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THE ROLE OF THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN RESOLVING CASES CONCERNING SEPARATIST REGIMES IN THE REPUBLIC OF MOLDOVA AND GEORGIA

Author(s): Kurtskhalia Alexander / Language(s): English Issue: 1/2020

By exercising its contentious and advisory powers, the Strasbourg Court has an important role to play in identifying and filling gaps in public international law. As the European Convention only proposes a list of fundamental human rights and freedoms, without defining them, the essential role in their interpretation and application rests with the European Court of Human Rights.The application of the Convention in cases concerning human rights violations within the territory with separatist regimes raises the question of the Convention's opposition to these regimes and of their liability under the Convention. As a general rule, separatist regimes are not parties to international treaties on human rights, which would provide for certain obligations for them. However, there are situations in which the rules of international law entail obligations imposed on non-state formations.

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THE PHENOMENON OF THE ”DE FACTO STATES” AND NATIONAL IDENTITY CONSTRUCTION – THE TRANSNISTRIAN PARADIGM

Author(s): Natalia Putină / Language(s): English Issue: 1/2020

This article is an analysis of the phenomenon of ”de facto states„ and process of nation-building in unrecognized states, in particular, Transnistrian case. De facto states are considered an interesting anomaly in the modern international system of sovereign states. No matter how successful and efficient they are in the administration of their territories, they fail to achieve international recognitionAuthor analyze that the most important elements that have been identified by scholars in domain of construction of identities in unrecognized states, as un tool of soft power to enforce and consolidate internal recognition and population support of political power in condition of lacks of external recognition.Will be pointed the historical aspects that influenced the crystallization of a separate identity in Transnistrian region, the importance of cultural, political and symbolical aspects; the role of local political and political regime in separate region.

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AMNISTIE ȘI PEDEAPSĂ ÎN CONTEXTUL JUSTIȚIEI TRANZITORII ȘI A RECONCILIERII UNEI SOCIETĂȚI POST-CONFLICT

Author(s): Vitalie Gamurari / Language(s): Romanian Issue: 1/2019

Amnesty and punishment are two important institutions of transitional justice. Discussions on the application of one or the other are quite common, each part having its arguments. One thing we can state for sure – prioritizing only an institution, it will certainly lead to transitional justice promoted by touching objects – a company post-conflict reconciliation is impossible, this process is a complex one, in which an important role belongs non-legal rules. However, transitional justice trying to find that common ground, that would satisfy society in integrum.

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RADISLAV KRSTIC`S CASE AS AN EXAMPLE OF COMMANDER`S LIABILITY

Author(s): Katarzyna Czeszejko-Sochacka / Language(s): English Issue: 03/2020

The issue of the military order is a very complex one. When giving or executing an order, one should always take into account the necessity to make choices. The decisions taken may in the future imply criminal liability as a consequence of the order that is contrary to legal norms, or executing it. The purpose of the article is to present the problem of giving an order from the perspective of the crimes committed in the former Yugoslavia, with a detailed account of the R. Krstic’s case. The author tried to answer the questions: What is the scope of the commander's liability? Is he liable only for the orders he has given? Does this liability extend to the behavior of his subordinates as well? In the presented article an analysis of selected court cases important from the point of view of the problem of giving an order was carried out. For this purpose, the regulations of International Military Tribunal at Nuremberg were analyzed. Subsequently, an analysis of selected court cases being investigated under the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia. In conclusion are indicated the regulations of International Criminal Tribunal for Rwanda and the regulations of the Rome Statute of the International Criminal Court.

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Transitions Online_Around the Bloc-19 May

Author(s): Ioana Caloianu / Language(s): English Issue: 05/25/2020

Today’s news headlines: North Macedonian rights breakthrough reversed; dispute over Chisinau airport; Georgia and the U.S; Poland’s new Supreme Court head; and Slovenia emerges from lockdown.

