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In Octоber 2010 a public hearing was held at the Constitutional Court of the Republic of Serbia on the constitutionality of the Act on churches and religious communities. In the present contribution, prepared for that hearing, right to freedom of religion, prohibition of religious discrimination and the principle of secular state, as guaranteed by the 2006 Constitution of the Republic of Serbia, are considered. Analyzing the content of the given rights and principles in the light of the case-law of the European Court of Human Rights and of comparative law, and applying the normative and historical method of interpretation, the author concludes that certain provisions of the Act on churches and religious communities are incompatible with the Constitution of the Republic of Serbia and the European Convention on Human Rights
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In this text author analyzed a procedure of making legitimation basis and making basic institutional solutions in the Constitution of the Republic of Serbia (2006). The Constitution has been adopted owing it to a conjunction of political circumstances, caused by an agreement of political parties, thus influencing the way of its making as well as the quality of its constitutional solutions. Through comparison of this Constitution with its predecessor-Constitution of 1990, the author came to conclusion that it is not a new basic legal constitution, but it is a more modified and re- designed old Constitution. As such, it does not create possibility for building of a political community with fundamental democratic principles and values.
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The resent importance of this topic is determined by the requirements of the Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters towards the member states concerning the transposition of its provisions on international cases within specified term. The ultimate goal is to provide better access to justice as part of the EU policies for establishing an area of freedom, security and justice which should include access to both judicial and extrajudicial methods of dispute resolution. Successful use of mediation in insolvency proceedings as part of commercial cases is predetermined by the objectives set in art. 607 of the Commercial Code: fair compensation for the creditors and the possibility of recovery of the debtor. Mediation can be used successfully in different stages of the insolvency proceedings: submitting claims, decisions of the creditors committee, confirming a recovery plan, reaching an out-of-court agreement, etc. Without a doubt one of the most efficient uses of mediation is at the stages of drafting, proposing and confirming a recovery plan when the mediator acts as a third party – impartial and neutral figure, which can balance the interests of creditors and debtor. Mediation and other extrajudicial methods of dispute resolution are important tools in deciding civil and commercial cases the United States and many European countries. The ever growing number of international insolvency cases led to the adoption of the Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings.
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Applying contemporary devices for audio and visual observation and recording in the criminal proceedings may be considered from various aspects. Since the application of techical devices in recording procedural acts in the preliminary proceedings and at the trial itself raise no great legal problems, this article is primarily dedicated to the analysis of the situation in the pretrial proceedings. Important for assessing the adequacy of specific legal instruments to provede complete protection of citizens against any violation of their privacy are the provisions of the law of procedure and those covering the activities of the interior affairs the implementation of eavesdropping and secret observation devices, and using such information as evidence in the criminal proceedings. The state of affairs in the above respect is not satisfactory as it should be, and there still are no adequate prerequisites necessary for establishing a regime of total legal security. Namely, although newest amendments to the Las on Criminal Procedure include just provisions concerning the application of some instruments apt to effect supervision and technical recording of telephone and other kind of conversation, the sphere of secret application of devices for visual observation, photographic and video recording has remained unregulated by law. In addition, the existing system of out - of - procedure authorities and powers is not adequate, since it enables the interior affairs agencies to decide in an independent way on whether the interest of discovering a criminal offence and obtaining the relevant evidence justifies the infringement into the private sphere of the citizen by applying the above mentioned devices.
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The European human rights system has much wider achievements in relation to the national legal systems of European countries. The system must be considered in a given time and the spatial context. In the first case it should be considered under the framework of the European Convention, while in the second case, it ought to ensure applicability in all European countries. Since it was made back in 1950, the European Convention is a comprehensive legal instrument and reliable framework for the development of national legal systems in the field of human rights. The European Convention is a starting point in the analysis of progress in the field of standardization, promotion and protection of human rights. Taking into account the common geographical area and historical circumstances of the relations between the successor states of the former Yugoslavia, the authors will focus on the legal analyses of the incorporated system of human rights in the Republic of Serbia and the Republic of Srpska, with special emphasis on the constitutional and legal provisions.
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This paper explores universal international standards in the area of forced eviction. Тhe author presents the UN instruments that guarantee the right to housing, and the relevant practice of the UN committees. According to this practice, the authority which decides on the eviction must assess whether, in any particular case, the principle of legality and the principle of proportionality are met. While the legality means compliance with the law, proportionality implies respect for a number of procedural requirements, which are reflected in the timely notification of planned measures, holding of consultations with the population affected by the measure, the safeguard of an adequate legal remedy, compensation for damaged property and the provision of alternative accommodation. Also, the most vulnerable groups in society deserve a special care, meaning a careful planning and respect for their human rights.
