ЗАШТИТА ПРАВА ИЗВРШЕНИКА ПРЕМА ЧЛАНУ 6 ЕВРОПСКЕ КОНВЕНЦИЈЕ О ЗАШТИТИ ЉУДСКИХ ПРАВА И ОСНОВНИХ СЛОБОДА

Author(s): Igor Popović / Language(s): Serbian Issue: 39/2017

When deciding on the applicability of the right to a fair trial from Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to appeals arising from criminal proceedings, the Constitutional Court of BiH starts from the concept of the existence of new civil rights and obligations. Only if the executive procedure leads to the existence of new civil rights and obligations, appeals are admissible. Otherwise, the appeals are rejected because they are ratione materiae incompatible with the Constitution of Bosnia and Herzegovina and the Convention. The author believes that this kind of behavior is wrong and stems from a misinterpretation of the practice of the European Commission for Human Rights and the European Court of Human Rights. If the rules of enforcement procedure allow the executor to use legal means to prevent and suspend enforcement, then new and different legal issues arise than those that arose in civil proceedings when a civil judgment was passed. Accordingly, the appeals arising from the appellant's allegations that the executive court violated their human rights with its decisions regarding the legal means it used to prevent and suspend execution are admissible and compatible with the Constitution of BiH and the Convention.

СТЕЧАЈЕВИ ФИЗИЧКИХ ЛИЦА У ФРАНЦУСКОМ ПРАВУ

Author(s): Ranko Vulić,Jadranka Petrović / Language(s): Serbian Issue: 39/2017

In French law, there are four types of bankruptcies of natural persons: Bankruptcy of independent entrepreneurs (artisans, farmers and members of liberal professions). This type of bankruptcy is governed by the same rules as the bankruptcy of commercial companies, the French Commercial Code. Another type of bankruptcy is the bankruptcy of responsible persons in the bankruptcy proceedings of a liquidated company and an independent entrepreneur as a criminal sanction prescribed by the provisions of the French Commercial Code. The third type is personal bankruptcy as a professional sanction imposed during or after bankruptcy proceedings against an independent entrepreneur, or a responsible person (de facto or de iure) in a legal entity, due to negligent business or punishable actions (fraudulent use of funds that cause harm to others, payments despite insolvency, fictitious accounting, etc.) or due to the mere fact that the company does not pay its debts. This type of bankruptcy is also regulated by the provisions of the French Commercial Code. The fourth form is civil bankruptcy (consumer bankruptcy), i.e. natural person who does not belong to the mentioned categories. It is regulated by the provisions of the French Consumer Code.

РЕГУЛАТИВА ПРАВА ЕВРОПСКЕ УНИЈЕ ИЗ ОБЛАСТИ ПРАВА ИНДУСТРИЈСКЕ СВОЈИНЕ

Author(s): Jelena Damjanović / Language(s): Serbian Issue: 39/2017

With the creation of the European Union, European legislation is also created, whose normative activity regulates all legal branches for the sake of more effective functioning of the legal system. Thanks to the monopoly of industrial property rights, which were regulated by supranational regulations even before the creation of the European Union, a high degree of exclusivity in international business relations has been preserved.

ПРАВНИ АСПЕКТИ УГОВОРА О КРЕДИТУ СА ВАЛУТНОМ КЛАУЗУЛОМ У ШВАЈЦАРСКОМ ФРАНКУ

Author(s): Njegoslav Jović,Dejan Pilipović / Language(s): Serbian Issue: 39/2017

In this paper, the authors analyze the legal aspects of a loan agreement with a currency clause in Swiss francs. The authors start from defining the loan agreement, clarifying the currency clause and the variable interest rate, and based on the studied court practice in Serbia, Montenegro, Bosnia and Herzegovina, with a comparative review, they communicate the positions of the courts and the issues they dealt with. They often come across conflicting opinions and positions of the courts and see their initial disagreements, and wonder if there is a single solution (judicial, legislative, etc.) and which would be the most optimal. The authors set a framework for solving the problems related to these loans in the form of suitable legal institutes for application to this case. There is still no final solution and it is difficult to give a reliable forecast of the further development of judicial practice, especially in countries where there are no positions of the highest judicial instances. Based on the literature and judicial practice, the authors give and propose concluding opinions regarding the issues in question that have appeared as disputed in connection with this issue.

