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Review of: Šišková, N. et al. "Lisbon Treaty and its Impacts on the European, International and National Law of the Member States"; Prague, Leges 2012, 284 p. by: Josef Blahož
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Fair-trial guarantees were originally developed for the protection of natural persons accused of criminal conduct, taking into account the fact that such persons might be punished by imprisonment in case they would be found guilty. These guarantees stem from international, European and national law and the corresponding jurisprudence. Increasingly, this jurisprudence is being employed in proceedings of different nature - proceedings with legal persons, most often undertakings, equipped constantly with professional legal representation. Most case-law of such nature is connected with antitrust proceedings. On an example of privilege against self-incrimination, this article will argue that in antitrust proceedings against undertakings, the traditional jurisprudence, developed for the purposes of criminal proceedings, cannot be fully employed.
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The Regulation Brussels I is claimed to be the most successful instrument on international civil procedure of all time.1 Together with its predecessor the Brussels Convention 1968 it has been instrumental in harmonizing the jurisdictional issues in the EU and EEA countries and reforming the process of recognition and enforcement of judgments. Recently further simplification of its subject matter has been carried out by the European law maker in the form of the Regulation Brussels I Recast, which came into force in January 2015. The paper addresses the most fundamental changes introduced by the Recast Regulation. We seek to analyses the major new amendments as opposed to the old regime under the original Brussels I Regulation and establish whether they are suited to achieve their objectives. To this end, the paper begins with Part I, which introduces the background and purposes of the new Recast Regulation. It is followed by Part II, which discusses the introduced changes: the abolition of exequatur, changes to the lis pendens rule, and the reinforced arbitration exclusion. The discussion is concluded with Part III, which gives an overview of the prognosis for the application of the newly amended provisions and the extent, to which the Recast Brussels I Regulation stands up to its purpose.
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The aim of this article is to analyse asylum law on the territory of the former German Democratic Republic. After the first part of the article, the author describes GDR's migration law and migration policy. Subsequently, the article focuses on constitutional regulation of asylum in particular and on reception of „political emigrants“. In the next part, the author deals with changes of asylum law arriving since the process of transformation of legal system until German reunification. Finally, the author demonstrates the basic attributes of GDR's law on foreigners and asylum law.
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On the occasion of the centenary of the International Labour Organization (1919) presents the author an analysis of the ILO’s combat against forced labour. Both conventions dealing with forced labour are two of the eight ILO’s fundamental conventions. The author does not limit himself to conventions and recommendations as the central legal instruments, but he pays attention to ILO’s activity in this area in its complexity, including empirical research and other activities. In the conclusion, the author presents both thoughts that the ILO could start dealing with in the future and measures that the Czech Republic should adopt based on the ILO’s work in this field.
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In this article we analyze the forms of protection of distinct types of cultural heritage under International Criminal Law. Initially, we introduce the concept of categorization of cultural heritage into types, and review its historical development. The main focus is on the present day approach to the protection based on human rights, which builds heavily on the link between a certain type of cultural heritage and a community or individual. Later, we examine the possible ways to prosecute attacks against cultural heritage under International Criminal Law. Our analysis demonstrates, that the attacks against cultural heritage may, under various circumstances, fall under the category of war crimes, crimes against humanity, or genocide. We support our conclusions by jurisprudence arguments from case law treating the prosecution of destruction of cultural heritage under International Criminal Law.
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This article critically analyses an interpretation and application of necessary and reasonable measures to prevent or repress crimes committed by the subordinates in the Bemba case. The aim of the Article is to analyse the Pre-Trial Chamber, Trial Chamber and Appeal Chamber findings on necessary and reasonable measures in connection to responsibility of person effectively acting as a military commander. In doing critically analyses of the interpretation and application, this article evaluates legal challenges faced by the ICC in using superior responsibility, with special focus on the relevance of motives behind the measures taken by a superior or commander and the issue of remote commander. This study provides first comprehensive analysis of necessary and reasonable measures requirement in the Bemba case and as such, offers the latest development on the superior responsibility doctrine applicable at the ICC.
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The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.
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Substantive human right to environment represents a relatively new element in international human rights catalogues. This human right has gradually become established in international public law since the 1970s. This paper deals with the identification and analysis of the formal sources of two branches (or, according to some opinions, subbranches) of international public law – international environmental law and the international human rights law that enshrine substantive human right to environment as well as with the identification of the relevant international law mechanisms of direct and indirect protection of this right.
