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Електронні ініціативи як інструмент е-демократії: досвід України і Латвії

Author(s): Dmytro V. Luchenko / Language(s): Ukrainian Issue: 155/2021

The article is devoted to a comparative legal analysis of the experience of Ukraine and Latvia in the implementation of the institution of electronic initiative as an important tool of direct e-democracy. The practical question of why in some countries e-initiatives are a real leverage, while in others it is more likely just a marker that signals certain problems of concern to society, prompts a thorough study of legal regulation and information technology support of e-initiatives. For a comparative analysis of the regulation of the procedure for submitting and considering an electronic initiative, the experience of Latvia as a state that has demonstrated real successful results of the work of the online platform ManaBalss.lv as a tool for presenting, registering, discussing, considering an electronic initiative and solving issues in it was selected. In addition, the experience of this country shows that an increase in the level of participation of citizens in the management of public affairs is possible provided they are provided with an effective and convenient mechanism of influence. The article focuses on the shortcomings of the legal regulation of the institution of electronic petitions in Ukraine as the main factor in the ineffectiveness of this tool of e-democracy, including the absence of a special legislative act on electronic petitions, a legislative guarantee for resolving the issue that is raised in the petition, failure to take into account public opinion, expressed in a petition that received fewer votes than is required by law, etc. The necessity of introducing a mechanism for preliminary verification of the content of electronic petitions for constructiveness, reliability and reality is indicated. It is noted that for the proper implementation of the goal of direct e-democracy, levers of influence on the government must be created, which will make it listen to the problems of public concern.

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Activity forms of municipal authorities and prospects for its development in Ukraine

Author(s): P. A. Trachuk,Iryna Nesterova / Language(s): English Issue: 155/2021

The authors attempt to explore the nature of local public authority, its sources of legitimacy, its types and forms. An idea of the constitutional and legal bases of the organization and activity of local public authorities and its bodies is given there. The existing systems of local self-government in different states are analyzed; attention is focused on the difference between the concepts of “self-government” and “management”. The problems of administrative reform in Ukraine in the context of globalization are analyzed there.

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Шляхи запровадження національної концепції інтегрованої організації поліцейської діяльності

Author(s): Kristina Vladimirovna Solntseva / Language(s): Ukrainian Issue: 155/2021

The analysis of the current law enforcement system allows to state the existence of certain problems related to its construction and some aspects of activity. After the administrative reforms in Ukraine, the indicators of assessing the level of public confidence in the National Police gradually began to improve, but the practice of foreign countries shows better breakthroughs in the organization of policing. Therefore, the relevance of the article is explained by the need to introduce in the national legal system a new concept of policing, which would take into account the successful experience of foreign countries and course of our country for European integration. First of all, the article is devoted to the analysis of the existing models of law enforcement systems in the world in order to determine the most favorable and effective for national law. It was found that the integrative model of organization of police activities today demonstrates the most effective indicators in the work of foreign police, so it can be considered a guide for implementation in Ukraine. Based on this, the author proposes his own definition of the term “integrated policing”. The author pays special attention to the successful experience of the Baltic States and the United States in policing, in particular in the field of training highly qualified police officers, police and community cooperation in partnership, and international cooperation in exchanging experience of specialized law enforcement services. For example, the national legal system should pay attention to such development programs as the creation of port police, increasing the duration of specialized training of police officers, involving citizens in patrols on a voluntary basis, increasing the competence of local police departments. Analyzing the relevant practice of foreign countries, the author pays attention to the peculiarities of the functioning of the national law enforcement system, as well as its own achievements. In conclusion, there are several possible ways to introduce into the legislation of Ukraine the main development programs and principles of functioning of the police of foreign countries in Europe and America. The main result of the work is the design of the concept of an integrated organization of policing and the expected results from its implementation – reaching a new level in the process of European integration.