МАНДАТ И ОСТАЛИ ВИДОВИ ЗАСТУПАЊА У РИМСКОМ ПРАВУ

Author(s): Mirjana Miškić / Language(s): Serbian Issue: 39/2017

In Romanistics, the impossibility of representing the interests of other persons (alteri stipulari nemo potest) is cited as one of the axioms of Roman private law. Were the legal affairs of alineo nomine agere really unsustainable according to civil law, or were there indirect ways of representing the interests of other persons? The mandate as an institute of ius gentium is an example of indirect representation in Roman law, but in addition to the mandate there are other institutes, both of civil and praetorian law, which have the effects of representation. Services are not rare in Roman law and should be interpreted in accordance with the authentic Roman context, in order to see their true essence.

ДОЦ. ДР ДАРКО РАДИЋ: ,,ИМОВИНСКИ ОДНОСИ У БРАКУ“

Author(s): Radenko Jotanović / Language(s): Serbian Issue: 39/2017

Review of: ДОЦ. ДР ДАРКО РАДИЋ: ,,ИМОВИНСКИ ОДНОСИ У БРАКУ“ (Правни факултет Универзитета у Бањој Луци, Бања Лука, 2016, стр. 496)

Доц. др Зоран Васиљевић: ,,ПРАВА И ОБАВЕЗЕ ИЗ УГОВОРА О КРЕДИТУ“

Author(s): Stojana Petrović / Language(s): Serbian Issue: 39/2017

Review of: Доц. др Зоран Васиљевић: ,,ПРАВА И ОБАВЕЗЕ ИЗ УГОВОРА О КРЕДИТУ“ (Правни факултет Универзитета у Бањој Луци, Графопапир, 2015, стр. 271)

ПРАКСА УСТАВНОГ СУДА РЕПУБЛИКЕ СРПСKЕ

Author(s): / Language(s): Serbian Issue: 39/2017

ПРАКСА УСТАВНОГ СУДА БОСНЕ И ХЕРЦЕГОВИНЕ

Author(s): / Language(s): Serbian Issue: 39/2017

FROM THE PRINCIPLE OF SUPREMACY OF LAW TO THE PRINCIPLE OF SUPREMACY OF LIBERTY

Author(s): Marius Andreescu,Andra Nicoleta Puran,Ramona-Florina Duminică / Language(s): English Issue: 1/2023

Any attempt in the sphere of humanities to characterize and explain man in his individuality, but also in the social existential context, relates to the issue of freedom. Freedom is essentially related to the human being, but also to the existential phenomenality of man. Man is the only created being whose fundamental ontological dimensions are freedom and spirit. In this study we briefly look onto the concept of freedom not only as a moral value or category, but also as an ontological dimension of man. In this way we make the distinction between ontological freedom and the legal freedoms established or recognized by the legal norms. The legal liberties are a phenomenal expression of human existence whose legitimacy and motivation is conferred by the ontological dimension of human freedom. In this context, the main features of the legal freedoms and the practical importance of the ontological meaning are to be found in the freedoms consecrated in the law. Conscience is a defining existential reality of man, whose meaning can be seen only through an interdisciplinary unceasing effort of thinking and knowledge. In this study, we propose to make such an analysis of the conscience as an ontological oundation and characteristic of man, in its individual and social dimension, whose basis is made up of philosophical, theological and legal ideas, concepts and theories. Freedom of conscience is the main feature of the manifestations of man as a person within the specific environment of his/her existence. From the legal point of view, freedom of conscience is a complex fundamental right requesting a wide legislative system in order to establish and guarantee it. In our opinion, both the basis and the legitimacy of the legal system protecting the freedom of conscience are given by the philosophical truths and the truths of faith, as expressed in theological writings and meditations. In this study, we identify the theological and philosophical bases of the freedom of conscience and their reflection in the legal field. In exceptional situations, such as the state of emergency or the state of alert established for a long time on the Romanian territory, the rulers have restricted the exercise of some essential fundamental rights, restrictions that seriously affect the private and social life of the people.

