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The book Domestic Judicial Treatment of the European Court of Human Rights Case Law. Beyond Compliance analyses how our Czech apex courts comply with the European Convention on Human Rights. This article posits that non-compliance with the Convention is anti-systemic conduct and national courts should lead dialogue with the European Court of Human Rights in case of doubt or disagreement with its case law. The fact that the book did not reveal any serious shortcomings fits into the favourable context of the Czech Republic and the activities related to the enforcement of Court judgments. The answers of all three apex courts to legal problems analysed at the micro-level may not always be satisfactory from the point of view of the case law of the European Court (ne bis idem principle or official gender reassignment). Sometimes, domestic courts have to respond to the legislator’s concerns about amending legislation (restitution of property or rent control). In the issue of education of Roma children, the courts were not much involved, due to the lack of suitable proposals to initiate proceedings. This article concludes that the book is a stone in the hitherto unfinished mosaic of research into the issue of state compliance with human rights obligations.
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Causes of action in common law are the most commonly used in civil trials. According to the common law, the causes of action are a combination of facts presented by the plaintiff in the direct form for initiating civil proceedings (single claim in England and complaint in the United States). The cause of action are a bridge that connects civil wrong with the legal remedy required and obtained by the court. Claims for a lawsuit may be filed for civil wrong doing of the defendant. The wrong doing of the defendant may consist of a tort or a breach of contract. Breaking the contract is the only cause of action. Unlike the breach of contract, tort law (civil misconduct) does not have a single cause of action. Tort is divided into three different types of claims in the lawsuits that differ from each other in the defendant's defense actions: intentional tort, negligence tort and strict liability tort. Causes of action in a lawsuit under equity law are: unjust enrichment and claims in reasonable value for the work done (quantum mervit).
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The article summarizes the work of the UN Security Council in 2021. It points out the problems which, for political reasons, could not be decided or even discussed in the SC, and those points in the SC’s agenda where a consensus could not be built and voting was required; it also discusses the only draft resolution vetoed in 2021, concerning the inclusion of climate change in the framework of the security-related discussions and actions of the SC. Next, it presents the topics in the agenda where a consensus was achieved, mainly decisions on sanctions and the prolongation of the mandate of missions. It emphasizes that SC’s resolutions, apart from the ones concerning COVID-19, frequently touch upon the problem of explosive remnants of war, landmines and improvised explosive devices; as well as of the need to stop the transfer of weapons and ammunition to armed groups. In addition, SC often warned of attacks against humanitarian personnel and problems with the delivery of humanitarian aid. After discussing basic data concerning peacekeeping, the article shows that the UN and its members often use double standards when the issue of gender balance, security of humanitarian staff and the fight against sexual misconduct is concerned.
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Înalta Curte de Casație și Justiție, secția a II-a civilă, decizia nr. 1741 din 29 septembrie 2020.
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Clauze abuzive în contractele încheiate cu consumatorii. Principiul echivalenței. Principiul efectivității. Procedură de executare ipotecară. Caracter abuziv al clauzei care stabilește nivelul nominal al dobânzilor moratorii și al clauzei privind exigibilitatea anticipată care figurează în contractul de împrumut. Autoritate de lucru judecat și decădere. Pierdere a posibilității de a invoca în fața unei instanțe caracterul abuziv al unei clauze contractuale. Competența de control din oficiu a instanței naționale/ Abusive clauses in contracts concluded with consumers. The principle of equivalence. The principle of effectiveness. Mortgage enforcement procedure. Abusive nature of the clause that establishes the nominal level of default interest and of the clause on anticipated demand that appears in the loan contract. Authority of res judicata and forfeiture. Loss of the possibility to invoke before a court the unfair nature of a contractual clause. Ex officio control competence of the national court CJUE, Marea Cameră, hotărârea din 17 mai 2022, cauza C-600/10
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The Romanian High Court of Cassation and Justice – Administrative and Tax Section recently concluded that the simple allegations of tax authorities as to the existence of a fraud are not sufficient proof to justify the denial of the deductible character of expanses made by a taxpayer. Relying on the relevant case-law of the Court of Justice of the European Union – cases C.F., Vikingo and PPUH – and its own case-law, the High Court concluded that the taxpayer provided sufficient evidence of its acquisitions and the relevant documents were able to justify such acquisitions. Since tax authorities did not challenge the reality of the acquisitions and, moreover, did not provide evidence as to the involvement of a taxpayer in a fraudulent mechanism, the mere failure of some taxpayers to account for their sales and pay the relevant taxes was not able to change that conclusion.
