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The Role of the European Court of Human Rights in Promoting Horizontal Positive Obligations of the State

Author(s): Monika Florczak-Wątor / Language(s): English Issue: 2/2017

Over the last forty years the concept of the horizontal positive obligations of the State Parties to the European Convention on Human Rights has been developing in a number of cases of the European Court of Human Rights. This concept extends the protection of Convention rights and freedoms to horizontal relations, that is, to the relations between two private parties. However, the Convention on Human Rights can be violated only by the State; the violation by private parties is not possible, as private parties are not parties to the Conventions. Therefore, the only way to challenge a violation of Convention rights committed by private parties is to link this action to an act or omission of the State, and to claim that the State is responsible for it. This, in turn, requires demonstrating that the Convention obliges the State to protect one individual’s Convention rights from violations committed by other individuals. The State has a wide margin of appreciation as to how it discharges the obligation to protect Convention rights against violations by private individuals.

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Juliana v United States of America: The Final Frontier for Climate Litigation in America?

Author(s): Yolandi Meyer,Willem H. Gravet / Language(s): English Issue: 1/2020

This article analyses the protracted climate change case of Juliana v United States of America. We consider the history of the case as well as the most recent judgment of the Federal Court of Appeals, which seems to be the final judgment in this case as it is not foreseen that the case will be appealed with any success. The Juliana case provided hope for many people in the United States that the case would be able to succeed and possibly alter climate change policy in the country. Although the latest judgment will be disappointing to climate change activists and those affected by climate change, we agree with the ruling of the majority opinion in the Court of Appeals case and believe that it is a sound legal decision despite its general disapprobation.

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Law-Making Activity in the Case Law of the Constitutional Court of Ukraine

Author(s): Kristina Trykhlib / Language(s): English Issue: 2/2019

The aim of this paper is to reveal and examine law-making elements in the jurisprudence of the Constitutional Court of Ukraine. It should be noted that the Constitutional Court has no direct powers to establish new legal norms under national legislation. However, in the process of constitutional interpretation, the case law of the Court demonstrates de facto the presence of law-making activity, that leads to the extension of its discretionary power on the formation of law. The paper will focus on the analysis of the practice of the Constitutional Court of Ukraine with regard to the ‘creative interpretation’ of law. A review of selected case law leads to a conclusion that the Constitutional Court often uses the dynamic interpretation of the Constitution. Moreover, the Court may change its own legal position in order to protect constitutional rights. Thus, the Constitutional Court of Ukraine has the right to ‘develop’ the law through evolutive interpretation of the Constitution. It can also be concluded that the Constitutional Court enjoys a wide ‘margin of appreciation’ in its interpreting of the Constitution.

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Circumventing Obligations Through Multinational Military Operations: Legal Consequences for Troop Contributing States

Author(s): Tuomas Heikkinen,Martin Faix / Language(s): English Issue: 1/2019

If member States decide to circumvent their international legal obligations by acting through a military operation led by an international organisation, the institutional veil of which provides a shield against their responsibility for possible wrongdoings, an accountability gap can be identified. The contribution explores one of the possibilities for addressing this gap, the prohibition of circumvention, as enshrined in Art. 61 DARIO. The provision stipulates the possibility to hold the troop contributing States accountable. However, arguably the problems with international organization’s accountability gap cannot be solved in most cases by holding the States responsible over the actions of the MMO. Problematic appears such solution against the necessity to satisfy the thresholds of intent to circumvent and causing the organization to act in certain way, as required by the principle enshrined in the Article 61 DARIO.

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Farrell II and the Concept of an ‘Emanation of the State’

Author(s): Krystyna Romanivna Bakhtina / Language(s): English Issue: 1/2018

The Court of Justice of the EU (CJEU) has established that directives cannot produce horizontal direct effect and thus may only be invoked against the State or its emanations. In the recent Farrell 2 judgement, the Court has clarified the concept of an ‘emanation of the State’ which is crucial for the purposes of applying vertical direct effect. The aim of this paper is to analyse the concept of an ‘emanation of the State’ presented in Farrell 2 ruling. Further, the article highlights that the judgement is a positive development as it brings consistency to the EU case law and corresponds to the present realities when new ‘emanations’ are emerging with the special powers attributed by the State.

