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ORZECZNICTWO TRYBUNAŁU PRAW CZŁOWIEKA W STRASBURGU A STANOWIENIE I STOSOWANIE PRAWA POLSKIEGO

Author(s): Joanna Stylska / Language(s): Polish Issue: 26/2015

It is essential in the implementation of the main function of constitutional rights have the right to sue, that the scope is wider than the scope of guarantee resulting from the article 6 of the ECHR and the constitutional complaint which is the means of protection entitled directly to an individual. A good example of the impact of the Human Rights Court in Polish law establishment is the issue of preliminary custody and the related problem of violations of the article 5 of the Convention. The process of operative interpretation of the European Convention on Human Rights will be of the main focus. Reveal that the validating argumentation of the operative interpretation, specifications of the decision process and the difference between the process and validation procedures in the domestic legal order, the linguistic principles of the legal interpretation, their place in the interpretation, the role of the semantic principles, the systemic principles of the legal interpretation – their place in the interpretation, the role of systemicstructural principles and systemic-axiological arguments role of the syntactic arguments and the principles of the broad and functional interpretations.

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W KIERUNKU ZWIĘKSZANIA EFEKTYWNOŚCI MECHANIZMU KONTROLNEGO EUROPEJSKIEJ KONWENCJI PRAW CZŁOWIEKA – ASPEKTY TEORETYCZNE I ORZECZNICZE

Author(s): Przemysław Pęcherczyk / Language(s): Polish Issue: 26/2015

Article presents the reform of the control mechanism of the European Convention on Human Rights carried out by the Protocol No. 14. At the start am describing motives introduction and the main assumptions of the Protocol No. 14 as the additional protocol to the European Convention on Human Rights. Then focused on Committees of three judges, which issued essential judgements on the basis of established case law of the European Court of Human Rights in Strasbourg. I deal with also question of the organization of the committees and the inspection procedure front of them. Moreover analyze the importance of the judgements of the committees in the context of the interpretation and application of the law by the courts of the Member State of the Council of Europe. The later in the article deals with the condition of admissibility of the individual complaint based on the criterion by the complainant experience significant disadvantage. Presented to here are motives for such change and controversies connected with it. The article includes a number of judgements of the Court and statistic on the activities of the European Court of Human Rights. Reliable analysis of the case-law of the Court on the issues presented allows for a better understanding this subject matter. The article concludes with evaluation of the reform of the control mechanism of the European Convention on Human Rights and to present further planned reforms. One of them is the European Union’s accession to the Council of Europe.

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PRAWNICY WŚRÓD WIKIPEDYSTÓW – PORTRET STATYSTYCZNY

Author(s): Karol Dąbrowski,Szymon Grabarczuk / Language(s): Polish Issue: 25/2014

Wikipedia is a virtual organization. It is a phenomenon of the Internet culture, which attracts millions of readers and thousands of volunteers. It is an encyclopaedia created on the basis of a free licence and its contents can be copied and modified by anyone. Some of the important rules of Wikipedia are the following: respecting encyclopaedic content, neutral point of view and verifiability of contents, i.e. basing on the sources which have been already published. One should not enter to Wikipedia theses, which have not been published before, e.g. not published outcomes of one’s own experiments or observations. There are lawyers among wikipedians, and as at 15 August 2013 there were 279 users declaring the familiarity with the legal terminology. Among them there were 4.3% declaring as female users (12 users). There were 42.3% from the group above (118 users) who have not achieved the editing number higher than 100, and 73 persons who gave up editing. Therefore, there are the remaining 88 users of Wikipedia with the input higher than or equal to 100 editions and active in 2013. This constituted 31.5% of the surveyed group, which was analyzed in the article.