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Hotarârea Curții de Justiție a Uniunii Europene din data de 24 februarie 2022, pronunțata în cauza C-257/20. Hotarârea Curții de Justiție a Uniunii Europene din data de 24 februarie 2022, pronunțata în cauza C-582/20. Hotarârea Curții de Justiție a Uniunii Europene din data de 24 februarie 2022, pronunțata în cauza C-605/20. Hotarârea Curții de Justiție a Uniunii Europene din data de 10 februarie 2022, pronunțata în cauza C-9/20. Ordonanța Curții de Justiție a Uniunii Europene din data de 10 februarie 2022, pronunțata în cauza C-191/21. Hotarârea Curții de Justiție a Uniunii Europene din data de 10 februarie 2022, pronunțata în cauza C-487/20. Ordonanța Curții de Justiție a Uniunii Europene din data de 7 februarie 2022, pronunțata în cauza C-460/21. Hotarârea Curții de Justiție a Uniunii Europene din data de 3 februarie 2022, pronunțata în cauza C-515/20. Hotarârea Curții de Justiție a Uniunii Europene din data de 13 ianuarie 2022, pronunțata în cauza C-156/20. Hotarârea Curții de Justiție a Uniunii Europene din data de 13 ianuarie 2022, pronunțata în cauza C-513/20.
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Curtea Constituțională a stabilit că echilibrul contractual în ipoteza contractului de credit nu se determină prin raportare la întregul patrimoniu al debitorului sau la posibilitățile sale financiare de rambursare a creditului, ci prin raportare strictă și exclusivă la conținutul clauzelor contractuale. De asemenea, a evidențiat că diferențele de curs valutar apărute pe perioada de executare a contractului, ca unic și exclusiv factor generator al impreviziunii, trebuie analizate doar din perspectiva consistenței valorice și a persistenței temporale. În cauză, devalorizarea CHF, în raport cu moneda națională a fost în proporție de peste 50% în condițiile în care la momentul încheierii contractului de credit (15.09.2008) paritatea față de leu a CHF era de 2,27 lei, iar aceasta a ajuns la momentul declarării scadenței anticipate a creditului (2014) la aproximativ 3,60 lei. Această fluctuație importantă a cursului valutar care prezintă o situație continuă, în sensul unei constante în timp, constituie o situație de impreviziune contractuală, cu consecința unei dezechilibrări majore a prestațiilor părților și a antrenării unei obligații mult prea oneroase în sarcina recurenților contractanți în raport de cealaltă parte contractantă și anume intimata.
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Due to the dynamic development and technological progress in the field of forensic techniques, it is possible to use an innovative method of terrestrial 3D scanning in visual inspection activities. The aim of the article is to present the issues related to the introduction of modern 3D laser scanning technology, influencing the improvement of criminal proceedings carried out at the crime scene by prosecution. The possibility of using 3D scanning as a measurement tool at a crime scene and as a technology for recreating the course of a crime in a courtroom is analyzed. Particular attention is also paid to the research carried out by the Police School in Piła together with the Scanning and 3D Modeling Laboratory at the Institute of History of Architecture of Art and Technology of the Wrocław University of Technology and Leica Geosystems regarding the possibility of using 3D scanning systems during site inspections at crime scenes and their documentation. The focus was also on discussing the use of 3D scanning at a crime scene in the current legal status in Poland. The paper presents advantages of using and mapping this modern method at the scene and the use of this technology in the world and in Poland, which turns out to be fast, efficient and precise to a degree satisfying the requirements of modern forensics and criminal proceedings. In addition, 3D laser scanning also eliminates the need for the investigation team to return to the scene, thus simplifying the process of documenting and describing spatial data. The paper examines views of legal scholars and commentators by means of, i.a an analysis of legal literature, forensic literature and legal provisions, especially those set out in the Polish Code of Penal Proceedings.
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The Supreme Administrative Court in the judgment discussed raised an important issue of the duration of a tax inspection at a microenterprise. The judgment clearly states that the tax authorities may not conduct such inspections that exceed the statutory time limits. Thus, the duration of an inspection with a taxpayer who is a microenterprise may not go over 12 working days consecutively. The inspection activities should be carried out in a continuous system. The duration of a tax inspection should also include the time when the inspectors are not actually present at the inspection site. An analysis of the law in force was carried out in preparing this commentary.