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The United States Supreme Court (USSC) and the Constitutional Court of Korea (CCK) have adopted sharply different positions regarding the justiciability of “political questions.” On one hand, the USSC has generally refrained from adjudicating political questions, as shown in Nixon v. United States, Terlinden v. Ames, and Goldwater v. Carter. On the other hand, the CCK has regularly tried cases concerning political questions, as demonstrated in The Impeachment of the President (Roh Moo-hyun) Case and The Comfort Women Victims Case. The text of the U.S. and South Korean constitutions, their views about the proper role of the judiciary, and prudential factors explain why the USSC and the CCK have taken different approaches towards adjudicating political questions. Furthermore, the experiences of each country provide important lessons for the other: on one hand, the CCK experience has shown how a more active approach towards reviewing political questions can (1) create legal standards that keep government branches accountable in novel situations, (2) help prevent a political branch from acquiring tyrannical rule, and (3) enhance the judiciary’s legitimacy in the public. On the other hand, the USSC experience has demonstrated how a more restrained approach towards reviewing political questions may (1) strengthen the commitment of all branches to the principle of separation of powers (2) enhance the consistency and predictability of judicial decisions, and (3) lead to resolutions of issues by the branch with the most training and expertise.
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This paper deals with the question, whether, how and to what extent the Charter of Fundamental Rights of the EU could enter the scene of constitutional review before the Czech Constitutional Court. In connection to Czech Republic, this question must react on the special constitutional category – Czech constitutional order, which includes also international agreements on human rights which are binding for the Czech Republic. The paper analyses the question, whether EU Charter can be understood as such international commitment or not and what are the options of its application by the Czech Constitutional Court and also how we can define its relation to the constitutional order. Paper distinguishes 3 scenarios: 1) inclusion of the EU Charter into the constitutional order of the Czech Republic; 2) refusal of formal inclusion of the EU Charter into the constitutional order of the Czech Republic; and 3) understanding of the EU Charter as association of constitutional order, capable to be used within the constitutional order even without the formal inclusion into the set of Czech constitutional rules.
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The article focuses on the substance and effects of judicial decisions. Judgements of domestic courts and those of the Court of Justice of the EU are examined separately in terms of their nature. Specifically, the article deals with the question of their binding effect and also whether they can be considered a source of Czech and EU law. The author discusses and questions the opinion, which is currently prevailing among Czech authors, that decisions of supreme courts should be considered binding and simultaneously a source of law comparable to precedents, as they are known in Anglo-American law. The article further points out that the alleged similarity between judgements rendered by the Czech courts and the Court of Justice of the EU is merely ostensible, as each of them has a different nature and effects in the Czech legal environment. The conclusion is, in simple terms, that judgements of domestic courts generally cannot be considered a source of law, that they do not contain any new legal norms and, finally, that they comprise merely a simple and changeable interpretation of legal norms created by the law-making body.
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The COVID-19 may become a new opportunity for expanding mass surveillance by states. It is already called a security threat, and states are taking appropriate measures to prevent it, including restricting human rights. Abandoning surveillance technology will not be easy after a pandemic and mass surveillance can become the standard for preventing threats. To prevent such a scenario, the approach of the European Court of Human Rights (ECtHR) may be a turning point in the expansion of mass surveillance. The research examines the current case-law of the ECtHR in order to analyse the attitude of ECtHR to mass surveillance. The research is focused on the question whether it can help to prevent the mass surveillance to be the norm for the post-pandemic world. The research reveals an increasing bias in case law of the ECtHR towards legalizing mass surveillance and the lack of updating the new criteria for the legality of mass surveillance. Тhe ECtHR is likely to agree with most of the measures that states have introduced to prevent the COVID-19. Authors note that a due attention should be paid to human rights as potentially an effective tool to prevent widespread legalization of mass surveillance. The issue of using invasive tools to regulate mass surveillance, which are now used to resolve the COVID-19 situation, may become even more significant in the future.