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WYBRANE ZAGADNIENIA W ZAKRESIE KONTROLI DZIAŁAŃ ZAKŁADU UBEZPIECZEŃ SPOŁECZNYCH PRZEZ SĄDY ADMINISTRACYJNE – CZĘŚĆ PIERWSZA

Author(s): Łukasz Jurek / Language(s): Polish Issue: 25/2014

This article discusses the key problems of determining the jurisdiction of courts in matters of social security. The advantage of a broad reference to the jurisprudence of Polish courts and representative of ref. The author formulates a number of de lege ferenda postulates, based also on the practical application of the legislation.

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WYKORZYSTANIE PRYWATNEJ EKSPERTYZY W POSTĘPOWANIU KARNYM

Author(s): Aleksandra Szymańska / Language(s): Polish Issue: 25/2014

The aim of this article is to present the issues of using private expertise in criminal proceedings, with particular emphasis on its value as an evidence. It contains an analysis of the case law and literature. The author presents the definitions of private proof and then private expertise. The main problem is to determine a procedural nature of such an expertise. It could be perceived as an information of a proof, an private document or a procedural position of an accused or his defender. According to the author the most reasonable is the last one. This article also contains the list of opportunities and threats of using private expertise in criminal proceedings.

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SPRAWOZDANIE Z I OGÓLNOKRAJOWEJ KONFERENCJI „NA GRANICY PRAWA I MEDYCYNY, CZYLI WSPÓŁCZESNE PROBLEMY PRAWA MEDYCZNEGO I FARMACEUTYCZNEGO”

Author(s): Grzegorz Siedlecki / Language(s): Polish Issue: 25/2014

The report of the 1st National Conference "On the Borders of Law and Medicine, or the Contemporary Problems of Medical and Pharmaceutical Law” (Lublin, 12 May 2014)

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UDZIAŁ ORGANIZACJI POZARZĄDOWYCH W POSTĘPOWANIU PRZED TRYBUNAŁEM KONSTYTUCYJNYM

Author(s): Przemysław Brzuszczak,Kamil Ferenc / Language(s): Polish Issue: 24/2014

The paper treats about law frames regulating the participation of non-governmental organization (with its doctrinal name amicus curiae) in Polish Constitutional Tribunal. It indicates not only the rules being fundaments of NGOs’ contribution in the trial, but also presents real situations when non-governmental organizations raised their voices concerning the cases analyzed by the Constitutional Tribunal. The great worth of NGOs’ input in the Constitutional Tribunal proceedings is based on knowledge and experience of experts working for such organizations and their responsiveness for social problems as well. What is important, authors mainly aim at describing the role that amici curiae play in the human rights protection system. The data presented in the essay unambiguously shows the real influence of non-governmental organizations’ involvement on the Constitutional Tribunal’s conclusions phrased in the process of consideration upon the case.

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CHARAKTER PRAWNY ANEKSU DO PROTOKOŁU KONTROLI PŁATNIKA SKŁADEK. WYBRANE ZAGADNIENIA

Author(s): Łukasz Jurek / Language(s): Polish Issue: 23/2013

Annex to the control protocol is a means of correction of the findings of the inspection report. The legislature, however, did not provide such a document, even though there is no doubt the possibility of erroneous findings in the inspection. Article is to examine the current legal situation, enriched with attention de lege ferenda.

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Reform Of Justice Sector In Moldova – How Much They Can Learn From Serbian Experience

Author(s): Marina M. Matić Bošković / Language(s): English Issue: 4/2015

The author strives to present situation in justice sector in Moldova and efforts of the authorities to implement Justice Sector Reform Strategy. The first wave of reforms related to the legislative amendments and institutional setup are mostly implemented. The Supreme Council of Magistracy is established and should absorb its competences related to the administration of justice system, budget independence, performance evaluation of judges, disciplinary procedure against judges, election and promotion, etc. However Moldova is facing with the challenge of application of newly established framework in practice. Additional challenge for Moldova presents lack of clear path toward European integration. Having that in mind, author referred to the experience from Serbia in the judicial reform process, challenges in establishment of balance between independence and accountability of judiciary, optimization of court network and efficiency of court system. Serbian experience could be useful for Moldova and assist decision makers in avoiding mistakes.