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Hotărârea Tribunalului, Camera a patra, 25 iunie 2020, cauza T-552/19, Malacalza Investimenti Srl împotriva Băncii Centrale Europene (BCE)
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C.J.U.E., Camera întâi, hotărârea din 10 iunie 2021, cauzele conexate C-776/19-C-782/19.
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The aim of the gloss is to analyze the decision of the Supreme Court of January 9, 2020, file ref. act III KK 583/18. The ruling issued relates, inter alia, to the application of art. 2 § 2 of the Fiscal Criminal Code (F.C.C) in court proceedings in the scope of the assessment of provisions on the statute of limitations for tax offences. The Supreme Court took the position that the intertemporal rules set out in art. 2 § 2 of the F.C.C., may be applied in the case of the limits of the statutory threat, which limits are then a condition for determining the length of the limitation period. Therefore, in the context of considerations about the scope of validity of the institutions included in the Fiscal Criminal Code in time, it becomes necessary to analyze the temporal rule contained in art. 2 § 2 of the F.C.C. in the context of the amendment to the act.
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Immediately after the collapse of the communist system in Europe, the countries of central and eastern Europe experienced remarkable changes, not only political and economic, but also in the field of crime. Here, we refer to the exacerbation of violence, to the diversification of the modes of operation, to the structures of the gangs of criminals and to a greater internationalization of the links of the different types of crime. The governments of the European countries have recognized that, nowadays, organized crime, including in the segment of human trafficking, represents a real threat to the security and stability of the region and its population. Currently, by renewing the legislation and adapting the legislative arsenal (including the special investigation activity) to the international norms, the improvement of the criminal procedures is aimed to facilitate the activity of the judicial authorities in the field.
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The paper analyses the right to be exempt from jurisdiction (immunity) under customary international law and European civil procedural law following the interpretation of the Court of Justice of the European Union. The aim is to research the balance between this right and the right of access to the courts as its potentially restrictive factor in the case law of the Court of Justice of the European Union and to compare it with the case law of the European Court of Human Rights. In deciding the LG and Others v. Rina and Ente Registro Navale as the most important case in this regard, the Court of Justice of the European Union states that the national court before which the issue of exemption from jurisdiction arises, must be persuaded that there will be no violation of the right of access to the courts, if it accepts the immunity objection. In this way, the Court determined the limit of exemption from jurisdiction by allowing the waiver of jurisdiction for reasons of compliance with international legal obligations and noting the need to preserve fundamental rights. However, as to the terms of that limitation, the Court remained vague.
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The main goal of this contribution is to expand the existing knowledge about the largest retribution process in the history of post-war Czechoslovakia by looking at the commitment and attitude of the Nitra canon Andrej Cvinček, who at the time of its preparation and proceedings was the vice-chairman of the Slovak National Council and the vice-chairman of the Democratic Party in Slovakia, that is, the association that participated in the creation, approval and adoption of the regulation on retribution courts, and played a role in the process itself.
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The present article aims to analyze selected aspects of the conflict between two basic values: freedom of expression and freedom of religion. Based on the co-called Aiisa’s case (see the judgement of the European Court of Human Rights of 22 July 2021, Ana Gachechiladze v. Georgia, App. No. 2591/19), the paper proposes general criteria for assessing insults to religious feelings. It is argued that national courts must not act as guardians of concrete religious groups or conventional morals, as this leads to negative results and destruction of the national law system. As a rule, it cannot be excluded that sacred images and figures are used in commercials or other ways of expression. When adjudicating on a case, every court should primarily consider the context, content and form, and prohibition of expression should be the last and final resort.
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In the Kingdom of Spain, under the 1953 Concordat, the jurisprudence recognized the effectiveness of canon law regulations on the representation of legal entities of the Catholic Church in Spanish private law. The justification for the reception of canon law provisions in Spanish law was seen in the concordat provisions, in general civil law regulations on the representation of legal persons or in art. 38 para. 2 of the Spanish Civil Code, which makes a clear reference to the concordat with the Holy See. As follows from the judgements discussed in this article, the reception of canon law concerns not only the main canon law act (i.e., the Code of Canon Law), but also other sources of canon law such as in particular constitutions of religious orders. The case-law of the Spanish Supreme Court (Tribunal Supremo) focused on such issues as, in particular, the impact of the conditions specified in the permission for alienation on the effectiveness of the legal act performing alienation, the differences between the content of the request for the permission to alienate or the permission itself and the content of the legal act performing alienation, as well as the canonization of civil law pertaining to contracts. All these issues were resolved in favour of the reception of canon law.
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