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PROTECTION FROM GENDER-BASED VIOLENCE BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

Author(s): Jelena Ristik / Language(s): English Issue: 2/2020

Despite the lack of specific provisions in the European Convention on Human Rights regarding gender-based violence, the European Court of Human Rights has developed a substantial body of case-law in this area. It has been done through the interpretation and application of a number of provisions in the European Convention on Human Rights that are relevant to gender-based violence. This paper provides a review of the approach of the European Court of Human Rights in cases concerning gender-based violence. Namely, it is evident that a remarkable spate of cases dealing with gender-based violence is considered by the European Court of Human Rights, which provides very solid protection in this field. However, it seems that certain aspects of the case-law on gender-based violence are somewhat inconsistent. In this sense, having in mind that the judgments of the European Court of Human Rights are the main guidelines for the States in fulfilling their obligations arising from the Convention, it is very important for the Court to fully clarify its approach in this regard.

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Communism Equals or Versus Nazism? Europe’s Unwholesome Legacy in Strasbourg

Author(s): Aleksandra Gliszczyńska-Grabias / Language(s): English Issue: 01/2016

The accession of post-communist states into the Council of Europe system enlarged greatly the territory of effective protection of human rights in Europe and at the same time compelled the European Court of Human Rights to address the current effects of past violations of human rights by communist regimes. It gave the Court an opportunity to establish a legal standard of how to deal with matters such as the public presence of communist symbols and insignia, de-registration of neo-Communist parties, and the relevance of past membership in the Communist parties for an exercise of electoral rights in a newly democratized state. This opportunity was at the same time a challenge, and the Court was less than successful in meeting this challenge, despite the fact that it had already established the relevant legal standards when deciding about the cases triggered by the Nazi past. Without making it explicit, and without articulating openly the relevant differences, the Court has not established any equivalence between legal treatments of the aftermath of the two types of criminal regimes in the European recent past. The article discusses three recent cases belonging to these categories and concludes that there is a clear contrast between the Court’s treatment of “post-ommunist” cases and the same Court’s earlier treatment of equivalent “post-Nazi” cases; the article offers some explanations for the discrepancy which reflects a broader dualism in European collective memory of the past.

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Out of Eastern Europe: Legacies of Violence and the Challenge of Multiple Transitions

Author(s): Jelena Subotić / Language(s): English Issue: 02/2015

What is the contribution of Eastern European scholarship to the study of human rights and transitional justice? This essay takes stock of the most significant empirical and theoretical contributions of the study of Eastern Europe, specifically the study of the difficult case of the former Yugoslavia, to the scholarship on transitional justice. I identify three main challenges the scholarship on the former Yugoslavia has presented to the larger field of transitional justice: the political challenge of multiple overlapping transitions, the inability of international institutions to effect domestic social change, and the dangers of politicization of past violence remembrance.

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РОМАНИСТИЧНИ СЪОБРАЖЕНИЯ ЗА УСТОЙЧИВОСТТА НА ТЕРМИНИТЕ „НАСЛЕДНИК“ И „НАСЛЕДСТВО“

Author(s): Riccardo Cardilli / Language(s): Bulgarian Issue: 1/2020

The article presents the terms and concepts of heir and inheritance, formed in the archaic era by solemnis mos and included in ius civile. Inheritance is analyzed as a cultural and legal-religious achievement with richer content than the ordinary transfer of property after the death of the testator. A comparison is made between inheritance by law (ab intestato) and by will the appointment of an heir by testamentum calatis comiciis and adoption by adrogatio. The basic and genetically related terminology for heir and inheritance passes into the legal tradition based on Roman law in both models of inheritance – by will and by law. Linguistically, however, "successio" has an expressive meaning, but it is the result of the reasoning of classical jurists and interpreting the models of succession on the occasion of death in civil and praetorian law.

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The Issue of Genocidal Intent and Denial of Genocide. A Case Study of Bosnia and Herzegovina

Author(s): Edina Bećirević / Language(s): English Issue: 04/2010

This article discusses the issue of special genocidal intent and, within it, the relevance of judicially established truths to the wider historical context. It suggests that genocide researchers should not rely only on verdicts—which either deny or confirm genocide—as historical truth but, rather, use the judicial process and trial evidence as signposts to direct their research. The author uses the case study of Serbian genocide against Bosnian Muslims from 1992 to 1995 to illustrate the failings of judicially established truths in determining wider historical truth. Wartime documentation, interviews with witnesses, and court transcripts are analyzed to illustrate how this wider truth is sometimes lost when focus on the importance of supporting documents is overshadowed by a final verdict. The case of Srebrenica is outlined to illustrate how documents used in trials, as well as witness testimonies, can contribute on their own to the understanding of historical truths. In this case, a selection of trial narratives and documents is used to examine not only if there was “special intent” among Serbian political leadership to exterminate Bosnian Muslims as early as 1992, but also to determine if international community representatives were aware of that intent and ignored it consciously.