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Національні інтереси держави та можливість обмеження права на свободу слова: питання співвідношення

Author(s): R. Chernysh,L. Osichnyuk / Language(s): Ukrainian Issue: 155/2021

The article examines the possibility of restricting the right to freedom of speech in order to protect the national interests of the state. An analysis of normative legal acts prohibiting the dissemination of destructive information, such as calls for a violent change in the constitutional order of Ukraine, the outbreak of aggressive war, incitement to national, racial or religious hatred, etc. The right to freedom of expression is not absolute and may be limited. The article substantiates the criteria for state intervention in the information sphere, which allow limiting the dissemination of destructive information and preserving democratic values. Such criteria include the legality of the procedure, the legality of the purpose and the minimum amount of intervention. The article considers the existing mechanisms in Ukraine to respond to harmful informational influences. The law provides for liability for disseminating false information at several levels: civil, administrative and criminal. At the same time, these mechanisms are insufficient, as the concepts of «misinformation», «fake», etc. are not normatively defined. The article describes the state policy to combat destructive information influence. The bases of activity of state bodies created for the purpose of counteraction to dissemination of misinformation and propaganda are considered, namely the Center of counteraction of misinformation at Council of National Security and Defense of Ukraine and the Center of Strategic Communications and Information Security at the Ministry of Culture and Information Policy. The strategies of the state on counteraction to harmful information influence are analyzed. The Doctrine of Information Security of Ukraine is considered, which clarifies the basics of the state information policy in the direction of counteracting the destructive information influence of the Russian Federation in the conditions of the hybrid war unleashed by it. The main provisions of the Information Security Strategy, which defines the general principles of information security, are also considered.

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Capacitatea civilă a autorității contractante. Efecte în dreptul penal

Author(s): Mihai Dogaru / Language(s): Romanian Issue: 12/2021

Failure to comply with the rules of the civil capacity of the contracting authority as a legal person governed by public law is liable to render invalid the contracts concluded in this context. Failure to comply with these rules would not be possible without the passivity of the institutions concerned entitled under the law to check the good management of public money. This passivity takes the form of tort civil liability, including the conditions for discriminatory activity concerning (in regard to) the activity of enterprises (companies).

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Фактически състав на стопанската непоносимост

Author(s): Ivaylo Ikonomov / Language(s): Bulgarian Issue: 3/2021

Hardship is a special doctrine that allows a party to a contract to request its amendment or termination by the court in the event of extraordinary circumstances that have made its performance excessively onerous. The doctrine’s constituent elements are projected and their specifics are considered theoretically and in a comparative legal aspect. The relations between the distinct elements are analyzed and practical problems in their interpretation are discussed. In conclusion, findings are formulated and concrete proposals are made for the improvement of the legal framework.

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Obowiązek współdziałania stron przy realizacji zamówienia publicznego

Author(s): Grzegorz Klich / Language(s): Polish Issue: 1/2021

The purpose of the article is to draw the reader’s attention to the existing duty for parties to a relationship of obligation to co-operate at the performance phase of such an obligation. This duty is applicable to all types of obligations. However, it is most often analysed in connection with obligations arising from contracts. In this context, it is interesting how the duty to co-operate applies to obligations which are the effects of public procurement contracts. The article examines this problem in great detail. Reference is made to both the previously applicable law as well as the new Polish public procurement regulation.

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Glosa do uchwały Wojewódzkiego Sądu Administracyjnego w Poznaniu z dnia 3 lipca 2020 r., sygn. akt III SA/Po 261/20. Dofinansowanie na zabytek nieruchomy znajdujący się w innej gminie

Author(s): Ewa Pierzchała / Language(s): Polish Issue: 1/2021

The thesis of the resolution issued by the Provincial Administrative Court in Poznań is correct, although incomplete. Against the background of the issues contained in this thesis, a problem emerged related to the financing of an immovable monument located in another commune, owned by a local government unit other than the one in which the monument is located. In such a case, the commune, despite the fact that the monument is not on its territory, is responsible for financing renovation and conservation works to the monument as part of owner care. Additionally, it has the right to receive a subsidy pursuant to Art. 81 of the Act on the Protection of Monuments and the Guardianship of Monuments from the commune that has registered this monument in its records. It should therefore be emphasized that financing the protection and care of immovable monuments has two criteria. The first is the location of the immovable monument, and the second is the legal title to the monument. The first entitles one to receive a subsidy, while the second obliges one to finance these activities from one’s own funds. A commune that is the owner of an immovable monument on its territory will be deprived of the possibility of subsidizing the monument using the above-mentioned process. In turn, a commune responsible for a monument located in another commune will be able to finance its care from two sources, from subsidies and from its own resources.

