Serbian migration policy concerning irregular migration and asylum in the context of the EU integration process

Author(s): Marta Stojić Mitrović / Language(s): English Issue: 4/2014

In this paper I would like to present Serbian migration policy concerning irregular migration and asylum in the context of the attempts of the Serbian state to become a member of the European Union. I would describe the history of the asylum system prior and after the implementation of the independent asylum system in Serbia in 2008. My presentation of the Serbian migration policy would be channelled by the analysis of some particular political issues, such as the externalization of the EU borders’ control, as well as some relevant elements of the European integration process, like visa liberalization. The second, more culturally specific dimension of the issue would be accessed through the demonstration of both legislative and public conceptualizations of the irregular migrants, asylum seekers and refugees in Serbia.

Human rights infringement against contemporary legal practice in several criminal cases

Author(s): Katarzyna Rydz-Sybilak / Language(s): English Issue: 77/2016

Issues connected with protection against tortures or other forms of inhuman or degrading treatment are regulated in the European law not only in The Convention for the Protection of Human Rights and Fundamental Freedoms, but also in The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by The Committee of Ministers of the Council of Europe on June 26, 1987 and later ratified by all 47 countries of The Council of Europe. It is a key element in amending the control system. It has been agreed that the system based on individual and international pleas should be supported by preventive measures. Various situations in which the state has serious obligations so as to protect art. 3 of the Convention, take place following criminal proceedings by organs entitled to act according to legislation. It ought to be mentioned that despite our country’s ratification of the above mentioned legal acts, while conducting pre-trial proceedings in criminal cases, the violation of basic human rights and inhumane treatment of the suspects or the accused happen the most often. The state is responsible for securing proper conditions that would grant respect for one’s dignity and the procedures and methods of obtaining incriminating evidence are not to cause suffering whose scale and intensity would surpass needs of personal security of the accused or suspects during the proceedings in criminal trials, with respect to the legal procedures regulating the arrest and the use of preventative measures in form of a detention order

Klauzula dobra dziecka w konwencji o prawach dziecka i w prawie polskim

Author(s): Karolina Mendecka / Language(s): Polish Issue: 77/2016

Children’s rights are one of the most important and challenging international and national regulations. The Convention on the Rights of the Child as well as the Polish law explicitly stipulate that the best interest of the child has to be taken as primary consideration. The scope of this principle is defined mainly by the judicatory and the doctrine. The best interest of the child principle is not only primary, but should be superior to other interests and principles. Where a conflict of interests arises, the child’s best interest should always be a priority. This article elaborates on the condition of children’s rights in Poland, with particular reference to the best interest of the child principle in the light of the Convention on the Rights of the Child and of the Polish legal system.

Međunarodna i privremena zaštita (azil i supsidijarna zaštita) u Republici Hrvatskoj

Author(s): Tamara Bogdanović / Language(s): Bosnian,Croatian,Serbian Issue: 26/2016

Novi Zakon o međunarodnoj i privremenoj zaštiti u primjeni je više od godinu dana, a kontrola zakonitosti rada uprave u azilnim predmetima provodi se od 1. siječnja 2012. pred četiri prvostupanjska upravna suda i pred Visokim upravnim sudom Republike Hrvatske. Od tog datuma provođenje rasprave pred prvostupanjskim sudom je pravilo, a ne iznimka, dok općenito provođenje i način specijalizacije u pojedinim vrstama predmeta nije ujednačen na svim sudovima, jer to ovisi o broju sudaca i načinu unutarnje organizacije svakog suda.

Specijalizacija sudija Upravnog suda u materiji azila - uvođenje specijalizovanih veća kao faktor unapređenja efikasnosti

Author(s): Bojana Todorović / Language(s): Bosnian,Croatian,Serbian Issue: 26/2016

Uprkos tome što nosi epitet zemlje tranzita, Srbija se od početka migrantske krize do danas suočila sa drastičnim povećanjem podnetih zahteva za azil. Ova činjenica, kao i proces evropskih integracija, uslovili su potrebu za unapređenjem sistema azila i njegovim usklađivanjem sa evropskim standardima, kako na normativnom nivou, tako i u pogledu prakse nadležnih organa. U relevantnim izveštajima o stanju sistema azila u Srbiji, ističe se da je postojeći normativni okvir “u velikoj meri” u skladu sa pravilima i standardima međunarodnog prava u ovoj oblasti. Međutim, prostor za napredak svakako postoji, a budući da je materija azila predmet pregovaračkog Poglavlja 24 — Pravda, sloboda i bezbednost, usaglašavanje nacionalnih propisa sa pravnim tekovinama Evropske unije (EU) smatra se imperativnim.

