Sprawy karne żołnierzy z austro–węgierskiej c. k. wspólnej siły zbrojnej. Studium przypadków na podstawie materiałów archiwalnych, zgromadzonych w Austriackim Archiwum Państwowym w Wiedniu (Kriegsarchiv)

Author(s): Marcin Przewoźniak / Language(s): Polish Issue: 13/2010

Wymienione w artykule sprawy karne prowadzone przez wojskowy wymiar sprawiedliwości nie miały raczej istotnego znaczenia dla funkcjonowania armii austro–węgierskiej. Stanowią jednak materiał pozwalający na zbadanie reguł rządzących w poszczególnych jednostkach wojskowych wspólnej siły zbrojnej z punktu widzenia szeregowego żołnierza. Analizując tego typu sprawy można również zapoznać się z problemami, które dotykały niższych stopniem żołnierzy; przede wszystkim można wniknąć w sprawy rodzinne, majątkowe oraz osobiste żołnierza, przeciwko któremu toczyło się postępowanie karne. Badanie przebiegu postępowania karnego, przy wcześniejszym zapoznaniu się z przepisami regulującymi wojskowe postępowanie karne wraz z wojskowym kodeksem karnym, umożliwia dokonanie analizy prowadzonego postępowania od strony zachowania norm formalnych.

Международна конференция на тема: „Държава. Общество. Престъпност“, Баку, Азербайджан

Author(s): Keti Bozukova / Language(s): Bulgarian Issue: 2/2023

THE GERMAN-POLISH CULTURAL PROPERTY DEBATE – CAN PRAGMATIC SOLUTIONS OVERCOME A CONVOLUTED CONTROVERSY?

Author(s): Hans-Georg Dederer,Markus Peter Beham / Language(s): English Issue: 41/2021

This contribution discusses the unresolved claims of Poland and Germany arising from the destruction, removal, and appropriation of cultural property during and immediately following the Second World War; viewed against the background of the 50th anniversary of the 1970 Warsaw Treaty and the 30th anniversary of the 1990 2+4 Treaty. It provides an analysis of the extent to which these and otherbilateral treaties between Germany and Poland impose legal obligations to restore or compensate for the destruction or loss of cultural property. Finally, it suggests pragmatic solutions to overcome the convoluted political, diplomatic and legal debates in the spirit of “cultural internationalism” and in line with the proposals of the Copernicus Group of Polish and German historians.

THE POLISH-GERMAN BORDER IN THE LIGHT OF THE 2+4 TREATY AND THE POLISH-GERMAN TREATY ON THE CONFIRMATION OF THE BORDER BETWEEN THEM

Author(s): Jan Barcz / Language(s): English Issue: 41/2021

The essence of the “border problem” between Poland and the FRG reaches back to the provisions of the Potsdam Agreement of 1945. The Polish position was unambiguous from the beginning: the border on the Odra and Nysa Łużycka rivers was established under international law in the Potsdam Agreement, while the subsequent actions undertaken within the framework of the “peace settlement” could only have complementary, declaratory significance. On the other hand, in the FRG an official legal position was developed according to which the former eastern German territories were only given to Poland (and the USSR) “under their administration”, and the final decision on the border was left to be taken by the future unified Germany in a “peace treaty” or a “peace settlement”. This position was not changed by the Normalization Treaty between Poland and the FRG of 1970, because it was interpreted in the FRGas only a “treaty about the renunciation of force”, an element of a modus vivendi which was to last until the unification of Germany. On the other hand, the Zgorzelec Treaty of 1950 between Poland and the GDR was interpreted as not binding for the future unified Germany. Such a position deeply destabilized political relations between the FRG and Poland in the post-war period and had a conflict-generating significance in a number of areas. At the beginning of 1990 the political changes in Poland coincided with the process of German unification. The democratic opposition in Poland, and thereafter the government of Tadeusz Mazowiecki, unequivocally supported the right of the German people to self-determination, at the same time expecting an unequivocal position on the Polish-German border. This fundamental problem was closed in 1990 under two international agreements: the Treaty on the Final Settlement with Respect to Germany (2+4 Treaty) and the Treaty between the Federal Republic of Germany (united Germany) and the Republic of Poland on the confirmation of the border between them. Thus for thirty-plus years now the “border problem” has been removed from the agenda of political discussions in Polish-German relations, which proves the effectiveness and durability of the agreement reached, which was reflected in both treaties.

