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This article examines the issues of the need and opportunities for informal (thoughtful, reasonable, creative) application of the criminal law. The problem is closely related to the legal discussion on the limits of discretion of the judge in the interpretation and application of laws. The author expresses the opinion that despite the fact that the influence of legal positivism on criminal justice is stronger than on civil one, but even in a criminal case the judge does not have to be completely restrained by the letter of law. The paper justifies the need for an informal application of the criminal law, discusses the legal doctrines that allow it to do so. Beyond doubt, the compliance with the letter of law is a desirable standard in criminal justice. Nullum crimen nulla poena sine lege (no crime and punishment without law) principle is a fundamental basis of criminal law, which protects citizens from arbitrary prosecution and brings clarity to what is a crime in society and what legal consequences are foreseen to the offender. However, the need for informal application of the criminal law actually exists. The main objective reason for informal justice is eternal incompleteness of law, limited opportunities of written rules, diversity of life, which never fits into dry definitions. Even the criminal law always risks falling behind changing realities, not to respond in time to changes, misunderstand them, create uncertainty and conflicts of values. The subjective reason for informal application of criminal law is surplus, clarity and consistency strapped legislation, which often produces irrational, abstract and limitless definitions of particular crimes. These definitions later become the means to formulate excess criminal charges for minor infringements and artificially criminalize relations regulated by other branches of law (tax, administrative, civil, etc.). So, the need of informal application of the criminal law is primarily related with the need to avoid artificial criminalization and absurd criminal convictions. The author distinguishes the following working legal instruments allowing informally apply the criminal law: 1) expansive and narrowing interpretation of criminal law; 2) the concept of dangerousness of criminal act; 3) the general legal principle of proportionality and the principle of criminal law as a last resort (lat. ultima ratio); 4) the maxim of human rights protection. The paper illustrates the effectiveness of these concepts with concrete examples of court practice.
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The authors of this paper analyse different approaches to laesio enormis in the modern contract law. The embodiment of laesio enormis – gross disparity – is examined in the context of the whole Lithuanian Civil Code, particularly in relation to general provisions of voidability of legal transactions. The last part of this article is dedicated to practical application of Art. 6.228 of the Civil Code in the case law of the Supreme Court of Lithuania. It is concluded that the draftsmen of the Civil Code took intermediate approach to the implementation of the doctrine of laesio enormis by transposing the concept of the gross disparity from the UNIDROIT Principles. Most of the times it requires qualified criteria for its application, but occasionally a contract might be avoided on the grounds of pure (simple) lesion if there is no justification for significant disproportion. The analysis of the remedy of the gross disparity showed that it is the only ground for avoidance of a contract by notice that is incorporated into Lithuanian contract law. The other classic vices of consent (fraud, threat and mistake) were not transposed from the UNIDROIT Principles. These grounds are embodied in the book I of the Civil Code. However, the contract (or any other legal transaction) might be nullified by the application of these grounds only if there is a court judgment declaring a contract void on one of these grounds. This peculiar approach exposes the lack of systematic coherency in the Lithuanian Civil Code. Taking into account the fact that since the enactment of the Civil Code there is no evidence of practical abuse of the gross disparity remedy, the authors of this paper suggest that the legislator should amend the Civil Code by incorporating provisions which would allow to avoid contracts by notice on the basis of threat, fraud and mistake. The authors also revealed that the case law on application of the gross disparity is not particularly consistent and predisposed to change. There were few questionable decisions concerning interpretation and implementation of the gross disparity. However, the Supreme Court of Lithuania over the years has showcased a better understanding of this remedy.
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Since the end of World War II, there has been a gradual strengthening of the human rights’ protection. From the material point of view, this reinforcement is linked to the apparition of four generations of human rights, which complementarity aims at insure the respect of the dignity shared by all human beings. From the formal point of view, this improvement is due to the consecration of these rights and liberties by the Constitution of many democratic States and by the international and European laws. Despite some other important progresses, however, the effectiveness of the human rights nowadays still confronts some important limits. These other advances are linked to the desacralisation of the public power generated by the diffusion of the liberal and neoliberal ideas. Thanks to them, it appeared that the check and balances theory and the political ethics were no more sufficient to limit the absolutism of the political power. So, the positive laws have reinforced the subjective rights of the individuals. Thus, these latest rights are now allowed to defend their own interests against the State before the Courts of Justice, even when the texts do not expressively recognize the ability to do so. As it can be seen, the subjectivisation of the human rights also initiated a juridictionnalisation of their protection, illustrated, for example, by the creation of the European Court of Justice or the French priority preliminary rulings on the issue of constitutionality. Despite these advances, there still exist some significant limitations. Some are linked to the fact that all the human rights have not acceded yet to the status of subjective rights. It is the case for many rights and liberties of the other generations. The positive laws tend indeed to make of their respect a relative obligation for the States by reducing them to a simple obligation of means, which respect is not a priority in recession times. Other limits are linked to some perverse effects of the juridictionnalisation of the human rights’ protection. In theory, the dialogue between the different judges or institutions in charge of this protection is a way to avoid contradictions of jurisprudence about the human rights’ signification and judicial effects. But in practice, some conflicts of interpretations do exist, which weaken the really interest of such a jurisdictional protection. In conclusion, a mechanism to avoid conflicts of jurisprudence remains to be created. It is probably one of the 21st century’s main issues concerning the improvement of the human rights’ protection.
