SUKOB NACIONALNOG I SUPRANACIONALNOG: POLOŽAJ IUS PUNIENDI U NOVOM MEĐUNARODNOM KONTEKSTU

Author(s): Maja Mirković / Language(s): Bosnian Issue: 17/2016

All the limitations and risks of the sovereign state, as a primary form of political organization of society of the people of Europe, came to the fore after the World War II. This led to the recomposition of the interstate relations in Europe and the change of the mere geostrategic position; the European Community was created, later the European Union, which became a legal entity stricto sense after the Treaty of Lisbon entered into force. What is perhaps most intriguing is the impact that the creation of such supranational artifact had on the erosion of the classical concept of sovereignty. Membership in such Union inevitably leads to the waiving part of sovereignty, and member countries are not always ready to do this. To illustrate this point, one can only remember the example of the criminal law of the European Union, which went all the way from complete ignorance of the institutions of the European Union to the supremacy, in terms of entry into force of the Treaty of Lisbon. The main purpose of this paper is to review this new position of the criminal law in the context of the European integration process, with emphasis on the limitations of the national criminal legislature, imposed by the law of Community on one hand, and the Treaty of Lisbon as a milestone in the development of the criminal law of the European Union on the other hand.

Konstytucyjne aspekty bezpieczeństwa

Author(s): Halina Zięba-Załucka / Language(s): Polish Issue: 2/2014

Experts usually agree that security (meant as safety) is a complex concept and that it refers, in general, to freedom from any threats to the fundamental values. Hence, the author presents in her paper the views on security. But since security as a natural and inalienable right is given particular prominence in the catalogue of rights protected by international law, the paper also addresses the instruments of international law that regulate these issues. The most important Polish legal instrument regulating security issues is the Constitution of the Republic of Poland adopted in 1997. It should be noted that the concept of national security has not been adequately explained in the Polish Constitution and generally, this term does not appear in the text separately. In this respect, Article 5 of the Constitution is of importance: “The Republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the natural environment pursuant to the principles of sustainable development”. Security regulations can also be found in other articles of the Constitution. The author emphasizes that, due to the broad scope of security issues and to the abundance of bodies and their subordinate units and offices that carry out tasks regarding this scope, there is a necessity to harmonize their activities. The constitutional regulations can be helpful in this respect. The Constitution clearly states that higher responsibility in this respect rests with the Council of Ministers. The role of the President is limited to supporting the government. This is clearly visible in the regulations concerning jurisdiction.

Organizovani kriminal u regionu Jugoistočne Evrope ( etiološka obeležja, zajedničke karakteristike i najčešći pojavni oblici)

Author(s): Danica Stepić / Language(s): Serbian Issue: 3/2010

During the nineties of the past century, the organized crime appeared as a consequence of economic and political changes in the Southeastern Europe region. Transition processes were influenced by the war events and so the changes were additionally burdened. Since the processes were followed by the violence caused by the war and the lack of the vision, the legal institution activities were replaced by different activities, including criminal activities. From the historical point of view, the organized crime presents the new activity in this area, but it reached and even overcame its competitors. Although the organized crime in the Southeastern Europe region had all main characteristics of the organized crime in general, started by the purposes, methods and organization, those characteristics were improved and adapted to the Southeastern Europe’s conditions. Thus this negative structure made of the professional criminals, corrupt politicians and subordinate policemen became a specific “Balkan” criminal company. In the other word, the organized crime was marked by the Balkan mentality. Thus, the profit goes beyond the earnings of many powerful international corporations and National Income of many countries. So, the organized crime in the Southeastern Europe region became one of the most powerful international crime gangs and a powerful competitor, not only to the other international criminal groups, but to the legal state economies, as well. As far as it raises power, especially financial power and influence of the organized crime to the legal social structures and to economic and political situation, the need of organized opposition to this very dangerous criminal organization is bigger. Thus the fight against the organized crime is a very important duty of each country, including the countries from the region. In that sense, a special attention should be paid to the fight against the organized crime, beginning with the normative regulation, trough the special organs and procedures oriented to the suppression of this social evil incarnated in the form of the organized crime.