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HOW THE TECHNIQUE ADVANCEMENT DOES THREATEN HUMANKIND, ENVIRONMENT AND LIFE: AN ETHICAL APPROACH

Author(s): Carmen COZMA / Language(s): English Issue: 1/2020

Undoubtedly, the advancement of technique and technology represents one of the most important paths of human progress. It is not the place to stress the great value technologies have meant throughout the history of civilization on Terra, especially in its 20th century growth, connected with the „Second Industrial Revolution‟ followed by the „digital revolution‟, on which the so-called „Fourth Industrial Revolution‟ is now building. Unfortunately, there are plenty of examples of human using of a good thing not for good purposes, but on the contrary causing major destruction and suffering on long-term. This kind of situations emphasizes a lack of responsibility and of minimal wisdom, care and respect for life in its integrality. Beyond all, at stake there is a serious problem of morality. We refer to the ignorance of ethical problems by some corporate organizations in our globalizing world, having a great negative impact for the planet and its various any life-forms. Part of nowadays multinational companies proves disdain as regards basic moral duties and social responsibilities, even though they display impressive codes of conduct, which remain just emptied formulas of applicability in real life. It is the case of the serious risks and dangers that the technique known as hydraulic fracturing or „fracking‟ produces for the medium to long-term evolution of life in its plenitude on Earth. In this paper we try to highlight the need of a veritable ethical culture to be appropriated and activated by all the social actors and, also, the significance of moral awakeness in making people to act for their own fundamental rights. We focus on the importance of working together on the side of „good and right‟, using the potential of moral philosophy towards an efficient, healthy and secure interference with economics, ecology, social culture, etc., to protecting and developing the wellness and sustainability of life, of natural environment and of human well-being finally.

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Bosnia-Hercegovina and International Justice. Past Failures and Future Solutions

Author(s): Marko Attila Hoare / Language(s): English Issue: 02/2010

Three different international courts have determined that genocide took place in Bosnia-Hercegovina in 1992-1995: the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Court of Justice (ICJ), and the European Court of Human Rights (ECHR). Yet paradoxically, there has been virtually no punishment of this genocide, while the punishment of lesser war crimes of the Bosnian war has been very limited. The ICTY has convicted only one individual, a lowly deputy corps commander, of a genocide-related offence. The ICJ acquitted Serbia, the state that planned and launched the assault upon Bosnia-Hercegovina in 1992, of genocide and related offences, finding it guilty only of failure to prevent and punish genocide. Although Serb forces were responsible for the overwhelming majority of war crimes, the ICTY prosecution has disproportionately targeted non-Serbs in its indictments and, among Serbs, has disproportionately targeted Bosnian Serbs, with no official of Serbia or Yugoslavia yet convicted of war crimes in Bosnia. This article argues that the meagre results of the international judicial processes vis-à-vis the crimes of the Bosnian war must be sought in the structural failings, poor decision making, and political influences that affected the international courts. It argues that the international courts have failed either to deliver justice to the victims of the war crimes or to promote reconciliation among the peoples of the former Yugoslavia and suggests measures that could be taken to rectify the situation.

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Review Essay

Author(s): Josip Glaurdić / Language(s): English Issue: 02/2010

The review of: Charles Ingrao and Thomas A. Emmert, eds., Confronting the Yugoslav Controversies: A Scholars’ Initiative. West Lafayette, IN: Purdue University Press.