W obronie bezpośredniego horyzontalnego obowiązywania praw człowieka

Author(s): Bartosz Skwara / Language(s): Polish Issue: 1/2017

Third party effect of human rights is a topic of interest to legal scholars, who analize the question notonly in the context of legal systems of European countries. Scientific research has not settled the questionof possible qualifi cation of current practice to one of the known theoretical concepts: theories ofthe direct and indirect third party effect, protective duties of the State and interceding third party effect.Nevertheless, many authors — considering the order to protect human dignity as the source ofhorizontal validity of fundamental rights — claim, that the third party effect will eventually turn outto be direct, horizontal validity of human rights or, at least, that it cannot be limited only to the infl uencethat human rights have on interpretation of civil general clauses and indeterminate collocations.Despite that, the majority of handbooks on human rights accept only the concept of the limited thirdparty effect (the theory of the indirect third party effect), what raises doubt.

International and European Law in the Polish Legal System

Author(s): Bogusław Banaszak,Andrzej Szmyt / Language(s): English Issue: XXXVI/2016

Shari'a and Human Rights, the Challenges Ahead

Author(s): Abdulkadir Mubarak / Language(s): English Issue: 1/2013

There are some people among the non-Muslims and even the Muslims who spread confusion that the concept of human rights is alien to Shari’a (Islamic law) and it has no place in the provisions of the holy Qur’an (the main source of the Shari'a). The critics of Shari'a have used Universal Declaration of Human Rights (UDHR) as the standard through which Shari'a is evaluated and faulted. The basic concept of Shari'a in regard to the human rights is based upon equality, dignity and respect for humankind. As is clear from verses of the Holy Qur’an, Allah Almighty has endowed on human beings the status of being superior to all other creations. The holy Qur’an has described the position enjoyed by human beings in great detail that at the time of creation of Adam, Allah Almighty enjoined upon the angels to bow before Adam. It was for the first time in the history of mankind that Islam did away with all biases and discriminations on the basis of wealth, clan and tribe, language, sex, colour and caste etc. It termed all human beings equal in status whether one is poor or rich, black or white, woman or man or whether one belongs to this or that region or race.

Multikulturalna kritika liberalnog univerzalizma i odbrana manjinskih prava

Author(s): Elma Huruz Memović / Language(s): Bosnian Issue: 3/2014

Liberal theorists attitudes about rights of minority cultures have been very different so far. The main point of dispute between the egalitarian liberals and multiculturalists is the role of government in protecting minority communities. While one group of theorists argued that the liberal commitment to universal rights and the concept of universal citizenship excludes acceptance of group - differentiated rights, others have expressed their willingness to accept the legal recognition of minority cultures and their rights. Modern liberal theory holds that the state must comply with the principle of neutrality by ignoring all differences among citizens, including individual, national and religious affiliation, economic status, etc. Model of civic nationality (citizenship) should contribute to it, which implies the right and duty of citizens to assume the same rights and obligations in relation to the state. Some of the questions that we’ll open in this text are: how does the recognition of the rights of minorities and securing group-differentiated rights may affect the virtues and practices of democratic citizenship? Could the recognition of minority communities undermine the unity and stability of the wider political community?

Legitymacja Rzecznika Praw Obywatelskich do wniesienia skargi do sądu administracyjnego

Author(s): Paweł Górecki / Language(s): Polish Issue: 07/2015

The Ombudsman is an institution established to protect the rights and freedoms of man and citizen covered by both the Organic Law and other normative acts. Protection of fundamental rights is conducted, among others on the plane of administrative court proceedings.

Postępowanie w przedmiocie odpowiedzialności zawodowej lekarzy w świetle orzecznictwa NSL z 2016 r.