Women a(t) Battlefield

Author(s): Albana Gërxhi / Language(s): English Issue: 2/2017

Intangible Cultural Heritage: Successes, Disappointments, and Challenges

Author(s): Lucas Lixinski,Hanna Schreiber / Language(s): English Issue: 2/2017

In October 2003, the UNESCO General Assembly adopted the Convention for the Safeguarding of the Intangible Cultural Heritage (the 2003 Convention). In the less than fifteen years that have followed, the 2003 Convention has been ratified by 178 countries, making it the second most successful cultural heritage treaty in the world (after the 1972 World Heritage Convention). The examination of both the successes and shortcomings of this instrument comprises a significant part of this issue of the “Santander Art and Culture Law Review” (SAACLR).

The 1995 Unidroit Convention Academic Project: Facilitating the Study of the Unidroit Convention on Stolen or Illegally Exported Cultural Objects

Author(s): Giuditta Giardini / Language(s): English Issue: 2/2017

Recent intentional destructions of world cultural heritage and the increased illicit trafficking of smuggled artefacts has resulted in a significant rethink of educational systems and models. Understanding the fundamental value of cultural heritage as a messenger of humankind’s identity will improve measures of preservation. Due to the need for global action at various levels via a multilateral approach, Unidroit is providing institutional and legal assistance, complementing the actions relating to exchange and cooperation and the operational measures provided by its partners.

The Inadequacy of the UN Legal System Remedies for Gender – Based Violence as an Example of the International Rule of Law Failure and the European Jurisprudence Response

Author(s): Olga Kostaniak / Language(s): English Issue: 6/2015

A number of international documents provide the core rules for the prohibition of gender based violence. The notion that men and women should enjoy human rights on an equal basis is part of all the main human rights instruments. The states have international and regional obligations under the due diligence standard as parties to treaties and conventions but none have abolish violence against women. Abuses that women generally suffer, such as domestic violence but also sexual assault, incest, rape and constrains of reproductive freedom and many others, do not fall within UN definitions of state action and thus occur outside the realm of international concerns. By Ertürk there is “a rule of customary international law that obliges States to prevent and respond to acts of violence against women with due diligence.” However the UN is ill-equipped to respond effectively to women’s problems and thus the rights of men and women are not equally protected anywhere. Fortunately, an effective response to this problem exists on a regional level, thanks to the approach, for instance, of regional courts of jurisprudence, such as the European Court of Human Rights. The rulings issued by the Court and its further incorporation by the states into their domestic legal orders set the legislative direction for whole international community giving a hope that finally violence against women will be recognized on a par with other abuses so far considered by international law to be more important.

THE IMPACT OF THE EUROPEAN COURT OF HUMAN RIGHTS ON JUSTICE SECTOR REFORM IN THE REPUBLIC OF MOLDOVA

Author(s): Judithanne Scourfield MCLauchlan / Language(s): English Issue: 2/2018

For this study, I reviewed the judgments of the European Court of Human Rights against the Republic of Moldova and the corresponding reports of the Committee of Ministers from 1997 through 2014. In addition, I interviewed more than 25 lawyers, judges, and human rights advocates. After analyzing the effectiveness of the Court in terms of compliance with the judgments in specific cases (individual measures), I will assess the broader impact of these decisions (general measures) on legal reforms and public policy in the Republic of Moldova. I will evaluate the effectiveness of the decisions of the ECtHR in the context of the implementation of Moldova’s Justice Sector Reform Strategy (2011-2015), the Council of Europe’s Action Plan to Support Democratic Reforms in the Republic of Moldova (2013-2016), and Moldova’s National Human Rights Action Plan (2011-2014). My findings will offer insights into the constraints faced by the ECtHR in implementing its decisions and the impact of the ECtHR on national legal systems.