Judicial search for a legal definition of religion

Author(s): Jakub Kříž / Language(s): English Issue: 26/2023

A prerequisite for the proper application of the law is a certain definition of the terms used in the law. A variable definition of a concept undermines the requirement of legal certainty, and an overly narrow or broad definition of a concept (compared with the general idea of its content) may lead to doubts about the fairness of legal regulation. Although the legal system uses the term “religion” relatively frequently, it does not generally define it explicitly. In most cases, this does not cause problems because there is no reasonable doubt as to whether we are dealing with a religious element. In hard cases, however, there is no choice but to decide where to draw the line between religion and other types of beliefs. The alternative is to stop distinguishing between them, thus depriving the religious element of its special legal status. The social sciences distinguish four basic approaches to the definition of a religious phenomenon. The substantive definition seeks to capture the content that a particular belief must satisfy in order to be labelled religious. The essentialist approach emphasises the experience of the believer. The functionalist definition notes the function that religion serves in the life of the believer. The analogical approach does not seek to capture the essence of religion but rather notes its manifestations and what different religions have in common. This article offers examples of the application of these theoretical approaches in jurisprudential practice. It also highlights the fact that courts work flexibly with the concept of religion and often give it a different content depending on the context under consideration.

Zakres podmiotowy i przedmiotowy kościelnych regulacji dotyczących ochrony danych osobowych. Glosa do postanowienia Wyższego Sądu Krajowego w Hamm z dnia 23 września 2022 roku, 26 W 6/22

Author(s): Bernard Łukańko / Language(s): Polish Issue: 26/2023

This paper presents an analysis of the order of the Higher Regional Court of Hamm, dated 23 September 2022 (26 W 6/22), and the preceding order in the first instance issued by the Siegen District Court, dated 26 November 2021 (2 O 236/21), relating to the permissible subjective and objective scope of data protection legal acts enacted by churches. The author analysed the view of state courts regarding the admissibility of the application of church data protection regulations in church-run medical facilities, as well as in relation to the collection of church taxes. He has demonstrated that jurisprudence supports a broad subjective and objective scope of church regulations, which has a direct impact not only on the formation of specific rights of data subjects but also on the competence of supervisory authorities. The level of protection of personal data, comparable to that of the General Data Protection Regulation (GDPR), provided for in-church legal acts implementing the power of a church or another religious association, as set out in Article 91(1) GDPR, leads to the acceptance of a broad subjective and objective scope of these acts, which also affects the rights of non-members of the church or other religious organization concerned. The support for such a solution stems not only from the existing norms of constitutional law and Article 91 GDPR itself but also from the essential similarity of the key norms of the church data protection regulations to the solutions provided in the GDPR.

The role of the Court in modelling the standard of equal treatment in employment: Analysis of the judgment of the Court of Justice in case C-344/20

Author(s): Anna Magdalena Kosińska / Language(s): English Issue: 26/2023

The aim of this commentary is to analyse the judgment of the Court of Justice in L.F. v. S.C.R.L., in which the Court analysed provisions of the Equal Treatment Directive (2000/78) in light of the general prohibition of discrimination on the grounds of religion or belief. The main proceedings in the case analysed concerned a Muslim woman who wore an Islamic headscarf and was doing an office internship at S.C.R.L., a cooperative limited liability company. Due to the neutrality policy at work, she was unable to manifest her religion and brought an action for a prohibitory injunction before a domestic court. In preliminary ruling, the Court decided that she was not a victim of discrimination.The F.L. judgment is a continuation of the Court’s line of judicial decisions in cases G4S and WABE referred to before. The article analyses the current case law of the CJEU and ECHR that touches on the problem of the expression of religious belief and seeks the answer to the question: Which value is more important to be protected in contemporary European society – the identity of the person or the freedom to conduct a business?