Author(s): Jędrzej Skrzypczak / Language(s): Polish Issue: 8/2016

Although decisions of medical courts do not constitute, in our legal system, judicial precedents,and thereby do not create a new legal norm but merely a pragmatic interpretation of particularlegal provisions – then, in the light of Art. 76 of the Code of Medical Ethics, in cases not provided for in the Code – the principles reflected and resulting from jurisdiction of medical courts should take precedence. Hence, the views and arguments featured in the reasons for the sentences of the Supreme Medical Court, are of indeed great importance to the functioning of medical courts. Therefore the need for publication of the latter Court’s selected decisions israther self-evident, and that – at least to some extent – is precisely the aim of the present article,which comprises assorted sentences of the Supreme Medical Court in 2016.

Przegląd orzecznictwa Europejskiego Trybunału Praw Człowieka wydanego przeciwko Polsce w sprawach z aspektem medycznym w 2016 roku

Author(s): Magdalena Zamroczyńska / Language(s): Polish Issue: 8/2016

The European Court of Human Rights was established in 1959 for the purpose of examining individual complaints and international cases. The ECtHR ascertains the infringement ofrights and freedoms on the basis of the Convention for the Protection of Human Rights andFundamental Freedoms. The Convention provides uniform principles and standards in the field of human rights while ECtHR judgments may provide arguments to introduce amendments in legislature and in practice. The paper presents selected verdicts issued by the ECtHR against Poland in 2016 in the cases involving medical issues.

Sprawozdanie Naczelnego Rzecznika Odpowiedzialności Zawodowej za 2016 r.

Author(s): Grzegorz Wrona / Language(s): Polish Issue: 8/2016

The paper presents statistics showing the work of the Supreme Screener for Professional Liability in 2016.

Uzasadnienie dynamicznej wykładni Konwencji o ochronie praw człowieka i podstawowych wolności — pytania krytyczne

Author(s): Paweł Łącki / Language(s): Polish Issue: 2/2017

In the light of the case law of the European Court of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms is a living instrument “which must be interpreted in the light of present-day conditions”. The basic purpose of the article is an attempt to address critical questions about some of the standard arguments for the legitimacy of the evolutive interpretation of the Convention. The author claims that although the Court’s approach to the Convention as a „living instrument” is fi rmly rooted in its case law and legal theory, an adequate justifi cation for such an approach is still an open question and is considered as an open theoretical issue. The article consists of two parts. In the fi rst part the author briefl y describes the essential elements of treating the Convention as a living instrument, and illustrates, on the example of selected Court’s judgments, the manner in which this idea is applied in practice, i.e. the legal (judicial) reasoning refl ecting such an approach. In the second part, after pointing out the specifi c context in which the legitimacy of the dynamic interpretation of the Convention can be considered, he identifi es and critically examines a number of arguments raised in support of for this interpretation both in the legal theory and in the case-law of the Court.

Osiguravanje sigurnosti i ostvarivanje ljudskih prava kao temeljna zadaća moderne ustavne države sa osvrtom na njemački ustavnopravni poredak