ESCALATION OF THE CONFLICT BETWEEN RUSSIA AND UKRAINE IN 2022 IN LIGHT OF THE LAW ON USE OF FORCE AND INTERNATIONAL HUMANITARIAN LAW

Author(s): Patrycja Grzebyk / Language(s): English Issue: 41/2021

The aim of this article is to assess the military operation started on 24 February 2022 by Russia against Ukraine in light of the law on use of force, having in mind all the justifications officially expressed by Russian authorities and in light of international humanitarian law. The author claims that there is no justification for the Russian military action and thus it must be qualified as aggression. This, due to the serious violation of the peremptory norm, implies obligations on the part of states and international organizations (i.e. the international community). In addition, the current conduct of hostilities clearly shows that it is mainly Russian forces which neglect international humanitarian law principles, which might amount to war crimes.

Diminuarea forței principiului prezumției de nevinovăție în Directiva 2016/343/UE

Author(s): Dumitru-Vlad Bradea / Language(s): Romanian Issue: 1/2023

This article will analyze the legislative measures taken at the European level in order to establish the minimum standards for the application of the presumption of innocence, which had the role of systematizing, consolidating and clarifying the jurisprudence of the European Court of Human Rights in this field. It is noted that, although a principled regulation of the presumption of innocence was achieved through the adoption of Directive 2016/343/EU, the European legislator left it up to the European Court to establish new standards or interpretations, choosing not to assume the exceeding of standards imposed until that moment.

Titularul propunerii de autorizare a metodei speciale de cercetare prevăzute de art. 152 Cod procedură penală

Author(s): Ioan Florentin Ene / Language(s): Romanian Issue: 1/2023

The issue of the holder (the criminal investigation body or the prosecutor) of the proposal to authorize the special research method provided for by art. 152 Criminal Procedure Code determined, in judicial practice, alternative opinions. The clarification of this matter leads to the necessary conclusion that the acts of referral to the judge of rights and liberties or the court of law are in the exclusive competence of the Public Ministry.

Gestiunea mijloacelor materiale de probă în cursul urmăririi penale

Author(s): Aurelian Constantin Mihăilă / Language(s): Romanian Issue: 1/2023

For the regulation of the criminal process, there are many circumstances in which the judicial bodies have to manage various assets (movable, immovable), and sometimes also certain types of substances. It can be the hypothesis of material means of evidence or it can be the case of goods that are the subject of insurance seizure without necessarily also having the quality of means of evidence. During the criminal investigation phase, some of them are subject to administrative management by the prosecution unit responsible for the file in connection with which they were seized or made unavailable. The management rules cover two principles: the first refers to the fact that, during the course of the criminal investigation, these assets are kept at the headquarters of the police or prosecutor's office, and the second refers to the fact that after the completion of the file, they are either presented to the court (with a corresponding proposal, as the case may be), or they are returned to the person entitled to receive them, or they are submitted to other specialized bodies for their subsequent management.

Câteva considerații cu privire la posibilitatea restituirii pe cale administrativă a plângerii prealabile petiționarului și efectele asupra termenului prevăzut de art. 296 alin. (1) din Codul de procedură penală

Author(s): Oana Chichernea / Language(s): Romanian Issue: 1/2023

The lapsing nature of the 3-month period in which a prior complaint can be filed, the regulation of some exceptions expressly provided by law regarding the time from which this period runs, the lack of an express legal provision that allows the return of the prior complaint by administrative means, with consequence on the extension of the deadline for its formulation, the substantial consequences that the late complaint has on the criminal prosecution documents, all these are elements that must be taken into account for the assessment of compliance with the deadline provided by art. 296 of the Code of Criminal Procedure, in the event that the injured person fulfills the missing elements of the preliminary complaint, after the expiration of the 3-month period stipulated by law.