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Repararea prejudiciilor cauzate prin actele administrative fiscale nelegale

Author(s): Alin Trailescu / Language(s): Romanian Issue: 04/2021

In this study, the author examines the issue of compensation for damage caused by unlawful administrative tax acts, which may consist in the payment of undue taxes to the public budget, in other types of patrimonial losses or in the impairment of non-pecuniary rights. Based on this premise, the author highlighted the existence of the patrimonial liability of the tax authorities for unlawful tax administrative acts, which he analyzed in the light of the provisions of the Administrative Code, the Tax Procedure Code and the Administrative Litigation Act no. 554/2004, since all these normative acts are interrelated. Thus, starting from the outline of the conditions of liability for unlawful administrative tax acts, the author presented the legal mechanisms of compensation for damages caused by such acts, discussing several hypotheses that may arise in practice and distinguishing between compensation for damages, consisting in the payment of unlawfully collected taxes to the public budget, and compensation for damages of another nature. In this regard, the author referred in particular to the provisions of MFP Order no. 1.899/2004, which regulates the general procedure for the repayment and reimbursement of sums from the budget, as well as the granting of interest due to taxpayers for sums repaid or reimbursed after the legal deadline, with the proviso that there are also a number of special regulations governing particular situations. Such are, for example: ANAF Order no. 187/2018 (approving Procedure for the refund of amounts representing taxes or other revenues of the state budget, overpaid or unduly paid and for which there is no obligation to declare), ANAF Order no. 1.760/2018 (on the Procedure for the refund of income tax withheld at source by the payer of income, in an amount greater than that legally due) and ANAF Order no. 3.699/2015 (approving the Procedure for the settlement of VAT negative tax returns with the option of refund and approving the model and content of some forms).

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The Fulfillment of the Compliance Obligation by the Legal Person and the Consequences of its Infringement from the Criminal Law Perspective

Author(s): Laura Stănilă / Language(s): English Issue: 01/2021

The fulfillment of the compliance obligation by the legal person is a new type of obligation arising in the modern economic context, the Romanian legislator bounding the legal entity with administrative and criminal sanctions in case of its infringement, even if there is neither a culture of compliance, nor a compliance legal system provided in the Romanian legal and social environment. In Romania, courts tend to convict legal persons in an „automatic mode”, the subjective element (mens rea) of a collective entity being extremely difficult to prove. Elements such as the fulfillment of the compliance obligation or meeting of the due diligence standard by the legal persons in carrying out their activity could be the key in avoiding „automatic” convictions founded exclusively on the rigid application of art. 135 of the Romanian Criminal Code.

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Ograniczenie sprawowania kultu religijnego w czasie epidemii COVID-19 w Polsce. Wymiar prawny

Author(s): Lucjan Świto / Language(s): Polish Issue: 3/2021

The functioning of religious communities in the public space during the period of increased disease related to the COVID-19 pandemic raises a number of socially important questions. On the one hand, these are questions about the attitude of religious communities in the fight against the SARS-CoV-2 coronavirus and whether during this period of increased trial for entire societies, churches and religious associations in Poland cooperate with countries to achieve the common good? On the other hand, there are questions about the extent to which state authorities are entitled to impose a specific behavior on religious communities and are there limits to state interference in the autonomy of religious communities in the time of the coronavirus pandemic? The above questions fit into the issue of the broadly understood relationship between the state and churches and other religious associations and touch upon an aspect of these relationships which – due to the unprecedented nature and scale of the pandemic itself – has not yet been the subject of much attention of modern science. The article is an attempt to answer these questions.

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Considerations Regarding the Annulment of Administrative Acts, both in Administrative Litigation and in Criminal Law

Author(s): Roxana Ionescu,Diana Anca Artene / Language(s): English Issue: 1/2021

The administrative act enjoys the presumption of legality, which in turn is based on the presumption of authenticity and veracity, being itself an enforceable title. However, the principle of legality of administrative acts presupposes that both the administrative authorities do not violate the law and that all their decisions are based on the law. It also requires that the authorities effectively ensure that these requirements are met. The cancelling of administrative acts may be ordered by both the administrative court and the criminal court. The administrative court examines whether there are grounds for illegality, while the criminal court examines whether an offense provided for by the criminal law has been committed.

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The communication of administrative decisions and the course of the time limits for challenging them. Comparative law solutions and perspectives of evolution in Romanian law

Author(s): Nicolae Alexandru Ceslea / Language(s): English Issue: 1/2021

The paper considers the mechanism of communicating administrative decisions in relation with the consequence over the course of the time limits for contesting them. The study begins with an analysis of the solutions found in comparative law and continues with the national perspective that includes a vertical approach, analyzing the normative versions of the last 30 years and those of today, as well as a horizontal approach, within the existing system in the current regulation. In the latter case, we target the provisions on the communication of administrative decisions to the beneficiary in relation to those on the communication to the third party, the regulation on the establishment of minimum and maximum time limits and the form that the communication must take to trigger the contestation time limits.