Међународноправни аспект ратних злочина Аустроугарске, Немачке, Бугарске и Турске у Првом светском рату који су извршени над Србима

Author(s): Jelena Đ. Lopičić Jančić / Language(s): Serbian Issue: 1-2/2015

This work deals with international legal aspect of the small part of the massive war crimes that were committed by arm forces of Austria-Hungary, Germany, Bulgaria and Turkey during the First World War against Serbian civilian population, prisoners of war, the wounded and sick. These war crimes were committed in Serbia, Montenegro and Bosnia-Herzegovina as well as in the concentration camps in Austria-Hungary, Bulgaria and Turkey. Austria, Germany, Bulgaria and Turkey on daily basis severely violated existing international Convention on the Laws and Customs of War on Land (Hague IV 1907), Rules on Laws and Customs of War on Land from 1907 as well as customary international law of war, although listed countries were signatories to the said Convention and Rules from 1907 and were obliged to adhere to and implement the same. This article is a modest contribution to refute the attempts of revision of the responsibilities of the defeated Central Powers Austria, Germany, Hungary and Turkey in the First World War their aggression, occupation of Serbia and the massive war crimes, as well as all attempts to shift the responsibility on Serbia and Russia.

GLOBALIZATION AND GENOCIDALISM: FICTIONAL DISCOURSE WITHOUT BORDERS (FOR FUN AND PROFIT)

Author(s): Tiphaine L. Dickson,Aleksandar Jokić / Language(s): English Issue: 3/2006

In this essay we explore the relationship between globalization and genocidalism. “Globalization” is understood as “freedom and ability of individuals and firms to initiate voluntary economic transactions with residents of other countries,” while “genocidalism” is defined as “(i) the purposeful neglect to attribute responsibility for genocide in cases when overwhelming evidence exists, and as (ii) the energetic attributions of “genocide” in less then clear cases without considering available and convincing opposing evidence and argumentation.” The hypothesis that we defend here as explanatory of globalization’s “surprising” failure to live up to its often repeated theoretical promise that it is not a “zero-sum game,” is that this apparent failure is a result of the impact of the sole super-power’s global politics. These policies are manifested through an open onslaught on the notion of state sovereignty (impacting the sovereignty of virtually all countries except that of the U.S.), and an aggressive promotion of all kinds of interventionism, in particular armed (“humanitarian”) intervention.

Udruženi zločinački poduhvat kroz teoriju i praksu MKSJ

Author(s): Meldijana Arnaut-Haseljić,Sabina Subašić-Galijatović / Language(s): Bosnian Issue: 2/2018

Recent judgements delivered by the International Criminal Tribunal for the former Yugoslavia (ICTY) in relation to Ratko Mladić and Prilić et al. confirmed the facts that prove the existence of joint criminal enterprises committed in Bosnia and Herzegovina from 1992 to 1995/6. In the first case, the JCE included persons from political life, military, police and civil authorities of the RS, whereas the second case included the highest-ranking officials of the so-called „Herceg-Bosna‟ as well as the Republic of Croatia, including Franjo Tuđman, Gojko Sušak and others. Relevance of the topic imposes the need for a theoretical and practical interpretation of the joint criminal enterprise as a form of criminal responsibility which, as such, was defined for the first time in history in cases before the ICTY.

Trgovina ljudima – komparativna studija prava i zakonodavnih mjera Kraljevine Saudijske Arabije i Bosne i Hercegovine

Author(s): Turki Eid A. AlBaqami / Language(s): Bosnian Issue: 2/2018

This research compares approaches in the fight against international human trafficking in Bosnia and Herzegovina and the Kingdom of Saudi Arabia. Using a comparative method, variables of prevention, protection, criminal prosecution, and sanction are analysed, and, as a result of the comparison, the key points in resolving legal shortcomings present in the Bosnian and Saudi legal framework for the fight against human trafficking are identified. The paper is divided into three parts. The first part portrays the general concept and theoretical overview of the problem of human trafficking. The second part introduces measures against human trafficking in accordance with the international law with the focus on prevention, criminal prosecution, and protection of victims. Finally, in the third part, laws and other measures adopted by Bosnia and Herzegovina and Saudi Arabia in their fight against human trafficking are presented and compared.