Author(s): Boštjan Tratar / Language(s): Bosnian,Croatian,Serbian Issue: 2/2016

The author in article discusses the conception of security as a fundamental human need and collective good and/or the recquirement for universal/comprehensive provision of protection of human rights by the state. The conception of security comprises nowadays different spheres of life (economy, technics/technology, domestic and foreign policy etc.) and doesn›t mean a certain real situation in the society at the present moment but (only) the normative goal of the state (ie. ideal) to which the state stroves within the framework of allowed possibilities (within the framework of legality and legitimacy).There is a great debate in constitutional discussions on a changed need for security and/or the enlarged conception of security, especially since the attack on World Trade Center on 11 of september 2001 in New York. The legal literature talsk about a kind of super-right – »the right to security« (German: »Grundrechtauf Sicherheit«) – as a legitimation of more rigorous safety measures. This follows especially from the papers of German theoretician of constitutional law Josef Isen-see, who has in 1982 published the treatise on the relation between the liberty and security, and who has opposed »the right to security« to s. c. »liberal doctrine of the defence of the state« (German: »liberale Staatsabwehrdoktrin«).However, the idea of »subjective right to security« hasn't reached the greater reception in German legal literature, due to objections of opponents indirection, that this would mean the desindividualisation of human rights,and that this would put the human rights in their contrast and open the way of abuses of human rights by the state.In a modern theory of constitutional law is much more emphasised that the conception of security should be understood above all as the realisation of legal goods, that are garanted by constitution (such as life, health, property, freedom, human dignity), which is the comprehensive task of every state (Staatsaufgabe), of all three branches of power of the state, that are obliged to realise it within the framework of legality and legitimacy.In German constitutional legal theory and judicature of German Federal Constitutional court prevails the s. c. doctrine of constitutional protective duties(German: »grundrechtliche Schutzpflichten«), which is the consequence of objective comprehension of human rights, which are not percieved only as defensive rights, but also as the value measures for the activity of entire power of the state (the objective dimension). At the same time the human rights request from the state the active realisation of legal goods protected by the constitution,and this not only in vertical, but also in horizontal legal relations.

Polityka wobec cudzoziemców i polityka azylowa Republiki Federalnej Niemiec

Author(s): Ewa Tuora-Schwierskott / Language(s): Polish Issue: 2/2017

Immigration law in Germany is regulated in some detail the issue of obtaining the right to stayfor refugees anticipating any possible irregularities in the process of migration and trying to counteractthem. It is not possible to obtain refugee status by a refugee who has taken action detrimentalto the host country or has committed criminal acts violating the rules of security and publicorder. Until World War II Germany was a country from which people used to emigrate,primarily to North America. Thereafter, Germany began to accept refugees as the so-called guestworkers. Now as many as 29% of the population has migrant roots. Currently, Germany is copingwith a huge stream of refugees, which, on the one hand, give rise to racist and xenophobictendencies and, on the other hand, leads to implementation of a range of initiatives to integratemigrants into society.

Teisinių kompetencijų raiška vaiko teisių apsaugos specialistų darbe

Author(s): Aušra Kazlauskienė,Asta Leonavičienė / Language(s): Lithuanian Issue: 1/2010

The carried out researches enable to state that much attention is focused on specialists’ competence. However, legal competencies of child rights protection specialists have not been sufficiently analysed both in theoretical and practical aspects. All these named facts enable to state that the analysed problem requires scientists’ insights in this area. Research aim. To analyse manifestation of legal rights in the child rights protection specialists’ work. Research method. Analysis of documents that enabled to generalise legal acts of the Republic of Lithuania, regulating protection of children’s rights, analysing manifestation of child rights protection specialists’ legal competencies. Having generalised research results, it can be stated that manifestation of child rights protection specialists’ legal rights is reflected in the analysis of the Civil Code of the Republic of Lithuania, Law on Fundamentals of Protection of the Rights of the Child of the Republic of Lithuania, other legal acts, and assessing the job description of the specialist of the service. Assessing functions provided in the child rights protection senior specialist’s activities, it can be stated that they have to carry out: the function of representation in courts (to defend children’s rights and lawful interests, to prepare and submit conclusions for courts on the issues of protection of children’s rights); the experts’ function, which enables to analyse the reasons of violations of legal acts in the area of protection of children’s rights and submit proposals regarding improvement of legal acts, draft legal acts and their changes, submit conclusions. In addition to that, the ability to recognise theoretical and practical problems in the area of protection of children’s rights and find forms and methods for solution of these problems; the function of supervision (to carry out legal supervision of documents prepared by the department); the function of the analyst (to analyse the cases analysed during the trials and submit related conclusions and proposals); the function of the informant (to provide information for concerned state and municipal institutions about violation of children’s rights and interests and about cases analysed in courts); the function of the court mediator (to collect materials and prepare claims, statements, applications, complaints for courts to carry out other procedural actions). All named functions are implemented on the basis of legal knowledge and abilities. The competencies of child rights protection specialists attributed in the Civil Code of the Republic of Lithuania encompass the following activities: offering of agreements, of applications, of claims, of conclusions, supervision, participation, organisation and coordination. All these activities are related to legal competencies. Submitting the conclusions, the specialist ensures the child’s rights if spouses live separately; any child related argument is solved. In addition, the specialist submits the conclusion regarding term less/temporary limitation of parental powers, which is based on legal documents. Submitting the applications to the court regarding establishing permanent guardianship, the child’s separation from the father (mother), disaffirmation of the child’s separation from parents, parents’ suspension from management of children’s property if parents manage the property that belongs to the child inappropriately, child rights specialists must have acquired legal competencies which determine quality work. Such competencies are necessary offering claims, participating in the processes that ensure the child’s rights, organising and coordinating children’s guardianship, care and foster parents’ readiness for guardianship.