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Legal and organizational problems on identification of persons in activities of the State Border Guard Service of Ukraine

Author(s): Iryna Kushnir,Olha Tsarenko,Serhii Tsarenko / Language(s): English Issue: 1/2021

The article deals with the identification of foreigners and stateless persons, problems of legal regulation of relations of the State Border Guard Service of Ukraine on collecting biometric data of persons, types of data subject to collection, processing, storage and administration. The problems existing in the mechanisms of collecting biometric data of foreigners and stateless persons, as well as issues of personal data protection are considered. An attempt was made to suggest changes to laws and regulations in the field of migration and border protection on the basis of empirical data. The goal is to investigate the mechanism of identification of foreigners and stateless persons during border control procedures at border crossing points (checkpoints) and at entry-exit checkpoints, as well as during administrative proceedings and to identify ways to improve the legal regulation of these procedures in the activities of the State Border Guard Service of Ukraine. The methods used in the research were the analysis and comparison of national legislation with the legislation of the European Union Member States and the Council of Europe (including the case law of the European Court of Human Rights) on biometric data. The questionnaire survey method enabled to obtain objective information about the border guards' awareness of personal data. The forecasting method was used to formulate proposals for amendments to the legislation to improve the organization of work processes in the activities of the State Border Guard Service of Ukraine when using IT systems. The research will enable to improve the procedure for collecting biometric data of foreigners and stateless persons by border guards, strengthen the capacity of the State Border Guard Service of Ukraine to combat illegal migration.

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Problem niezawisłości sędziów pokoju

Author(s): Joanna Kielin-Maziarz / Language(s): Polish Issue: 4/2021

The judiciary undoubtedly requires reforms that will contribute to the improvement of its effectiveness. Establishing the institution of justices of the peace, in accordance with the drafters’ assumptions, is to contribute to the improvement of the operation of common courts. In the opinion of the drafters of the acts establishing this institution, the judiciary administered by justices of the peace may, in the public opinion, work better, and the judgments issued by them will be more socially accepted. The establishment of justices of the peace requires that their independence be guaranteed. The aim of the article is an attempt to answer the question whether the proposed judicial model of justices of the peace complies with the principle of judicial independence. Bearing in mind that one of the projects to restore the institution of justices of the peace includes the possibility of exercising this function by persons who may not have a legal education, or even having one, do not have a legal experience, it is highly doubtful that they can interpret the law properly on their own. Even if justices of the peace only judge in minor cases, judges without knowledge of the law and judicature will not be able to work effectively, which will directly affect the purposefulness of the proposed reform. The guarantee of judicial independence is also the irremovability of a judge from office. On the other hand, according to the presented proposals, justices of the peace are to be elected and perform their functions for terms of office, which undoubtedly does not contribute to the implementation of the indicated guarantee. Doubts are also raised because of the group of entities that can propose candidates for justices of the peace, and thus the very apolitical nature of justices of the peace. Correct construction of the institution of justices of the peace is not possible without taking into account the elements that make up the principle of judicial independence, otherwise it would be difficult to talk about their proper administration of justice.

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Rozliczalność jako forma optymalizacji odpowiedzialności prokuratora

Author(s): Michał Mistygacz / Language(s): Polish Issue: 3/2021

The subject of this article is the analysis of the prosecutor’s liability from the point of view of accountability, based on the criteria of effectiveness and efficiency. There is no doubt that the individual accountability of the public prosecutor is strongly determined by the organizational framework of the prosecutor’s office and the level of the granted independence of the prosecutor. In order to implement the postulated changes leading to an increase in the efficiency of the functioning of the prosecutor’s office, it is necessary to develop indicators for periodic evaluation of the prosecutor’s work. Only the adoption of individual evaluation criteria for each prosecutor will ensure the transparency of the institution’s work, strengthen the independence of prosecutors (by introducing clear and precise criteria for professional promotion) and contribute to increasing public confidence in the public prosecutor’s office.