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Прекратяване на наказателното производство от първоинстанционния съд по дела от общ характер на основание чл. 24, ал. 1, т. 5 НПК и съответствието му с правото на Европейския съюз

Author(s): Debora Valkova-Terzieva / Language(s): Bulgarian Issue: 2/2021

The subject of this research is a specific prerequisite for the termination of criminal proceedings in public criminal cases, regulated in Article 24, Paragraph 1, Item 5 of the Bulgarian Code of Criminal Procedure. This analysis was necessitated by the fact that the European Union had introduced certain obligations for the Member States.

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Vybrané aspekty kolúznej väzby podľa právnej úpravy a judikatúry vo vzťahu k prípadu očistec

Author(s): Miloš Deset / Language(s): Slovak Issue: 2/2021

This paper contains the analysis of the case-law of Constitutional Court of Slovak Republic and Supreme Court of Slovak Republic, which is focused on the collusive custody from constitutional and procedural view. In the first part of this paper, the custody is analysed from the constitutional a procedural view, in the second part, the reasons of the collusive custody are analysed universally and in the third part, these reasons are analysed in connection with the decision of Specialized Criminal Court in the case of Purgatory, in which former top officers of Police Corp, including its president, are alleged.

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Нови инструменти за международно правно сътрудничество по наказателни дела от 1970-те години. Конвенция за предаване на лица, осъдени на лишаване от свобода, за изтърпяване на наказанието в държавата, чиито граждани са – исторически и правни аспекти

Author(s): Elena Vicheva / Language(s): Bulgarian Issue: 2/2022

This article outlines the history, the nature and the philosophy behind the multilateral transfer agreement signed in Berlin on 19 May 1978 between some socialist countries including Bulgaria (the Berlin Convention). The last part of the article is devoted to the evaluation of the Berlin Convention and its relevance to the present day.

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Стандарти при прилагането на Европейската конвенция за защита правата на човека при приобщаването на частни видеозаписи в наказателното производство

Author(s): Gergana Ivanova / Language(s): Bulgarian Issue: 2/2022

The article is focused on the conflict between private video recordings as evidence in criminal proceedings and the right to privacy within the meaning of Art. 8, para. 2 of the European Convention on Human Rights. As regards the scope of the monitoring, the need for a study is due to the lack of uniform standards in the treatment of such records. In this sense, the study of the ECHR’s case law is vital to deriving a catalogue of criteria for their admissibility as evidence in the process and to raising awareness of citizens about the permissible violation of their right not to be monitored without their consent.

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Competenţa poliţiei în asigurarea redobândirii posesiei asupra bunului pierdut

Author(s): Grigore Ardelean / Language(s): Romanian Issue: 6/2022

Whatever we do in a society affected by the feeling of materialism, dying, increasing the value of patrimony, and with it existential comfort, we can never be sure that we control the entire patrimonial mass, being possible to keep it intact all the time. So, there are a multitude of circumstances in which we can lose the de facto control over the goods in our ownership in different ways: open evasion, covert or dispossession by cunning methods, the claim of which is possible with the support of the coercive force of the state through the application of long-standing legal mechanisms known to jurisprudence. In the protection of the person affected by such actions, of course, the most important role belongs to the police body that can and is obliged to act with all its levers, a valid issue in the matter of ensuring the regaining of ownership of lost property.