Considerații privind săvârșirea infracțiunii de violare a vieții private

Author(s): Radu-Mihăiţă Cazacu,Ioana Palade / Language(s): Romanian Issue: 1/2023

One of the objectives considered in the process of creating this article was to draw attention to the fundamental right to respect private life. A current criminal phenomenon, recently appeared, harms this fundamental right and produces serious consequences for its victims. But what happens in the European Union and in particular, in Romania, when this obligation to respect private life is violated? Some of the member states of the European Union criminalize this phenomenon and in Romania, there is a legislative proposal on this regarding. Another objective of this paper is the analysis of the existing legislative proposal in the Romanian Parliament, and subsequently, the presentation of the additions that must be made.

Art. 6 din Convenție (aspecte penale). Încălcare. Condamnarea reclamantului în temeiul unor dispoziții din dreptul intern în mod manifest contrare dreptului Uniunii Europene

Author(s): Antonia-Eleonora Constantin / Language(s): Romanian Issue: 1/2023

In this judgment, the Court found a violation of the plaintiff's right to a fair trial and the right guaranteed by art. 1 of the Protocol no. 1 to the Convention determined not by the refusal of the national courts to notify the Court of Justice of the European Union with a preliminary reference in order to interpret the law adopted in the matter of the common fisheries policy, but by the application of the domestic law that contravened the EU legislation in the matter. The case does not question the refusal of the national courts to refer the Court of Justice of the European Union with a preliminary reference, such a right not being guaranteed as such, but the violation of the principles of direct application and priority of EU law and, thereby, of the rights that the Convention consecrate them. When the EU law rules that do not raise any problem of interpretation and whose clear meaning has been communicated by the European Commission to the national authorities, including the courts before the final resolution of the case, the conviction of the plaintiff and the application of complementary sanctions of pecuniary nature by applying the provisions of national legislation which were obviously contrary to European law, represents, from the Court's perspective, a serious error of law that affects the fairness of the process, resides in a true denial of justice, lacking legal support and interference in the exercise of the right to the observance of goods.

Hotărârea Curții de Justiție a Uniunii Europene (Camera întâi), în cauza C-492/22 din 8 decembrie 2022

Author(s): Remus Jurj / Language(s): Romanian Issue: 1/2023

HOTĂRÂREA CURŢII DE JUSTIȚIE A UNIUNII EUROPENE (CAMERA ÎNTÂI) ÎN CAUZA C-492/22 DIN 8 DECEMBRIE 2022. „TRIMITERE PRELIMINARĂ – PROCEDURĂ PRELIMINARĂ DE URGENȚĂ – COOPERARE JUDICIARĂ ÎN MATERIE PENALĂ – MANDAT EUROPEAN DE ARESTARE – DECIZIA-CADRU 2002/584/JAI – ARTICOLUL 6 ALINEATUL (2) – STABILIREA AUTORITĂȚILOR JUDICIARE COMPETENTE – DECIZIE DE AMÂNARE A PREDĂRII ADOPTATĂ DE UN ORGAN CARE NU ARE CALITATEA DE AUTORITATE JUDICIARĂ DE EXECUTARE – ARTICOLUL 23 – EXPIRAREA TERMENELOR PREVĂZUTE PENTRU PREDARE – CONSECINȚE – ARTICOLUL 12 ȘI ARTICOLUL 24 ALINEATUL (1) – MENȚINEREA ÎN DETENȚIE A PERSOANEI CĂUTATE ÎN SCOPUL UNEI URMĂRIRI PENALE ÎN STATUL MEMBRU DE EXECUTARE – ARTICOLELE 6, 47 ȘI 48 DIN CARTA DREPTURILOR FUNDAMENTALE A UNIUNII EUROPENE – DREPTUL PERSOANEI URMĂRITE PENAL DE A FI PREZENTĂ ÎN PERSOANĂ LA PROCESUL SĂU”