Ratifikacija Haške konvencije o sporazumima o izboru nadležnog suda iz 2005. godine od strane Sjedinjenih Američkih Država

Author(s): Adis Poljić / Language(s): Bosnian Issue: 2/2018

The paper analyzes the position of the United States of America in relation to the Hague Convention on Choice of Court Agreements of 2005. The reason for this analysis is the significance and influence of the United States in the world. It is also interesting that the initiator for the adoption of the Convention did not ratify it. It is generally accepted that the United States should ratify the Convention, but it is controversial in that way because the United States does not have bilateral or multilateral instruments in the area of the Hague Convention on Choice of Court Agreements of 2005. There are several reasons for non-ratification, but the main issue is the level at which it will be ratified. For non-US customers it is particularly important to avoid the use of the forum non conveniens institute, which the Convention allows. There would also be a change in the status of the contracted exclusive international jurisdiction. Namely, in the United States, there is no assumption that exclusive jurisdiction has been contracted, and the prorogation agreement does not presuppose exclusive jurisdiction unless expressly agreed.

Насиље над женама

Author(s): Dragoljub Reljić / Language(s): Serbian Issue: 1/2013

For a long time it has been thought that violence against women was a private affair of each individual. Influenced by many human rights movements, intellectuals, scientists, the notion has ripened that violence against women can not be a private matter of the individual and that it must be reacted to. In the 1980s the issue of violence against women and domestic violence began to gain in its importance, primarily through adoption of international conventions at an international level. By ratifying the Convention, our country too assumed an obligation to adhere to it. However, the awareness in our society of violence against women is still at a very low level. All levels of government and the media do not address this issue adequately. Problem of violence against women in our area have long been pointed at by non-governmental organizations which have significantly contributed to the adoption of the Law on Protection from Domestic Violence, Family Law and the Law on Gender Equality in BiH and a variety of the strategies and plans. We can say that the area of protecting women from domestic violence has gone into completely opposite extreme. Contrary to strictly "private" things victims now have the deafening noise of various institutions, organizations and individuals, but this noise lacks action. Conventions, laws, strategies, declarations, plans, programs, newspaper clippings, all the vio-lence and in all places, and we are still witnessing increasing violence against women. If we want to provide protection for the victims, we must start creating conditions for the prevention of any form of violence against women. A lot of resources are invested in the identification of domestic violence, but this does not prevent violence. And after all measures being taken, including placement in a safe house, the victim eventually returnes to the abuser. So, the only real protection is prevention. The legislature should in the future consider other ways to protect women. If we are to look for solutions in comparative law, a good examples can be found in Austrian and Slovenian law. However, we should not have such legal arrangements directly applied in Bosnia and Herzegovina, but should only use them as a starting point for future legislation concerned with the protection of victims of violence. The police, prosecution, social work, scientific community should act in a coordinated intensive treatment to protect women from violence. We believe that lawyers, legal community and public should pay more attention to the issue of violence against women. This complex subject has been explored extensively by sociologists, psychologistsl and economists, while it legal aspect remained quite neglected.

Book Review: Nicolas Badalassi and Sarah B. Snyder (edited by), The CSCE and the End of the Cold War. Diplomacy, Societies and Human Rights. 1972-1990. New York, Oxford: Berghahn, 2019.

Author(s): Paul Popa / Language(s): English Issue: 1/2019

HRONOLOGIJA SUDSKOG PROCESA RADOVANU KARADŽIĆU ZA ZLOČIN GENOCIDA U SREBRENICI I OSTALE ZLOČINE

Author(s): Dževad Mahmutović / Language(s): Bosnian Issue: 8/2019

This paper brings the chronology of the trial, during which RadovanKaradžić was convicted, as the highest-ranking person in the territory of the former Yugoslavia. He was convicted of genocide in the Srebrenica area in 1995 and for persecution, extermination, murder, deportation, inhumane acts (forcible transfer), terrorism, unlawful attacks on civilians and taking of hostages by participating in four joint criminal enterprises (JCEs).The chronology was made based on official documents of the International Criminal Tribunal for the former Yugoslavia (ICTY) and completed with the Appeal Judgment Summary by the Appeals Chamber, in the proceedings against Radovan Karadžić.The sentence of life imprisonment imposed on him is a message to everyone that war crimes are not tolerated, and the extensive evidence in thiscase and the facts contained therein are particularly important for establishing the truth about the events in BiH, and deserve this and many other, different analysis.