Pojam ljudskih prava

Author(s): Boris Krivokapić / Language(s): Serbian Issue: 1/2017

The work consists of three parts. The first one deals with the term “human rights” and what is meant by it - a special concept, fundamental legally protected human rights and freedoms, specific legal solutions, what happens in practice, clearly defined human rights and freedoms that belong to specific persons i.e. groups, area of law that regulates human rights, a special subject taught in law schools, etc. After that here it is pointed out a fundamental difference between human rights and freedoms, as well as the distinction between human rights and some similar social phenomenom. In the second part, it was pointed out that human rights are a very complex social phenomenon. Accordingly, an overview of their various dimensions - philosophical, ideological, political, economic, social, educational and legal is given. The third part deals with the legal regulation as a mandatory part of human rights. Here it is emphasized that there are no human rights if they are not legally regulated and it is explained why this is so. It was pointed out that the legal regulation means that human rights are legally guaranteed, that their holders have a legal basis to request their free enjoyment and, if necessary, protection i.e. that, viewed from another angle, the obligations of the state and other entities are legal obligations, mandatory rules of conduct. In other words, non-compliance or violation of human rights is a violation of law as an objective normative order, which means that it entails legal liability. The author emphasizes that in terms of substance, when it comes to human rights, it is no longer issue of good will or discretionary assessment of respective entities, primarily states, but it is a system of legal rules of national and international law, which are intertwined and complementary.

Pre-crime kоncеpт zаkоnа о sprеčаvаnјu nаsiljа u pоrоdici - оbаvеzе držаvе i rizici pо pоvrеdu ljudskih prаvа

Author(s): Svetlana Nenadić / Language(s): Serbian Issue: 1/2017

Lawmaker correctly identified domestic violence as a generator of numerous violations of human rights and gravely problem of our society by accepting responsibility and the obligations of the state in the private sphere. However, we can ask whether the pre-crime concept, for which lawmaker decided, is good enough, for two reasons: the inherent defects of the concept and high risk of human rights violations. Pre-crime concept is in deep contradiction with the foundations of the criminal law, which necessarily produces the implications on generally accepted understanding of justice. On the other hand, there are risks of application.56 However, pre-crime concept is nothing else but state clame for „more state“.57 Limits of state power in the filed of prevention, lie in the democratic principles of the society58. In the absence of proportionality, as one of preventive justice limits,59 Law on Domestic Violence Prevention is more like risk management document, than legal act of a democratic society. By protecting one right, Law completely neglect all other rights, abstracting from the fact that rights do not exist in vacuo, but are always in mutual interdependence.

Neizvršenјe pravnosnažnih sudskih odluka kojima je dosuđena ratna šteta u Republici Srpskoj

Author(s): Jovana Kisin / Language(s): Serbian Issue: 1/2017

Failing to enforce court decision, besides the fact that is a crime according to the Criminal Code of Republic of Srpska, primarly cause tort to a person who was awarded for damages in that decision. This article deals with the issue of final and enforceable court’s decisions against Republic of Srpska, which in spite of legal and constitutional provisions, the decisions of the Constitutional Court of the Republic of Srpska, of the Constitutional Court of Bosnia and Herzegovina and of the European Court of Human Rights, continues to postpone their execution, namely doesn’t enforce such decisions concerning the pecuniary and nonpecuniary damage incurred during the war. By this approach, the injured party who has suffered pecuniary and non-pecuniary damage during the war, also suffers damages for non-fulfillment of court’s decisions, as well as damage due to violation of basic constitutional rights guaranteed by the Constitution of Bosnia and Herzegovina and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, notably the right to a fair trial and the right to property.