Regimul contabil și fiscal al provizioanelor/ajustărilor și pierderilor pentru riscuri și cheltuieli

Author(s): Attila Tamas-Szora,Gabriel Tamas-Szora,Ramona-Ionela Haraguş,Mihai Mureşan,Marian Alin Irimia / Language(s): Romanian Issue: 04/2022

Economic movement is increasingly blocked. Unemployment is rising sharply and the number of companies and authorised individuals entering insolvency increased by 11.9% in the first six months of 2022 compared to the same period previous year. The whole world is going through one of the most unpredictable and pervasive socio-economic crises of all time. What are the preventive measures and remedies related to the fiscal component of this crisis? We are looking for answers, so we are submitting some ideas for discussion on the accounting and tax treatment of provisions, impairment adjustments and risk losses, and on the impact of force majeure on taxation and the taxpayer's relationship with the budget.

REŽIM ODGOVORNOSTI ZA ŠTETU U ŽIVOTNOJ SREDINI U PRAVU EVROPSKE UNIJE - OSVRT NA DIREKTIVU 2004/35 O ODGOVORNOSTI ZA ŠTETU U ŽIVOTNOJ SREDINI

Author(s): Zoran Sretić / Language(s): Serbian Issue: 2-3/2006

The Author of this text delivers an overview of the EU liability regime for environmental damage through analysis of provisions of Directive 2004/35. Starting from the hypothesis that legal concept of protected good determines adequate legal path of its protection, he recognizes that the liability regime for environmental damage is contingent upon EU legislator’s legal understanding of environment as a public good. Therefore, the Directive institutes public law concept of environmental damage complemented by public law liability which has to be established under administrative procedure. As a primary characteristic of the Directive, the author, hence, distinguishes its conceptual division with tort law appreciation of damage which is elaborated under Lugano Convention, as well as under domestic Law on Environmental Protection that leans upon Law on Contracts and Torts. On the other hand, he notices that, although liability for environmental damage is being established under administrative procedure in accordance with the Directive, criteria for its establishment are based upon concepts of strict liability and fault-based liability of civil/tort law. Nevertheless, unlike civil law approach where protection is conditional upon private initiative and where object of protection is of proprietary nature, here the liability is determined under administrative procedure which is initiated by competent authority acting as guardian of public interests in relation to an imminent threat of environmental damage with significant adverse effects or environmental damage with significant adverse effects to the natural resources and/or natural services. As natural resources and natural services cannot be valued by market criteria, the problem of their market valuation in fact, does not occur, as the scope of liability is measured through financial coverage of restoration costs for harmed natural resources and/or their services into baseline condition by liable operator in accordance with ′polluter pays′ principle. Therefore, the author concludes that the separation of environmental damage from the civil law concept of damage will create the risk to the potentially liable person of being financially burdened under two separate legal grounds (public law and private law) as a result of a single episode, which will provide policy background to effectively direct the operators’ behavior towards ultimate model of every legal system of compensation - better safe than sorry.