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This material is about definition of the principle of equality with account of specificity of criminal law relations, also that the principle of equality cannot be realized in the conditions of politically conflict criminal law regulation, deformation of professional legal consciousness, excessive freedom of the judicial discretion.
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The law of modern Ukraine has its origins in common law and princely legislation, judicial practice in Kievan Rus. In Russian Truth, begun by Yaroslav the Wise, these sources of law allowed the legislator to formulate in the first domestic code the rules that regulated new public relations in the Old Russian(ancient Ukrainian) state, restricted pagan customs, and improved the criminal and civil-procedural form of the judicial process. “Pravda” in Russia was understood as law, justice.In the article, the author shows the importance of legal traditions, institutions, principles, laid down by the Russian Truth. So, with the expansion of the scope of private law, the role of the legal entity in the field of civil relations is growing. The ancient Russian and modern legislators equally consider protecting human life the most important task, it seems to take into account the objective side of the crime, follow the principles of the rule of law and the rule of law. True, Yaroslav excluded the death penalty from the list of punishments by the princely court, determined the aggravating circumstances of the crime, enshrined the principle of inviolability of the person, provided for the protection of personal and property human rights.An appeal to the Russian Truth reveals national traditions in legal understanding, the foundations of humanism in law-making and law enforcement, and continuity in the legal system of Ukraine.
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The juvenile system is a form of ensuring the rights of children. The practical implementation of many of the foundations of the functioning and development of the juvenile justice system is related to public administration, the internal systemic administrative activities of the judiciary, the prosecutor’s office,preliminary investigation bodies, the human rights ombudsman, and the introduction and development of non-criminal measures against minor delinquents. At the same time, the principles of public administration and other manifestations of administrative and legal activity in the field of juvenile justice, which provide a significant part of its functioning, remain beyond the due attention of scientists.This article focuses on the principles of the institution of juvenile justice at the level of a separate branch of law (administrative). In the context of the system of principles of juvenile justice (general and special), a definition is presented, as well as the place of the principles of administrative and legal support and their relationship with other groups of principles. General principles lay ideas common to all legal relations, which are then reflected in special principles. The principles of administrative and legal support for the functioning and development of juvenile justice are referred to the group of special (concrete-functional and (or) specific)foundations. These principles inherit the basic features inherent in the principles of administrative law and are determined by the axiology of this branch of law.Summarizing the results of a number of administrative and legal studies, a list of principles of administrative and legal support for the functioning and development of the juvenile justice system is given, which are divided into three groups: 1) organizational and security principles, 2) functional principles; 3) administrative jurisdictional principles.
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The principle of personal dignity and rights equality takes a central place among the fundamental rights guaranteed by the Constitution of the Republic of Bulgaria. This principle must also be applicable in one of the most delicate hypotheses - when establishing the origin of a father.
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The analysis deals with two decisions of the CJEU adjudicated in 2014 and 2015. The issues presented in them pertain to the principle of institutional balance in the procedures for concluding international agreements between the EU and third countries or international organisations under art. 218 of the TFEU.
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When it comes to the EU accession to the Convention for the Protection of Human Rights and Fundamental Freedoms the article examines to what extent changes introduced under the Treaty of Lisbon do constitute an adequate legal basis for creating a coherent and consistent human rights protection system in Europe. Within that context, a particular emphasis has been placed on a critical analysis of the recently published Draft Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms. Although the accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms has been intensively discussed for over thirty years, this issue again gains prominence as the ongoing accession process brings up complex difficulties involved in creating an adequate mechanism.
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This paper deals with the importance of the EU accession to the ECHR, as the most significant regional instrument for human rights protection. The paper outlines the evolution of the idea of the accession to the ECHR, different stages of that process, as well as a Draft agreement which attempted to resolve some complex legal issues relating to the specific nature of the EU legal system. In the second part of this paper, the Opinion 2/13 of the CJEU from December 2014 has been analyzed, which basically interrupted the entire accession process. It is noted that currently the ECtHR has only an indirect constitutional control over the EU’s legal order by examining laws of the Member States. The EU accession to the ECHR would allow examination of all acts and measures in the EU from the human rights perspective, including those over which the CJEU does not have full oversight function.