Dyskryminacja nauczycieli religii. Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 13 stycznia 2022 roku (C-282/19)

Author(s): Agnieszka Parol / Language(s): Polish Issue: 26/2023

This commentary analyzes the preliminary ruling of the Court of Justice of the European Union in the case C-282/19, YT and Others v. MIUR and Ufficio Scolastico Regionale per la Campania, issued 13 January 2022. The referring court made a request for a preliminary ruling, questioning the compliance of Italian law with EU law. The infringement of EU law was allegedly due to the abuse of successive fixed-term employment contracts and lack of effective measures to prevent discrimination of Italian Catholic religion teachers on the grounds of religion. When interpreting the law, the Court of Justice confirmed that the national norms excluding Catholic religion teachers in public education establishments from the scope of the provisions intended to penalise abuse of successive fixed-term contracts – where there is no other effective measure in the domestic legal system – constitute a breach of EU law. The Court also stated that the obligation to hold missio canonica cannot constitute an objective reason precluding the prohibition of employment discrimination. The commented judgment is one of many cases concerning the abuse of workers’ rights in the Italian public sector, in which the Court basically continues the previous line of jurisprudence. A novelty in the commented case is the interpretation of the prohibition of discrimination based on religion in employment and occupation. Contrary to the interpretation made by the national court, the Court of Justice did not confirm direct discrimination based on religion, which is prohibited under Directive 2000/78 and Article 21 of the Charter of Fundamental Rights. The extremely balanced and restrained position of the Court seems to result from the desire to maintain the broadest possible neutrality in the area closely related to the status of churches and other religious communities, which remains within the exclusive competence of member states, as established by Article 17 of the Treaty on the Functioning of European Union.

Międzynarodowa Konferencja Naukowa "Ideologies and State-Church Relations Legal Framework", Trnava, 5 maja 2023 roku

Author(s): Krystyna Ziółkowska / Language(s): Polish Issue: 26/2023

İSPANYA ÖZERKLİK TARİHİ ve AYRILIKÇI BASK MİLLİYETÇİLİĞİ

Author(s): Gökhan ZENGİN,Emine AKGÜN / Language(s): Turkish Issue: 60/2023

In a sense, the political history of Spain is considered as the arena of the power struggle of ethnically recognized nations against the central power. The Basques, whose ethnic difference is the most dominant in linguistic and cultural terms, have always been in a privileged position against any central power in Spain, thanks to the privileges called Foral rights that they brought from the Middle Ages onwards. This advocacy of rights, which has been accompanied by a strong sense of nationalism especially since the 19th century, has also led to the formation of separatist movements. The scope of this study is the development of nationalism in the Basque Country, which has always kept separatist claims on the agenda. The 1978 Constitution, although it could be a solution to ethnic problems by granting rights to regional self-governments, has been questioned for the future due to its legal flexibility that allows the increasing demands for autonomy of historical nationalities such as Basque Country and Catalonia to turn into secessionist referendums.

Конституционния статус на служебното правителство

Author(s): Desislava Hristova / Language(s): English,Bulgarian Issue: 2/2023

The constitutional status of the official cabinet is regulated in the Bulgarian Constitution as a decision not to leave the state without management, without executive power, as well as to guarantee the electoral process in order to hold fair elections. The purpose of this report is to once again clarify the constitutional status of the caretaker government, and to comment on the precedent in the last two years of administration of caretaker governments.