ДУКАТОВАЧКИ ЧЛАНЦИ — ЗНАЧАЈАН ИЗВОР ЗА ДРЖАВНОПРАВНУ И ПОЛИТИЧКУ ИСТОРИЈУ СРБИЈЕ XIX ВЕКА

Author(s): Dragan Nikolić / Language(s): Serbian Issue: 6/1986

Evropa to može bolje. O mogućnostima konstitucionalizacije Evrope / EU

Author(s): Milan Podunavac / Language(s): Montenegrine Issue: 11/2022

The paper deals with the relationship between democracy and constitutionality in the context of the contemporary experience of the European Union. In a text published five years ago, Habermas resignedly identifies a particular deadlock and crisis in discussions about Europe/EU. The colonisation of the public sphere, the limited reach of „citizenship”, and the dominance of the technocratic ethos. Dieter Grimm joins this discussion with an extensive text that seeks an answer to the question „does Europe need a constitution”. Grimm opens the discussion with a fundamental question about the constitution’s constituents and the difference between „constituent power” (pouvoir constituant) and constituting power (pouvoirs constitutes). Etienne Balibar (We, the people of Europe) moves the discussion from the field of constitutional theory to democracy. His canonical book represents one of the strongest calls for the re-establishment of (European) democracy. Hans Vorlander’s work (The Multiple Constitutionalisms of Europe) is a normative attempt to resolve this antinomy. The future, the author summarizes, lies in thought and action initiatives, shaping an alternative „hegemonic strategy” in the center of which will be the demand for the re-establishment of constitutional democracy.

Dyskurs polityczny i prawny o ustawie z dnia 27 kwietnia 1956 r. o warunkach dopuszczalności przerywania ciąży

Author(s): Marta Baranowska,Paweł Fiktus / Language(s): Polish Issue: 1/2022

The aim of the article is to portray the arguments presented by the deputies to the first term of the Sejm of the Polish People’s Republic during the legislative work on the Act of 27 April 1956 on the admissibility of the termination of pregnancy as well as the debates of lawyers who commented on the legal aspects of these new regulations. The parliamentary debate was dominated by voices which supported the law in accordance with the ruling party’s stance. However, there were also individual criticisms of the proposed solutions. Among the lawyers commenting on the newly enacted law, there were both supportive and critical voices. They lawyers focused on the interpretation of the new law and pointed to the difficulties with their interpretation or the lack of regulation of some vital issues related to the termination of pregnancy. Learning about the arguments presented by both the politicians and lawyers who commented on the 1956 Act on the termination of pregnancy has its own historical value. The political and legal discourse presented in the present article may also be an interesting source that can be compared with the contemporary debate on the subject.

Aspecte contradictorii în legislația europeană și națională privind regimul aplicabil constituirii și funcționării bancilor de dezvoltare

Author(s): Raluca Dinu / Language(s): Romanian Issue: 1/2023

In the 2021-2027 financial programming period, it is expected that the essential role of the investment banks is represented by the implementation of financial instruments and underwriting mechanisms, both financed from European funds as a Fund administrator, as well as investment initiatives at the European Union and at international financial institutions level. In this way, the investment banks may have access to investment initiatives at the Union or international financial institutions level as mediators, through the European Investment Bank (EIB), or as partners of the European Commission, according to the provisions of the Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (Omnibus Regulation)

Обавезно социјално осигурање радника у југословенској краљевини 1922–1939.

Author(s): Jelena V. Radović Stojanović,Ivana Krstić-Mistridželović / Language(s): Serbian Issue: 1/2023

The paper analyses the implementation of workers’ insurance in the Yugoslav kingdom from 1922 to 1939. The Law on Workers’ Insurance of 1922 provided the legal frame not only for sickness, accident, infirmity, old age and death, but also for unemployment. According to the Law, all persons who permanently or temporarily lease their physical or mental labour force were to be insured regardless of their gender, age and citizenship. Based on the comparison of the number of workers covered by the legal obligation of insurance and the number of actually insured workers, the real scope of the Law on Workers’ Insurance can be assessed.

«Dreptul trebuie să fie social» Otto von Gierke şi solidarismul Constituţiei din 1923 (I)

Author(s): Tudor Avrigeanu / Language(s): Romanian Issue: 1/2023

Departing from the Romanian Constitutional regulation of property from 1923 to 1934 controversies on the nature of the property as subjective right and/or social function, the present paper aims to reconstruct an unitary theoretical framework within the legal thought which could explain more widely the Romanian Constitution from 1923 as a solidarist constitution. We shall try to show that Otto von Gierke´s doctrines on Genossenschaft and Sozialrecht could aptly fulfill that role although (or rather because) it is not so well known among the Romanian legal scholars. The first part here will deal with the controversy on the nature of property by rising some questions, while the second to follow should offer some answers from Gierke´s work.