence by the court (supplements to expertise, new expertise, objections, requesting clarifications from the expert) to verify the credibility of the conclusions of the initial expertise should be done only after ensuring a framework that guarantees the compliance with the principle of scientific management of evidence.

REPERTORIUL DE JURISPRUDENȚĂ ÎN MATERIE FISCALĂ AL CURȚII DE JUSTIȚIE A UNIUNII EUROPENE: SEPTEMBRIE – OCTOMBRIE 2020

Author(s): Alexandra-Maria Mureșan / Language(s): Romanian Issue: 5/2020

Hotărârea Curții de Justiție a Uniunii Europene din data de 28 octombrie 2020, pronunțată în cauza C-321/19, având ca obiect o cerere de decizie preliminară formulată în temeiul art. 267 TFUE de Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Tribunalul Administrativ Superior al Landului Renania de Nord-Westfalia, Germania), în procedura BY, CZ c. Bundesrepublik Deutschland.

SERVICIILE PRESTATE DE STUDIO-URILE DE VIDEOCHAT. TAXA PE VALOAREA ADĂUGATĂ ȘI CAUZA GEELEN

Author(s): Livia-Maria Moldovan,Călin-Ștefan Haiduc / Language(s): Romanian Issue: 4/2020

Following a series of tax audits in Romania based on the Romanian tax authorities’ interpretation of the Court of Justice’s judgement in case C-568/17, Geelen, the authors provide a valuable insight on the organization of videochat services and particularly on the organization of the so-called “adult entertainment services”. The article points out the complex nature of such services and the need for a more thorough analysis of the services actually provided, in order to determine the nature of services and their possible VAT exemption, the taxable base, the standard or reduced VAT rate and, last but not least, the taxable person or persons that have to collect VAT and the place of supply for such services.

Convicted Nazi lawyer. The case of Gerhard Pchalek in the Gera District Court in 1960

Author(s): Konrad Graczyk / Language(s): English Issue: 29 (1)/2020

This study is devoted to a criminal case brought before a court in the German Democratic Republic against Gerhard Pchalek in connection with his service as a prosecutor in the Third Reich. Pchalek served in the Polish territories incorporated into the Reich, in Bielsko and Katowice. He was a prosecutor in proceedings before special courts in Bielsko and Katowice, as well as before the Higher National Court in Katowice, in which he filed motions to sentence defendants to the death penalty. In 20 cases – as was determined by the District Court in Gera – Pchalek demanded the death penalty, which was then imposed and enforced. His act was classified as aiding in murder under the provisions of the German Criminal Code, and Pchalek was sentenced to 4 years in strict regime prison. The paper discusses the biography of Pchalek, the issue of post-war criminal liability of Nazi lawyers and the criminal trial before the District Court in Gera. The study uses a historical, formal and dogmatic method. The criminal trial in question is one of the few cases in which a Nazi lawyer was convicted.

Sinteza hotărârilor în materie fiscală pronunțate de Curtea de Justiție a Uniunii Europene în perioada ianuarie-februarie 2021

Author(s): Author Not Specified / Language(s): Romanian Issue: 1/2021

Hotărârea Curții de Justiție a Uniunii Europene din data de 14 ianuarie 2021 în cauza C 108/19, ECLI:EU:C:2021:25, având ca obiect o cerere de decizie preliminară formulată în temeiul articolului 267 TFUE de Curtea de Apel București (România), prin decizia din 14 februarie 2018, primită de Curte la 11 februarie 2019, în procedura Krakvet sp. z o.o. sp.k. împotriva Direcției Generale Regionale a Finanțelor Publice București, Administrației Fiscale pentru Contribuabili Nerezidenți.

O analiză succintă a prescripției din dreptul fiscal. Importanța deciziei ICCJ nr. 21/2020 pronunțate în recurs în interesul legii

Author(s): Gabriela Dănilă / Language(s): Romanian Issue: 2/2020

This paper aims to present a brief analysis on the subject of statute of limitation in the field of tax law in order to provide a legal context for the reader regarding the importance of the Supreme Court`s Decision no. 21/2020 rendered in referral in the interests of the law. Then, the reasons which led to the use of the procedure consisting in the referral in the interests of the law regarding the running of the statute of limitation on the matter of tax liabilities established by the tax authority regarding the corporate tax will be analysed and also the consequences of the court decision in this matter.

Cauza C-61/19, Orange România c. ANSPDCP. O judecare injustă sau o expunere greșită a situației?

Author(s): Mirela-Niculina Morar / Language(s): Romanian Issue: 2/2020

The case of Orange Romania S.A. c. The ANSPDCP (Case C-61/2019) brought back intoquestion the manner in which the consent of the data subjects is expressed, thus it is either one valid under the regime of personal details processing. In this article, we will try to prove that the consent, like the legal basis, was not the basis for the processing of copies of identity documents.

Практика на съда на ЕС във връзка с марката на ЕС

Author(s): Gergana Liubenova / Language(s): Bulgarian Issue: 2/2020

This article discusses the framework of Regulation (EU) 2017/1001 in conjunction with the latest case law of the Court of Justice and the General Court of the European Union. The purpose is to examine the definition of the European Union Trademark, requirements for signs, capable to be registered as European Union Trademark as well as the absolute and relative grounds for refusal of registration by making an analysis of the case law during the recent years.

Ochrona dóbr osobistych sprawcy mobbingu w kontekście wyroku Europejskiego Trybunału Praw Człowieka z dnia 6 listopada 2018 r. (Vicent Del Campo przeciwko Hiszpanii, skarga nr 25527/13)

Author(s): Michał Barański / Language(s): Polish Issue: 18/2020

The employer is not always the perpetrator of mobbing. The employer’s responsibility for the actions of other people results from the employer’s breach of the obligation to counter mobbing (Article 943 § 1 of the Labour Code). Certainly, mobbing is a negative, undesirable phenomenon, and the interpretation of regulations shaping the employer’s responsibility for the effects of mobbing should take into account the aim of completely eliminating this phenomenon from the work environment. Precisely because of this aim, it is vital to discuss in broader terms, from the perspective of art. 943 of the Labor Code, the position expressed by the European Court of Human Rights in the justification of the judgment of November 6, 2018 (Vicent Del Campo v. Spain, no. 25527/13), which emphasized that the personal data of an employee who was not a party to court proceedings, with the indication that this employee committed acts of psychological harassment of another employee, constitutes a violation of the right of the perpetrator of these acts to respect his private life.