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LIBERTATEA DE GÂNDIRE ÎN SISTEMUL CONVENŢIEI (EUROPENE) PENTRU APĂRAREA DREPTURILOR OMULUI ŞI A LIBERTĂŢILOR FUNDAMENTALE. EVOLUŢII JURISPRUDENŢIALE

Author(s): Mihail Poalelungi,Sergiu Suvac / Language(s): Romanian Issue: 12/2022

Despite the fact that today universal and regional treaties expressly regulate freedom of thought, the process of realizing it in practice reveals multiple difficulties of a not necessarily legal nature. A considerable contribution to the consecration and development of freedom of thought is brought by the jurisprudential activity of the European Court of Human Rights. As a living, dynamic instrument, the European Convention on Human Rights easily adapts to new challenges. The jurisprudence of the European Court of Human Rights presents itself as a valuable source in order to understand the nature and content of the freedom intended to protect the forum internum. In this sense, we can affirm that the jurisprudential creation in this regard anticipates doctrinal works, essentially constituting a source of inspiration for doctrinaires in order to write scientific works, among which the present scientific approach is included.

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Obmana ili iskrenost? Dva priznanja pred Međunarodnim krivičnim sudom za bivšu Jugoslaviju

Author(s): Jasmin Medić / Language(s): Bosnian Issue: 2/2022

The author analyzes two cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY), specific to the guilty plea of the accused. Stevan Todorovic, the chief of police in Bosanski Samac, is the highest-ranking official in the municipality who has pleaded guilty and expressed remorse for his own responsibility and the crimes committed. Damir Došen, a shift guard at the Keraterm camp in Prijedor, did the same. Were the acknowledgments of these two convicted war criminals an expression of true remorse or a way to avoid higher prison sentences by reaching an agreement with the court prosecutor's office? The answer to this question is suggested by the analysis of the behavior of Todorović and Došen after serving his prison sentence.

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НЕЗАБАВНО ИЗПЪЛНЕНИЕ, В ЧАСТТА ОТНОСНО МЕРКИТЕ ЗА НЕОТКЛОНЕНИЕ, НА СЪДЕБНИТЕ АКТОВЕ, ПОСТАНОВЯВАНИ В ПЪРВИЯ СТАДИЙ НА СЪДЕБНАТА ФАЗА ПО НАКАЗАТЕЛНИ ДЕЛА

Author(s): Yanko Roychev / Language(s): Bulgarian Issue: XXI/2022

One of the issues on which the court decides during the first stage of the judicial phase in criminal cases concerns measures of procedural coercion. The current research focuses on the problem related to the initial moment of execution of the ruling, respectively the injunction, in its corresponding part, with an emphasis on the measures of remand detention in custody and house arrest. In the case law it is assumed, without being based on explicit legal grounds, that when a measure of remand is imposed or amended into a more severe one, the court act is executed immediately, but when a measure is revoked or amended into a less restrictive one, the act is executed when it enters into force. The statement has been substantiated according to which it is essential that comprehensive rules regulating these powers be established. Several possible legislative solutions and their consequences have been analysed.

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ENVIRONMENTAL IMPACT ABOVE ORGANIZATION’S PERFORMANCE Case study ROMGAZ GROUP & ROMANIAN NAVY