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Accessibility of audiovisual content for people with disabilities is strongly related to the right of freedom of opinion and expression, right to the equal treatment and the right to freedom from discrimination. UN, Council of Europe and the European Union regulate the issue of accessibility, including the accessibility of information and communication technology, ICT, by a number of documents − conventions, charters, directives, etc. However, the most important international instrument stressing this issue in the context of human rights is the UN Convention on the Rights of Persons with Disabilities. Enormous developments in the field of ICT open up a large scope of opportunities for persons with disabilities to have barrier-free access to the audiovisual content. Among other things, digital distribution should make the audiovisual content fully accessible to all. The legal framework of the Republic of Serbia regulating this issue in general is in line with European standards, however, the percentage of fully accessible audiovisual content is far below acceptable in Europe. Stronger obligations for private and public broadcasters to provide fully accessible media content, the introduction of quotas, giving new and more binding powers to telecom and media regulatory body, etc., are some of the ideas that, applied in Europe, had generated much better situation in the audiovisual area for people with sensory impairments. Without redefined and more binding obligations of broadcasters, without larger powers of regulatory bodies, which would mean the possibility of introducing sanctions for certain actions or lack of action of both public and private media services, at this level of social responsibility awareness, media service providers can always refer to the lack of technical and financial capacities in their response why they did not provide accessible content in their programs. Hence, only with great optimism it can be expected that audiovisual area in Serbia in the near future will be barrier-free in a more significant extent in order to finally achieve the goal of audiovisual world accessible to all.
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Accessible physical environment and accessible public transport are preconditions for liberty of movement of persons with disabilities. Rule 5 of the UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, as well as Article 9 of the UN Convention on the Rights of Persons with Disabilities, prescribe that the states should recognize the importance of accessibility in the process of the equalization of opportunities, introduce programs of action to make the physical environment accessible; and undertake measures to provide access to information and communication. The Constitution of the Republic of Serbia prohibits discrimination on grounds of physical and intellectual disability and guarantees liberty of movement. The Law on Prevention of Discrimination against Persons with Disabilities of the Republic of Serbia prescribes that denial of access to persons with disabilities to objects of public interest, public spaces, public transport and services opened to the public constitute illegal acts of discrimination. The Law on Urban Planning and Construction orders mandatory application of accessibility standards in planning and construction of all new public buildings and housing facilities, and imposes fines to investors that fail to comply with the standards.
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The paper analyzes the admissibility criteria of an individual application submitted to the European Court of Human Rights. It also contains the analysis of an important protection mechanism instituted by the Council of Europe. Since almost 90 percent of applications are being rejected, the topic of particular admissibility criteria and the way they are being interpreted by the Court is of essential importance for every applicant. In relation to that topic, the author puts forward an analysis of standards instituted for the purpose of anonymity and of applications that are manifestly ill-founded or substantially the same. The analysis concerns also the cases in which applications are incompatible with The European Convention for The Protection of Human Rights and Fundamental Freedoms as well as the cases in which applications have not been submitted within six months. The author also focused on the innovations introduced by the ratification of the Protocol no. 14, for example, the new standard of admissibility that allows the Court to evaluate whether the applicant had suffered a significant disadvantage. The paper also presents an interpretation of restrictions imposed on admissibility criteria as a consequence of ratification of Protocol no. 15.
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In order to apply Art. 41 of European Convention on Human Rights and Fundamental Freedoms (hereinafter – ECHR, Convention) the European Court of Human Rights (hereinafter – the ECtHR) has to establish the causal connection between the violation of the Convention and the alleged damage. Though the ECtHR does not explain in much detail its considerations on the causation in each particular case, there is no doubt that the ECtHR uses ‘but for’ test. However the application of the ‘but for’ test is quite a complex task when it comes to cases concerning violations of procedural guaranties.In this respect one has to distinguish direct consequences of particular procedural violation, on the one hand, and overall consequences of the proceedings (within which the violation took place), on the other. Non-pecuniary damage (distress, frustration, helplessness) is a direct consequence of the violation. Such a damage is presumed to be suffered in each case. As to the overall consequences of the proceedings several approaches might be followed. First one is ‘all or nothing’ approach, where the burden of proof lies on the applicant: the latter has to prove that but for the violation of ECHR, the overall result of the proceedings would have been different (more favorable to him). Combined with a particularly high standard of proof this approach results in dismissal of claims for damages in vast majority of cases. Second approach may be explained by different theoretical doctrines (alternative causes, loss of chance, reconceptualization of damage). The main idea, however, remains the same: the amount of compensation has to be diminished in accordance with the probability that the outcome of the proceedings would have been different but for the violation of the ECHR.The third approach, that the author advocates, consists in reversing the burden of proof. Whenever the applicant has proven the violation of the ECHR and it is established that the ‘proceedings as a whole’ were unfair, it is the respondent State that has to prove that the violation committed made no difference to the general outcome of the proceedings.
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The article analyzes the legal guarantees to ensure the rights of minors to personal security in prisons, by theoretical and applied problems relating to their content, and developed science based proposals for solving them on the merits.
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