ODRICANJE OD JAMSTAVA PRAVIČNOG SUĐENJA U KAZNENOM POSTUPKU - NOVIJA PRAKSA USTAVNOG SUDA REPUBLIKE HRVATSKE

Author(s): Nataša Belamarić / Language(s): Croatian Issue: 2/2023

The paper provides an overview of the recent case-law of the Constitutional Court of the Republic of Croatia, which refers to the defendant's waiver of the guarantees of a fair trial as guaranteed by Article 29 of the Constitution of the Republic of Croatia and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to a fair trial does not prevent the parties to the proceedings, including the defendant, from waiving his or her entitlement to the guarantees of a fair trial. The waiver may be explicit, or it may result from certain behavior of the defendant. However, in order to be effective, it must meet certain standards that have been developed by the European Court of Human Rights.

BOSNA I HERCEGOVINA I KONSTITUISANJE AVNOJSKE JUGOSLAVIJE (1943-1945)

Author(s): Safet Bandžović / Language(s): Bosnian Issue: 10/2023

Abstract: Many states, like Yugoslavia, emerged from conflicting historical currents. A critical examination of the socio-historical multi- directional flows after the chaotic April War of 1941 and the rapid disintegration of monarchical Yugoslavia also encompasses rational knowledge of opposing political and national perspectives dating back to 1918 when it was established, with its problematic events between the two World Wars, their causes, and consequences. The turbulent interwar legacy and the failure to address acute problems within the state influenced the dramatic situation and conflicts in occupied Yugoslavia, leading to polarization, collaboration, and alignments. The state of war is a complex crisis situation. The breakup of Yugoslavia was met with divided opinions on whether (and if so, how and on what basis) to reestablish the state. Each Yugoslavia (the „old” and the „new”) also represented a, "new constitutional concept of the relationship between its major nations/political groups” (Dejan Jović). The successful antifascist liberation struggle from 1941 to 1945 was primarily led by the partisan movement, with the dominant role of the Communist Party of Yugoslavia (CPY). Vladimir Dedijer wrote that in 1941, a revolutionary war began, and „no one dreamed what its nature would be.” It was a civil war, destroying the idea that this state could be rebuilt in the form it took in 1918. It was a complex war („a war of all against all”) with numerous burdens (national, religious, social, historical). Anti-Yugoslav forces were long more numerous than pro-Yugoslav forces, which eventually triumphed. The speech of Yugoslav antifascism is most symbolically recognizable by the phrase: „Death to fascism - freedom to the people, ” and „ brotherhood and unity. ” By the decision on the federal organization of the state at the Second Session of the Anti-Fascist Council of National Liberation of Yugoslavia (AVNOJ) in Jajce in 1943, the foundational pillar of the previous Yugoslavia—state and national unitarism—was denied. AVNOJ's decisions were of a framework and principle nature. The federation was established, but until the end, the forms of all its units related to their borders and the structure of alliance members („ unitary or complex”) were not fully defined.

PREVENTION AND DETECTION OF CRIME WITH NARCOTICS (DRUGS) IN THE REPUBLIC OF NORTH MACEDONIA

Author(s): Muhamet Racaj,Arben Agushi,Аrianit Racaj / Language(s): English Issue: 3/2023

Drug abuse constitutes a significant societal and health challenge in the Republic of North Macedonia, the broader region, and globally. The detrimental consequences, stemming from both direct and indirect effects, profoundly impacted individuals, families, and society, extending to jeopardizing state security. The paper aimed to scrutinize the implementation of the criminal legislation of the Republic of North Macedonia concerning the prevention and detection of criminality involving narcotic substances (drugs) and the penalization of offenders engaged in illegal trafficking and unauthorized production of drugs. Employing the theory of change, which centered on identifying realistic positive transformations in the short and long term, coupled with applying the statistical method, the paper offered an overview of the number of criminal offenses. This overview was based on the official statistical data the Ministry of Internal Affairs provided for 2017 to 2022. Subsequently, the paper extended its focus to international cooperation, engaging in a comprehensive discussion on preventing and detecting criminality involving narcotic substances.