Author(s): Ciprian BURLACU / Language(s): English Issue: 17/2022

Climate change and environmental degradation are an existential threat to civilization. Before the Pandemic and the War on Ukraine the growing concern about the environment and the realization that organizations are the major contributors of harmful emissions and waste as well as major consumers of resources, have resulted in the adoption of the European Green Deal [1]. To overcome climate change and environmental degradation, the European Green Deal was set to transform the EU into a modern, resource-efficient and competitive economy, ensuring no net emissions of greenhouse gases by 2050, economic growth decoupled from resource use and all that by teamwork with no person and no country left behind. The European Green Deal is also our lifeline out of the COVID-19 pandemic. The long-term effects of the COVID-19 pandemic [2], associated government and private sector’s responses on the environment, are linked to the impact of sectoral and regional shocks to the economy until 2040 to a range of environmental pressures, including greenhouse gas emissions, emissions of air pollutants, the use of raw materials and land use change. The impacts of the pandemic on economic activity are not clearly distilled yet. While many countries are now relying on vaccination and improved treatments, China has stuck to a policy of lockdowns and other restrictions (zero-COVID strategy). In addition, recovery packages are still evolving/in progress in many countries. Furthermore, the success of vaccine campaigns implies that there is a higher chance of becoming endemic, the speed with which life “returns to normal” remains to be seen. Last but not least, Russia's war started on February 24 puts additional pressure on a still fragile economic system and lots of challenges lie ahead. Spiking commodity prices combined with significantly higher energy prices following invasion of Ukraine means the spectre of inflation and insecurity looms large and therefore Romania’s efforts to build a resilient economic recovery from COVID-19 just got harder. In the current geo-political context it’s high time for Romania to rise above the times and through smart and timely investments and actions such as those described in this case study to benefit from the strategic relevance of the Black Sea and, with an integrated approach, become a provider of security, energy and food for Europe.

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The right to defence in proceedings in the case of a financial penalty being imposed for infringement of banking law by a supervisory authorities in Germany and Poland

Author(s): Weronika Stawińska-Artecka / Language(s): English Issue: 3/2022

The article aims to present the model of proceedings in the case of a financial penalty being imposed for infringement of banking law in Poland and Germany and verify whether the parties' right to defence is ensured. The above issue is extremely topical, especially in light of the number and amount of financial penalties imposed by banking supervisory authorities. The article's thesis assumes that the legal regulations in force in Poland and Germany make the indicated guarantee a reality. The article highlights the role of financial market supervisory authorities, whose activities, including the imposition of financial penalties, translate into the safety of the banking sector. Detecting and then sanctioning banking law violations motivates financial market participants not to commit such violations. First, based on an analysis of judicial decisions and international law norms, the criteria that an exemplary model implementing the principle of the right to defence should meet were established. On the other hand, the following part of the article compares the legal framework in Poland and Germany and verifies whether the legal provisions provide the parties with the guarantees in question when imposing a financial penalty for violations of banking law.

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PUBLIC ADMINISTRATION IN A EUROPEAN CONTEXT. CASE STUDY: POSSIBILITIES TO COMPLETE THE TRIAL PERIOD – PRACTICE AT NATIONAL LEVEL VERSUS PRACTICE OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL

Author(s): Camelia Daciana Stoian,Eugenia Iovănaş / Language(s): English Issue: 3/2022

As social policy is outlined and its objectives stated in the provisions of Article 151 of the Treaty on the Functioning of the European Union, both the Union and the member states must be responsible for respecting "fundamental social rights such as those stated in the European Social Charter signed in Turin on 18 October 1961 and in the Community Charter of Fundamental Social Rights of Workers adopted in 1989". In the light of these goals, we are concerned with an analysis aimed at a legal and fair promotion and harmonization of the procedure for filling positions at the public administration level, with an emphasis on the protection of social rights and the harmonization of good practices developed, in conditions of honest social protection and combating exclusion and discrimination of any kind. It is therefore necessary, at a theoretical level, to take it for granted that the Union and all its member states implement practices aimed at favoring the harmonization of social systems. Concretely, however, we find that the applied procedures neglect the approximation of the issued administrative documents and any kind of common methodology, as long as a report is not regulated or applied at the national level that reproduces the conclusions of the verification of the professional skills of the employee at the end of the trial period. We propose in this article a substantiated analysis of the methods of termination of trial periods, so that the termination of employment contracts concluded during the trial period exclusively through a written notification, without notice and without any motivation, is no longer the concern of the courts, because the court cannot verify the existence or not of the professional aptitude in the absence of the presentation of some arguments by the employer that aim to fulfill or not within reasonable terms the assigned duties, certain difficulties in the service relationship or the degree of accommodation with the administrative and hierarchical system.