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Policing Via Principles: Reforming the Use of Force in the Western Balkans

Author(s): Suzette R. Grillot / Language(s): English Issue: 02/2008

After a significant period of violent conflict in the Western Balkans, countries in the region, specifically Albania, Bosnia-Herzegovina, Croatia, Macedonia, Serbia-Montenegro, and the United Nations (UN) protectorate of Kosovo, have embarked on a process of democratic reform. Part of the democratization effort involves reforming the police force. One important, yet not often studied, aspect of police reform is the appropriate use of force with firearms. This study explores the process of police reform in the Western Balkan region to assess the implementation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Ultimately, this study offers a view of law enforcement activities in an attempt to assess how well these countries are incorporating international standards on the use of force with firearms into their national police practices. In so doing, this research enriches our understanding of weapons issues within the context of security sector, and specifically police reform.

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EVROPSKI PRISTUP (NE) RAZUMIJEVANJU GENOCIDA NAD BOŠNJACIMA

Author(s): Rasim Muratović / Language(s): Bosnian Issue: 9/2020

Genocid u Bosni i Hercegovini jedan je u nizu genocida u novijoj historiji svjetske civilizacije u krvavom ogledalu ideološkog pogroma i državno organizovanog zla, s kojim se politika, nauka i filozofija još uvijek nisu u stanju ili se ne žele radikalno obračunati na ljudski smislen i životno obećavajući način. Uobičajena fraza „da se više nikad ne ponovi“, ta kontekstualno-deklarativna mantra, neizbježna tokom sve rjeđih antifašističkih godišnjica i ceremonija, pojavljuje se tako kao izraz moralnog licemjerja, politikantske nedosljednostii neodgovornosti svjetskih moćnika. Zahvaljujući toj nedosljednosti i toj neodgovornosti, bauk Auschwitza je, ponovo, čak u istoj povijesnoj sekundi, sasvim neometano vaskrsnuo u (da paradoks bude veći) sigurnosnoj zoni UN-a Srebrenica, u julu 1995. Zdravorazumsko pitanje glasi: šta je tek sve činjenoi počinjeno u nezaštićenim - nesigurnim zonama širom Bosne i Hercegovine? Naravno, ništa što već nije pokazano i slikom i tonom širom svijeta. Rijetko su koji raniji izvršioci genocida najavljivali i izvršavali svoje zločine tako trijumfalno kao onaj u Srebrenici. Niko od ranijih izvršilaca u dugoj povijesti genocida se ne ponosi tom civilizacijskom sramotom kao što to rade počinioca genocida u Srebrenici. Uprkos očiglednosti i sudskim presudama, genocid se uporno, javno i nekažnjeno negira i afirmira.

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NEKA PRAVNA PITANJA U SPORU BOSNE I HERCEGOVINE PROTIV SRBIJE ZBOG KRŠENJA KONVENCIJE O SPREČAVANJU I KAŽNJAVANJU ZLOČINA GENOCIDA

Author(s): Sakib Softić / Language(s): Bosnian Issue: 9/2020

Ovaj rad se bavi pitanjima koja se tiču pravnog spora između Bosne i Hercegovine i Srbije vezanog za kršenje Konvencije o sprečavanju i kažnjavanju zločina genocida. Spor je privukao veliku medijsku pažnju, te se o njemu dosta govorilo i pisalo, ali samo od strane medija i političara. Pravnici u Bosnii Hercegovini ignorisali su ovu pravnu temu. Istina je da je spor dugo trajao i da je korišćena ogromna količina dokaznog materijala, da je prevladavala pravna praksa drugih pravnih tradicija, te da se spor nije vodio na našem maternjem jeziku, međutim, da li je sve to dovoljno opravdanje za ignorisanje jednog takvog historijsko-pravnog događaja? Autor u ovom tekstu nastoji ukratko opisati i objasniti osnovna pitanja koja su bila predmet spora, te opisati i objasniti kako je Bosna i Hercegovina nastojala dokazati vlastite tvrdnje, u čemu je uspjela a u čemu nije, uz zauzimanje vlastitih pravnih shvatanja o predmetnim pravnim pitanjima.