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Problematyka nieusuwalności sędziów w orzecznictwie Europejskiego Trybunału Praw Człowieka

Author(s): Marcin Szwed / Language(s): Polish Issue: 3/2021

The purpose of the article is to establish the standards developed in the case law of the European Court of Human Rights with regards to the principle of irremovability of judges. For this purpose, two categories of cases are analysed: those in which individual applications were lodged by participants of proceedings before courts composed of judges who were not sufficiently protected against arbitrary removal from office, and those where applications were lodged by the judges themselves. In the case of the former group, the problems related to the irremovability of judges are considered through the prism of Article 6(1) of the ECHR. The irremovability of judges is perceived by the ECtHR as a fundamental guarantee of the independence of a court – systemic deficiencies in this respect may therefore lead to a violation of Article 6. However, the ECtHR underlines the need to take into account not only regulations but also practice. Still, the protection against removal from office is not absolute and some exceptions in this regard are allowed. As far as cases initiated by judges’ complaints are concerned, particularly important are Articles 6, 8, and 10. The first of them guarantees dismissed judges the right to a court – therefore, as a rule, it would be impermissible to remove judges without ensuring individual judicial review of the legality of removal. The ECtHR allows the exclusion of court proceedings in cases involving public officials, but only if such exclusion is provided expressly and is justified by the objective interest of the state. In the context of irremovability of judges, the latter criterion will be very difficult to meet. The two remaining provisions, Article 8 and 10, affect the substantive grounds for dismissing a judge from office. Therefore, it would be unacceptable to remove judges from their office as a repression for statements made by them falling within the limits of freedom of speech. The ECHR could also be violated if, in specific circumstances, due to the reasons or consequences of dismissal, it was considered a disproportionate interference with the privacy of a judge.

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Hesitantly towards mutual recognition of “vaccination passports”. A survey on potential ubiquity in administrative law

Author(s): Jakub Handrlica / Language(s): English Issue: Special/2021

The problem of potential ubiquity emerged in administrative law because of transboundary circulation of various certificates, licences and permits. These documents, approving certain facts, may appear before an administrative authority of another State. Thus, the applicable regime of public law must qualify the legal consequences of such documents in the realm of the applicable administrative law. This article aims to discuss this problem with regard to the challenges arising in the second year of the COVID-19 pandemics. Prospective introduction of “immunity certificates” and “vaccination passports” in various jurisdictions and the need to establish mutual recognition of such “passports” and “certificates” is the subject of attention. The article points out existence of several dogmatic approaches to the fact that foreign administrations have either approved a fact, or granted a right. Some of these dogmatic approaches have been reflected in the written law. However, at the same time, in theory, other solutions than those provided by the current legal framework would also be theoretically possible. The importance of these theoretical considerations is demonstrated regarding the very current discussions on the introduction of “immunity certificates” and “vaccination passports”.

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Jawność postępowania sądowego w świetle Europejskiej konwencji praw człowieka

Author(s): Janusz Roszkiewicz / Language(s): Polish Issue: 2/2021

The subject of this article is the right to open court proceedings as guaranteed in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The most important elements of this right are: the right to participate in a court hearing, the right to access to the case files and the right to acquaint with the ruling. This right applies not only to the parties to the proceedings, but also – albeit to a lesser extent – to every citizen. The text discusses the findings of the doctrine and the European Court of Human Rights, at times criticizing them especially with regard to the too narrow definition of the obligation to publicly announce the judgment. In addition, the article analyzes the extent to which the Polish law encourages openness in civil, criminal and judicial-administrative procedures.

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Local barriers in the efficient use of Green Public Procurement - case of Slovakia

Author(s): Tomáš Malatinec / Language(s): English Issue: 3/2021

Green public procurement is a voluntary tool through which public procurers can contribute to the objectives of environmental policy. The legal framework and public policy of green procurement is covered by the European Union. The main goal is to contribute to the consideration of environmental characteristics in public purchases as well as environmental management and the life-cycle costs of the goods, services and work. However, the objectives of the legal framework and the policy to promote green public procurement are often not achieved due to the barriers posed by economic practice. The aim of the article is to analyze the local barriers in the effective use of green public procurement in Slovakia. The processing of results is based on the annual evaluation reports to the National Action Plan for Green Public Procurement in Slovakia for 2016-2020. Identified local barriers include financial constraints on contracting authorities and a preference for evaluating contracts based on the lowest price criterion, insufficiently built administrative (personal) capacity to implement green public procurement, fear of discrimination in incorporating environmental criteria into tender documents and subsequent sanctions from control bodies. Last but not least, the voluntary application of green public procurement at regional and local level is also included among the barriers in the efficient use of this tool in practice.

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