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THE PRELIMINARY DECISIONS ISSUED BY THE COURT OF JUSTICE OF THE EUROPEAN UNION AND THE JUDGMENTS FOR RESOLVING LEGAL ISSUES OF THE HIGH COURT OF CASSATION AND JUSTICE. COMPARATIVE STUDY ON THE ADMISSIBILITY CONDITIONS

Author(s): Anamaria Groza,Vali Ştefania Ileana-Niţă / Language(s): English Issue: 3/2022

The study intends to discover resemblances and differences between the judicial institutions of preliminary decisions in EU law and decisions on unlocking matters of law delivered by the Romanian SCJ, both in civil and criminal fields. Our interest is to clarify the deep significance of these resemblances and differences from the perspective of law systems and the jurisprudence of the ECJ and SCJ. In the third place, we intend to evaluate the utility of these mechanisms of interpreting law and unifying practice from a general perspective, hoping that a system can become a source of inspiration for the other system. The research is descriptive, explanatory and comparative, being accompanied by relevant doctrine and jurisprudence.

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Zestaw z powiększonym VAT-em – glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 30 lipca 2021 r., I FSK 1749/18

Author(s): Michał Kuśmirski / Language(s): Polish Issue: 38 (2)/2022

The subject of the voted judgment was the problem of taxation of performance offered by fast food restaurants for factual situations occurring before the general interpretation of the Minister of Finance was issued in 2016. The position of the Supreme Administrative Court (hereinafter: NSA) has been assessed and verified as the first settlement covering this issue and which may be the beginning of the case law. The problem in the discussed issue was the application of the correct VAT rate and the conduct of tax authorities in this respect resulting in unequal treatment of taxpayers. The analysis of this subject made it possible to verify the position of the NSA expressed in the judgment under review and provided unambiguous arguments that it was fully justified. It states that the classification of a performance as a supply of goods or a supply of services is determined by whether the consumer purchases it as a takeaway or eats it on the premises, making use of the facilities provided. In addition, the competition-distorting behaviour of the tax authorities, which consisted in treating taxpayers unequally by applying different tax rates to the same activities, was contrary to the fundamental principle of the neutrality of VAT. Thus, the sale of takeaway food products in so-called fast food restaurants could be subject to a preferential 5% tax. In this study, the dogmatic-legal method and the historical method were used by examining both the existing and repealed provisions of tax law. Additionally, an analytical method has been used in the course of the analysis of literature and case law on the subject.

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Actul sexual cu un minor versus viol. Scurtă discuție despre consimțământ

Author(s): Ioana-Liliana Puica / Language(s): Romanian Issue: 2/2022

The issue of consent has been one of the most engaging subjects in the past few years. This paper aims to provide an insight regarding the already existing literature by analyzing a court ruling given by the Cluj Court of Appeal in regard to a number of sex-related offences as a landmark.

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THE MISSING POST-HOLOCAUST TRACES IN RECENT CASE LAW OF THE EUROPEAN COURTS

Author(s): Aleksandra Gliszczyńska-Grabias / Language(s): English Issue: 41/2021

The Holocaust constitutes one of the most powerful symbols in the history of humankind. Its memory, and in particular its irrefutable relationship with anti-Semitism, should trigger strict scrutiny every time anti-Semitic attitudes re-emerge, even if disguised as seemingly harmless words or actions. This applies also to legal measures,neutral on their face but which, in their consequences, may have an adverse effect on Jews, and thus raise the suspicion of anti-Semitic implications. Such implications are visible in the recent phenomena that serve as the two case studies for the present article:boycotts of Israel and bans on ritual slaughter (Shechita). While in the case of anti-Israeli boycotts, the core arguments relate to international anti-discrimination law and policies, in relations to the Shechita bans claims about violation of the religiousfreedom of observant Jews prevail. At the same time, in both cases strong references to the Holocaust and the memory of its victims are being invoked, allowing one to raise objections as to the status of the relevant legal developments. Here again history and memory enter into the public and legal discussions, legislative processes, and courtrooms.

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