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Jedinstveni patentni sud – novi pravosudni organ za rešavanje sporova u vezi za evropskim i unitarnim patentom

Author(s): Jelena Ćeranić Perišić / Language(s): Serbian Issue: 3/2013

The paper deals with the Unified Patent Court established for the settlement of disputes relating to European patents and European patents with unitary effect. On February 19, 2013 the Agreement on a Unified Patent Court was signed by 24 states (Poland and Spain refused to sign it) and Bulgaria as 25th state signed it in March 2013. On the current timeline it is likely that the system will be operational from the beginning of 2015 following the ratification by each Member State (or at least 13 Member States, as long as Britain, France and Germany are among them). After introductory notes with regard to the establishment of unified patent protection system in the European Union, the first part of the article is devoted to the problems on the road of establishment of the Unified Patent Court. The special attention is paid to the relations between the Unified Patent Court and The European Court of Justice. In the second part of the article, the author presents the most important provisions of the Agreement on a Unified Patent Court related to competence of the Court, eligibility criteria for the appointment of judges, language of proceedings etc.

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Predlog jedinstvenog postupka rešavanja patentnih sporova u EU

Author(s): Jelena Ćeranić Perišić / Language(s): Serbian Issue: 3/2012

The paper deals with the proposed Unified Patent Litigation System in EU. After introductory notes on the reasons for proposing this system, the first part of the article is dedicated to the European Patent Court. Draft agreement on the European Patent Court is a part of Unitary patent package, together with the Proposal for a Regulation of the European Parliament and of the Council implementing enhanced cooperation in the area of the creation of the Unitary patent protection and the Proposal for a Regulation of the Council implementing enhanced cooperation in the area of the creation of the Unitary patent protection with regard to the applicable translation arrangements. Special attention is devoted to the conformity of the new draft with the European Union Treaty and the Treaty on the Functioning of the European Union. In the second part of the article, the author analyses the role of the European Court of Justice within the proposed Patent Litigation System in EU. By the end of Jun 2012, heads of States and governments, removed the provisions organizing control by the European Court of Justice of litigations concerning Unitary patents. European Parliament was due to debate and vote on the Unitary patent. However, MEPs rebelled against the European Council's desire to substantially change the text at the last minute. They unanimously postponed the vote and sent the text back for reconsideration by the committee. So, the perspective of Unified Patent Litigation system is still questionable.

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Intentional Killing Of Efficiency By Overzealousness In The Pursuit For Truth: The Example Of Croatian Legal Aid System

Author(s): Slađana Aras Kramar,Barbara Preložnjak / Language(s): English Issue: 3/2012

Implementation of an equal right of all citizens to access to justice in order to obtain protection of their subjective rights is guaranteed by the norms of global and regional international documents. Republic of Croatia subscribed to the obligation of guaranteeing equality of all citizens in access to justice, by becoming a signatory of these international documents. Despite the fact that RC intends to follow contemporary societies in terms of implementation of political and legal ideals of realization of access to judicial and other state authorities which decide on matters of implementation and protection of citizens’ subjective rights, it is still falling behind. the Croatian Legal Aid Act (CLAA ) were listed two main criteria for access to legal aid.

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Подељена одговорност ЕУ и државе чланице

Author(s): Vesna B. Ćorić / Language(s): Serbian Issue: 3/2012

This paper provides a critical analysis of the concurrent liability of the European Union and a Member State, placing a particular emphasis on its notion, classification as well as on the legal effects of the given categorization within the EU legal framework. The paper further argues that in order to comply with requirements set out in article 13 of the ECHR (the right to an effective remedy), the current system of concurrent liability must be improved.