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THE RULE OF LAW CRISIS AND SELF-INCURRED IMMATURITY

Author(s): Benjamin Nurkić,Aldina Jahić / Language(s): English Issue: Suppl./2020

The COVID-19 pandemic challenged countries around the world to preserve public health which entailed limitations of human rights. We have seen around the world that these limitations were adopted in way that was not in accordance with the proportionality principle, which led to misuse of the state of emergency in general and the interventionism of unseen proportions. The goal of this paper is to present how Bosnia and Herzegovina, as a country in transition, faced the COVID-19 pandemic and give an overview of the events that represent human rights and freedoms violations and abuses associated with the state of emergency.

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The Devil’s Confessors: Priests, Communists, Spies, and Informers

Author(s): Lavinia Stan,Lucian Turcescu / Language(s): English Issue: 04/2005

The article charts the efforts of the Romanian Orthodox Church, the country’s largest religious denomination, to block the public exposure of the names of priests and prelates who collaborated with the dreaded communist secret political police, the Securitate, by informing on other priests, disclosing information obtained from believers during confession or supporting communist antireligious policies. The article identifies four types of attitudes toward the Securitate of members of the Romanian Orthodox clergy, presents the arguments in favor of and against the public exposure of tainted priests, examines the recent revelations regarding the controversial past of Patriarch Teoctist, and investigates the Church’s efforts to impose amendments to the Romanian transitional justice legislation that would exempt priests from being investigated by the National Council for the Study of Securitate Archive.

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Outrageous Rehabilitations: Justice and Memory in the Attempts to Restore the War Criminals’

Author(s): Andrei Muraru / Language(s): English Issue: 13/2020

Starting from the most recent rehabilitation request in Romanian justice (General Nicolae Macici, one of the coordinators of the 1941 Odessa massacre), this study examines the case of the rehabilitation of war criminals during the communist regime and after the 1989 Revolution. In 1945, the post-war trials, in which many members of the Antonescu regime were tried, disappeared as subjects from the public sphere, though the trials went on. The series of rehabilitations began in the mid-1960s, when the communist regime put in practice a thaw and the release of political prisoners. Analyzing concrete cases of Romanian military, intellectuals, and dignitaries who obtained legal and social rehabilitation during communism, the present study shows that those rehabilitations were made with the tacit consent of the Romanian authorities. However, the trials were not retried and the convicts were not considered not guilty. The collapse of communism paved the way for the legal rehabilitation of many war criminals by the justice system through retrying the trials and acquitting those guilty of war crimes and genocide. In general, the legal rehabilitations were aimed either at honoring the memory and restoring the honor of those considered to have been victims of the Soviet occupation, or at allowing their heirs to reclaim the confiscated property of the convicts. The study shows that these posthumous post-communist rehabilitations were made possible due to the general current within Romanian society in the 1990s. This trend, maintained by a political and historiographical agenda, was stopped in the 2000s,with Romania’s access to NATO and the European Union. Although public campaigns to rehabilitate war criminals have continued, the justice system has not allowed any rehabilitation of those convicted of war crimes and genocide after 2000.

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LEGAL POSITIVISM: AN OBSTACLE IN THE PROCESS OF STRENGTHENING THE RULE OF LAW IN BOSNIA AND HERZEGOVINA

Author(s): Benjamin Nurkić / Language(s): English Issue: 1/2021

So far, a legal positivism issue in the process of strengthening the rule of law in Bosnia and Herzegovina was not recognized by the wider academic community. The expert report on rule of law issues in Bosnia and Herzegovina addresses, for the first time, legal positivism as a part of the process of strengthening the rule of law in Bosnia and Herzegovina. This paper is an attempt to gather, and in one place present all the advantages offered by the constitutional system of Bosnia and Herzegovina that were not used by its institutions due to the application and implementation of legal positivism. This paper demonstrates misguided reform policies whose sole purpose was the strengthening of the rule of law in Bosnia and Herzegovina but turned to be just superficial adjustments that were unsuccessful. The paper argues the necessity of legal education reform as the key element in the process of strengthening the rule of law. Legal education reform is possible through the reduction of legal positivism impact on future lawyers, and this will be accomplished by the change in the paradigm of legal understanding among future lawyers who will make important decisions on the rule of law in Bosnia and Herzegovina. Two strategic objectives must be met in terms of legal education reform for the strengthening of the rule of law: the development of a critical stance towards legal provisions in force and training in the use of international instruments during the decision-making process.

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