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In this article, the author proposes an idea of popular sovereignty as an additional condition for statehood. The author firstly evaluates the two main theories of statehood in international law, mainly the constitutive and declarative theory, and explains their deficiencies. Constitutive theory leads to the relativity of states. According to the declaratory theory, which was codified in the Montevideo Convention (1933) and is thus currently positive international law, the requirements for statehood are: a) a permanent population, b) a defined territory, c) a government and d) capacity to enter into relations with other states. The first three conditions are empirical and necessary and refer to the socio-political process of the creation of states. The fourth condition is problematic for two reasons. Firstly, it is logically circular, and secondly, it cannot be saved by reference to a main source of international law, namely state practice. Not only state practice cannot currently explain the fourth condition, but it is also logically impossible for it to do so because it falls in the trap of moving from conditions of statehood (recognition of a state), which are the conditions set by public international law for an entity to become a state, to conditions of recognition (recognition as a state), which are conditions based on which states decide whether to recognize other entities as states. If the fourth condition is abandoned, there seems to be a gap because the three remaining conditions are empirical, not legal. Thus, they explain the creation of an entity (non-legal term), not the creation of a state. They do not explain how that entity is elevated to a state, which is a full subject of international law. The author explains why there is a reason for a fourth legal condition to exist and suggests that the fourth condition ought to be popular sovereignty. Therefore, the author’s argument is a deontological, not an ontological one, as it makes a suggestion regarding how international law ought to be, not about how international law actually is. The idea of popular sovereignty the author is suggesting is a very thin notion of popular sovereignty and is merely the historical fact that at some point in time, a permanent population living in an identifiable territory under a government voted for a constitution freely while the four standard requirements for freedom and individual autonomy were being satisfied. Further on, whether popular sovereignty is a necessary or sufficient condition for statehood is discussed. Then, the author tries to ground this suggestion of popular sovereignty on Buchanan’s deontological argument regarding the goal of international law: the goal of international law ought to be justice, in the sense of realization of basic human rights.
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The European Union judicial system has fundamentally changed after in 2004, on the basis of the Treaty of Nice, the Council of the European Union decided to create the first European Union specialized court − Civil Service Tribunal, which task is to rule on disputes between the European Union and its staff. The Civil Service Tribunal’s founders believed that, due to the distinctiveness of public service disputes and their considerable number, indirect link with Community law, specific procedures and rules applied to settlement, those disputes should be entrusted to the court with appropriate specialization. In the EU judicial system, the Civil Service Tribunal occupies the ground level (the first instance). Its decisions may be subject to an appeal to the General Court. In exceptional circumstances, the decisions of appeal by the General Court may in turn be re-examined before the Court of Justice. Despite the fact that the Civil Service Tribunal is attached to the General Court, it performs judicial functions autonomously and it is independent from the Court of Justice and the General Court. The fact that the Civil Service Tribunal makes as many efforts as possible to take into account the previous case law of the Court of Justice and the General Court related to the matter in question should not be surprising, because as Civil Service Tribunal forms an integral part of the European Union Court of Justice, its case law does not constitute a threat to the consistent and efficient functioning of the EU judicial system. However, it does not mean that the Civil Service Tribunal just follows the previous case law without taking into account the evolution of the EU civil service. On the contrary, that evolution has a huge impact on the content of Civil Service Tribunal case law. From an administrative and institutional point of view, this court is still part of the European Union Court of Justice, but, from the other courts, it is different not only in its specific jurisdiction: its composition and procedure for appointment of its members are also distinctive and innovative. It has its own Registry, organizational structure and dispute settlement system, but makes use of the services of the Court of Justice for its other administrative and linguistic needs. This article looks at the reasons behind the establishment of the Civil Service Tribunal, the various milestones, its composition, its unique appointment procedure compared to the Court of Justice and the General Court, its jurisdiction and its place in the EU judicial system. It thoroughly examines the legal grounds for a Civil Service Tribunal, documents of its foundation and its setting up.
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The Constitutional Court investigates the compliance of law (part thereof) or other legal act (part thereof) with the Constitution according to: 1) the contents of norms; 2) the extent of regulation; 3) the form; 4) the procedure of its adoption, signing, publication, and entry into effect, which is established in the Constitution. Law (or part thereof) or other act (or part thereof) of the Seimas, act of the President of the Republic, act (or part thereof) of the Government may not be applied from the day of the official publication of the decision of the Constitutional Court that the act in question (or part thereof) is in conflict with the Constitution. The Constitutional Court, having assessed the emergence of a possible legal situation after the entry into effect of the Constitutional Court’s ruling recognising that a law or other legal act is recognised to be in conflict with the Constitution, has the powers to establish a later date of the publication and entry into effect of its ruling that recognised a particular law or other legal act to be in conflict with the Constitution. The concept of the provisions of the Constitution as presented by the Constitutional Court is binding on all institutions that apply law, as well as on their officials and on all courts. The power of a decision (ruling) of the Constitutional Court recognising a law or another legal act as unconstitutional may not be overruled by a repeated adoption of the same law or legal act by the Seimas or another law-making entity. The general rule “the power of decisions of the Constitutional Court is directed to the future” consolidated in the Constitution is not absolute. The Constitutional Court, having found that an impugned legal act (part thereof) is not only in conflict with the Constitution, but also essentially negates the fundamental constitutional values – the independence of the State of Lithuania, democracy, the republic, or the innate nature of human rights and freedoms – enjoys the powers to rule that the consequences of the application of that legal act (part thereof) are unconstitutional.