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Značaj forenzičke dnk analize u pravosudnom sistemu

Author(s): Marko Andrejević / Language(s): Serbian Issue: 2/2012

Revolutionary discoveries in genetics and molecular biology were made in the second half of the 20-th century. During that period, secondary structure of DNA was described, it’s role in inheritance was explained and the correlation with many diseases was made. Genes were identified as DNA sequences that are carriers of hereditary traits. Those sequences encode directly for a specific protein that has some of the important functions in our body, and is important for normal growth and development. It was also shown that there are regions of DNA which have no-coding function, and which have great variability that varies between individuals. DNA fingerprint is generated by identifying those sequences with certain scientific methods. Process of introducing and accepting the theory of DNA fingerprinting in the criminal justice system was followed by a number of controversies. This text will lead to some important features of DNA molecule that are important in forensic analysis. It will also point out to some methods of DNA sequence identification and development of DNA fingerprint. Several famous court cases will be mentioned to emphasize the immense importance of this method for the justice system.

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EU Pre-Accession Political Requirements For Western Balkans: Unravelling The Application And Compliance Record Of The ICTY Conditionality

Author(s): Davor Petrić / Language(s): English Issue: 3-4/2016

The European Union’s association offer to Western Balkans included, among other pre-accession political requirements, full cooperation with the International Criminal Tribunal for the former Yugoslavia. This requirement was envisaged as one of the crucial elements of the EU conditionality mechanism towards Western Balkans, and has heavily dominated the EU’s external relations agenda with the Western Balkans states. This essay analyses structural preconditions in selected countries of the Western Balkans (Bosnia and Herzegovina, Croatia and Serbia), and assesses impact of the ICTY conditionality on the dynamics of pre-accession Europeanization of the three states. With basis in both rationalist and sociological/constructivist meta-theories, discussion tracks down essential international and domestic factors, which if favourable facilitated the EU’s policy of ICTY conditionality. Primary aim of the essay is to arrive to a descriptive and causal conclusions and get better understanding why both the application of, and compliance with, the ICTY conditionality was in the end rather troublesome and inconsistent process. Main argument is that in the case of each country observed, serious impediments undermining the ICTY conditionality’s effectiveness can be encountered within the every factor assessed, which can be used to explain disruptive application and compliance record of the ICTY conditionality

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Harmonizacija kompanijskog prava sa pravom Evropske unije i pravila o slobodi osnivanja privrednih društava u sporazumu o stabilizaciji i pridruživanju

Author(s): Ana S. Knežević Bojović / Language(s): Serbian Issue: 1/2011

Harmonisation of Serbian law with that of the European Union is an obligation undertaken unilaterally by Serbia so as to accomplish its goal of joining the European Union. By far the most important document Serbia has signed in this process so far is the Stabilisation and Association Agreement. The paper analyzes the Agreement provisions prescribing rules on free movement of companies from Serbia and the EU and underlines the importance of being familiar with the European Court of Justice jurisprudence on this matter. Furthermore, the author analyzes the degree to which Serbian company law rules are harmonised with that of the EU and outlines the expected developments in law and practice in both areas.

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Praksa Evropske komisije i Suda pravde u primeni argumenta društva u finansijskim teškoćama u postupku kontrole koncentracija

Author(s): Ivana Ž. Rakić / Language(s): Serbian Issue: 1/2011

The article deals with the practice of the European Commission and Court of Justice concerning the application of the failing firm defence. The failing firm argument is a time-honoured defence in assessment of a concentration when merging party is failing firm due to financial difficulties. It allows the Commission to permit an otherwise anticompetitive concentration if one of the parties can demonstrate that it would fail in the absence of the proposed concentration and that it would in any event be forced out of the market. Namely, the parties must demonstrate that there is no causality between concentration and impediment of effective competition, i.e. that concentration does not lead to a deterioration of the competitive structure of the market.