ТРУДОВА МИГРАЦИЯ

Author(s): Ganeta Minkova / Language(s): Bulgarian Issue: 1/2019

The aim of the report is to focus on the deepening work processes in another country that requires research on labor migration. Although Bulgarian legislation uses the terms „labor mobility” and „labor migration”, there is lack of scientific analysis of these law terms. On the one hand, nationals of one Member State are not migrants in another Member State because of the principle of free movement and residence. These nationals have all labor rights that Bulgarian citizens have. On the other hand, third-country nationals are considered as migrants and face some special requirements when they choose to work in Bulgaria. At present, such differences are not overcome by international and European law.

КОНСТИТУЦИОННОПРАВНИ АСПЕКТИ НА ТРАНСПОНИРАНЕТО НА ЧЛЕН 23 ОТ ДИРЕКТИВА 2013/32/ЕС НА EВРОПЕЙСКИЯ ПАРЛАМЕНТ И НА СЪВЕТА В РЕПУБЛИКА СЛОВАКИЯ

Author(s): Soňa Košičiarová / Language(s): Bulgarian Issue: 1/2019

Author pays her attention to the particularities of the asylum procedure, especially to the security aspect, which has to be taken into account, when assessing the applicant's person in deciding his/her application for international protection. The administrative body has to obtain information from the intelligence services and, on the basis of their opinion, decide on the application in question.Member States may make an exception where disclosure of information or sources would jeopardize national security, the security of the organizations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications for international protection by the competent authorities of the Member States or the international relations of the Member States would be compromised. The method of transposing this exception into the Asylum Act has become the subject of the case at the Constitutional Court of the Slovak Republic.

ПРОМЕНИТЕ В ЗАКОНОДАТЕЛСТВОТО И ПРАКТИКАТА ПО ОТНОШЕНИЕ НА ЕКСПУЛСИРАНЕТО НА ЧУЖДЕНЦИ СЛЕД ДЕЛОТО Al Nashif v. Bulgaria

Author(s): Svetla Margaritova-Vuchkova / Language(s): Bulgarian Issue: 1/2019

This report pinpoints the serious issues that are related to the process of migration and the risks of terrorist attacks. It maintains that there should be put an equal effort into achieving two of the main goals. These include protecting the national security and public order watch- on the one hand, and the protection of human rights - on the other. In doing so there must be avoided any act of violation against the human rights.The particular judicial case, the decision of which was delivered in 2002, has significance not only for Bulgaria but also for the other European countries because the European Court established a loop in the Bulgarian law.In the following years after the decision has been rendered, the Bulgarian legislation was reformed and the opportunity for judicial review of the administrative acts for expulsion was provided.

Islamo teisė Vakar uose: Graikijos atvejis ir Strasbūro teismo sprendimo Molla Sali prieš Graikiją analizė

Author(s): Juozas Valčiukas / Language(s): Lithuanian Issue: 99/2019

The case of Greek law reflects nothing but a fact of coexistance between Western and Islamic law traditions. Domestic law in Greece, which contains a set of Islamic legal norms whereby Muslims living in the particular regions of Greece settle their legal disputes, proves this statement. This feature of Greek law has long made it unique in Europe. Something however, has recently changed in the Greek legal regulation what made the mentioned uniquiness different. In 2018, the mentioned Greek legal regulation which has been a result of historical circumstances and international legal agreements signed in XIX and XX centuries underwent a test. A complaint delivered to the European Court of Human Rights by a Greek Muslim living in the Greek region of Thrace created the test. More precisely, Greek legal instructions whereby local Muslims are obliged to deal with their inheritance issues through Islamic legal norms written into Greek law were questioned in the case Molla Sali vs. Greece. It was argued that the obligation is in clear contradiction with European Convention and denies the fundamental Western principle of freedom of choice. The main purpose of this article is to analyse the Molla Sali judgment issued by the European Court of Human Rights in December, 2018. In the first part of the article, international law agreements in which Islamic legal norms came to be a part of Greek national law are investigated. Further, the article takes into consideration the current Greek national legal regulation and its most recent developments. Third, the article analyses the Molla Sali judgment by discussing its facts and legal arguments delivered by the Court of Strasbourg. The article ends with a number of concluding remarks.