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This article deals with the legal instrument of collective actions for competition law infringements. The text touches upon the pros but also cons of this concept interpreted usually as the boost needed for private enforcement of competition law, yet bringing also risks of selective protection of competition and even bullying competitors. The article provides illustration of the struggle between the effort to make collective actions and thus the private enforcement of competition law in general more attractive in the light of the blooming U.S. model and the concurrent legislators´ will to refrain from the most negative features of the model mentioned. An insight into the hitherto soft and hard law initiatives in the area of collective actions in the EU and the Czech Republic and their interplay with competition law is offered.
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This paper deals with the limits of the right to truth and right to justice under the International Convention on the Protection of All Persons from Enforced Disappearance. The right to truth and right to justice in particular are tested under the condition of contemporary Spanish legal order.
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Geo-blocking is the new phenomenon of the current digital era, which affects our everyday lives. Geo-blocking is a modern form of discrimination which is considered a geographically based restriction for consumers that may be a ban for free movements and therefore affect the single market of the European Union, too. The European Commission adopted the Digital Single Market (DSM) Strategy in 2015 by which a new path forward to innovation was taken down. The new EU Commission led by Ursula von der Leyen aims not only the continuation of the development of the DSM to improve our digital welfare, but introduced the concept of the promotion of European way of life which is strongly interlinked with the digital aspects, too. As the human perspectives of our lifestyles came up to a higher level of policymaking, digital readiness, skills, and geo-discrimination might also be part of current debates. The research intends to present the geo-blocking as a new issue for the society, politics and economy, then broadly summarizes its definitions and the latest solutions for the treatment of unjustified restrictions in the EU.
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Tracing back the roots of the Global Compact for Migration and the Global Compact on Refugees, from the Sutherland Report, the New York Declaration, the Platform on Disaster Displacement and the Nansen Initiative, back to the Balkan wars, which led to the Temporary Protection Directive, one can identify two challenges, which combine, especially taking into account increasing mixed migration: One root is the wish to cope with situations of mass influx, when large numbers of people start to move across borders as refugees, displaced people or migrants. The other source is the climate change, which also could lead to migration and displacement of people. These two challenges were brought into a structure by the two compacts. This article describes the development, which led to the compacts, analyses, that the compacts do not create new obligations for the states and new individual rights, but give suggestions how to improve migration management, and shows, what the next steps could be.
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The regulation of public procurement fulfils an essential task for the proper functioning of states. Public procurement directly influences the efficient public spending within a state. No doubt that the process shall be supervised by an independent and qualified institution. However, is this the case? In order to answer the question, the article chooses the jurisdiction of the Slovak Republic and it explores whether the supervisory body, the Office for Public Procurement, is to be seen as independent. Due to the fact that the notion of independence is unclear, the article presents the understanding of this notion and the criteria encrypted therein, following which the notion is applied to the Office for Public Procurement and to its leadership in particular. Since it is established that there is room for improvement regarding independence of this institution, the article presents concrete proposals for improvement of independence of the Office for Public Procurement.
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The following work aims at analyzing the theme of regional environmental cooperation within the Northern Dimension, a joint policy created by the European Union together with Norway, Iceland and the Russian Federation which sees the Northern Dimension Environmental Partnership as a collaborative dimension between governments, private companies, public stakeholders and local communities in the implementation of projects aimed at environmental protection. In the logic of international law, the dynamics of the NDEP are particularly interesting to study as representing a model of virtuous cooperation in the environmental protection field and in the prevention of international disputes related to cross-border pollution in the Nordic region. The precautionary approach that is actively enforced through the implementation of the of international environmental law obligations, makes the Northern Dimension Environmental Partnership considered a unique example of its kind, thanks to its ability in contributing to sustainable development in the region.
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Article 50 of the TEU acknowledges the right of the member states to withdraw from the EU. The provision entitles to a unilateral, unconditional, but not immediate withdrawal from the European Union, which renders relatively easy in procedural terms to trigger the process. As landmark need should also be noted, Article 50 of the TEU releases from the strictures of public international law, and in case its absence of an explicit withdrawal, so the applicable law will be the Vienna Convention on the Law of the Treaties. Short and long-term impacts could result from the negotiation process between the UK and the EU and “Hard” or “Soft” Brexit. In particular, how the “internal market” will be regulated, will it remain as a complete package or some part will be transformed depending on the future relations between the UK and the EU, the article will focus on the possible forms of relations such as Free Trade Agreement (FTA), European Economic Area (EEA), Custom Union Agreement (CUA), and Bilateral Agreement (BA).
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