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VICTOR’S LAW?: COLONIAL PEOPLES, WORLD WAR II AND INTERNATIONAL LAW

Author(s): Radha D'Souza / Language(s): English Issue: 1/2017

Contemporary world order rests on a fault-line. On the one hand it is an interstate system founded on the legal equality of all states. On the other hand it establishes institutions that privilege a small number of states in economy and politics. This article examines the fault-line, which has widened in recent times and threatens to destabilise the order established after the end of World War II. The ‘world’ in World wars is because of the global scope of the inter-European wars. The world wars were fought over colonies, in colonial territories, with the manpower and material resources of the colonies. Yet dominant narratives about the world wars speak about the wars as a European war between European nations and write-out colonial questions, colonial contributions and more importantly for this article the colonial impulses in the writing of contemporary international law and establishment of international organisations. This paper examines the human, monetary and material contributions of India in World War II. Britain was the preeminent Empire during the world wars and India the ‘jewel in the British Crown’. India was crucial to British conduct of the world wars. At the same time racism and repression during the interwar period fuelled powerful anti-colonial movements in India. Those struggles ended the British Empire. The irony of racism against millions of people who fought and died for Britain presents many perplexing questions about the legacies of World War II for racism and international law. This article examines the responses of different European powers to the independence movements in India during the world wars and argues that the responses of different Empires of the time to the anti-colonial struggles holds the cues to understanding the widening fault-line in the international order today.

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CONSEQUENCES OF RESERVATIONS TO INTERNATIONAL HUMAN RIGHTS TREATIES, CONCLUDED IN THE AFTERMATH OF WWII

Author(s): Aistė Akstinienė / Language(s): English Issue: 1/2017

Contemporary international human rights law and the establishment of the United Nations have important historical antecedents. Concern over the protection of certain minority groups was raised by the League of Nations at the end of the First World War. However, the League floundered because the United States refused to join and because the League failed to prevent Japan’s invasion of China and Manchuria and Italy’s attack on Ethiopia. It finally died with the onset of the WWII. The idea of human rights emerged stronger after WWII. The extermination by Nazi Germany of over six million Jews, Sinti and Romani (gypsies), homosexuals, and persons with disabilities horrified the world. With the beginning of the UN, countries started ratifying various human rights instruments that were supposed to protect individuals. Unfortunately, significant number of countries do not want to be bound by the international treaties to the full extent, therefore the make crucial reservations that create danger to the protection of human rights. In this article the author analyses specific reservations that are being done to selected international human rights treaties and is looking for the answer whether the regime of reservations described in Vienna Convention on Law of Treaties can be fully applied to those human rights treaties. The author also discusses if the reservations that are incompatible with the object and purpose of the treaty can be made and what consequences they may bring. For this reason the author describes the practice of the state parties under the Convention on the Rights of the Child. This treaty was chosen not only because it lays down the most significant principles of the protection of children rights but also due to the great number of reservations made to the fundamental provisions of this treaty. The regulation laid down in Vienna Convention on the Law of Treaties creates difficulties for the state parties and withdrawal of reservations seems to be more problematic in reality than it is in theory. In order to find the solutions, author analyses whether the Vienna Convention on the Law of the Treaties regime works properly within the mechanism of making reservations to the human rights treaties.

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The Development of the Russian Legal System after the “Accession” of the Republic of Crimea to the Russian Federation

Author(s): Natalia Cwicinskaja / Language(s): English Issue: 7/2017

On March 18 2014, the Republic of Crimea became a federal subject of the Russian Federation and the Ukrainian legal system was changed to the Russian system. The transition period was set to end on January 1 2015. This transition period was characterized by the fact that the law was created on a day-to-day basis, and as the residents of Crimea were unfamiliar with Russian law they found themselves in a legal vacuum. Laws were adopted in an urgent manner to ensure that the unification was as smooth as possible. In practice it became apparent that the allocated time was not sufficient, and the transition period was extended in some areas. The Article presents a review of the accession procedure and the legal regulations established in the Republic of Crimea during the transition period, and identifies some issues which have arisen.

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