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The theoretical recognition of the priority for human rights and freedoms and their legal consolidation are the core of the constitutionalism of democratic states. It is clear that the system of human rights and freedoms is a particular entirety of standards of behavior among people. The doctrines of the constitutionalism of democratic states agree that the genesis of human rights and freedoms is treated as innate. Such a conception is meaningful due to several aspects. Firstly, it no longer provides any ground a priori to question the value of human rights and freedoms. Secondly, such a conception leaves much room for the discourse on the content of a specific right or freedom, and on the balance between rights and freedoms. When analyzing the catalogues of human rights and freedoms, the notion of human dignity is inevitably encoutered. Paradoxically, the term of human dignity, although forming a part of the content of many international legal acts and national constitutions, is not understood unambiguously. In some countries, such as Poland or Germany, human dignity is such a significant core of the constitutional jurisprudence that it itself determines the outcome of many cases. In other countries, such as Lithuania and Latvia, human dignity is mentioned in the constitutional jurisprudence, however, an assessment related to guaranteeing (failure to guarantee) human dignity is not the principal one, nor is it the only argument determining the outcome of a specific case. That being said, it is also necessary to note that the different intensity of the use of the term “human dignity” in the constitutional jurisprudence of different countries does not mean a different situation of human dignity in those states. Neither philosophy nor the legal jurisprudence defines the category of human dignity in an unambiguous manner. However, an important conclusion may be formulated that the ontological essence of human dignity, both in philosophical and legal aspects, is best disclosed through the relation between this term and the term of human rights and freedoms. In the discourse, on the basis of an empirical method, we have held that human dignity may not be violated without violating its specific right or freedom. In this sense, we find a methodological formula to treat the term “human dignity” as a certain synonym when we talk about specific human rights and freedoms or when we talk about them in general. By ensuring a specific right or freedom of the human being, the constitutional jurisprudence ensures their dignity as of the human being.
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The system of the public administration in Ukraine needs to be improved based on the theoretically proven concept. The legal nature, the organizationally-legal forms of entities of the public administration, in particular, of such special state bodies as central state bodies of executive power with special status and national regulatory authorities, are among the most discussible issues. Based on the analysis conducted in this paper, the conclusion about the necessity of the relevant criteria for the establishment of different organizationally-legal forms of central state bodies of executive power has been made. There is a separate group of bodies within the system of central state bodies of executive power that has the special scope of competence, special relations with the Government of Ukraine, the special procedure of establishment, reorganization and liquidation, as well as the special procedure of appointment and dismissal of the chairmen of the bodies – central state bodies of executive power with special status. However, such bodies have a transitional character; their existence within the system of the bodies of executive power seems to be artificial. Therefore, it is recommended to exclude such bodies from the system of bodies of executive power. The author of this paper supports the establishment of the separate group of independent regulatory authorities (that should include, in particular, the Antimonopoly Committee of Ukraine, regulatory commissions in the spheres of energy, utilities, telecommunications, bonds and financial markets) within the system of the public administration of Ukraine. However, the legal framework for such national regulatory authorities is still stipulated only by laws and regulations. Therefore, it is proposed to amend the Constitution of Ukraine with the provisions on independent regulatory authorities, and, in particular, to share the responsibilities regarding the appointment and dismissal of the chairmen and the members of such bodies between the Parliament and the President of Ukraine, to stipulate that the framework for establishment and functioning of these organs shall be stated only by laws of Ukraine, to define that the national regulatory bodies shall be accountable to the Parliament of Ukraine and to the President of Ukraine and to stipulate the strict requirements of such accountability by laws.
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The actions for failure to act against European Union institutions are governed by the Treaty on the functioning of European Union (hereinafter also referred to as TFEU) Article 265. The purpose of these actions is to constitute a fact that European institution failed to act by not adopting legal measure when it had the legal obligation to adopt it. The action for failure to act can be lodged by privileged applicant, i. e. member state or European Union institution. Also, the action can be lodged by non-privileged applicant, i. e. private natural or legal person. It is noteworthy that in legal doctrine the right to action (in latin called locus standi) under Article 265 of the TFEU has been analyzed insufficiently compared to the right to action under Article 263 of the TFEU, which governs the actions for annulment. It is not clear under what conditions applicants can bring an action for failure to act before the Court of Justice of the European Union. Further uncertainty occurs regarding the right to action of private applicants under Article 265 of the TFEU. As it seems from the wording of Article 265 of the TFEU, only in cases where European Union institution fails to address to that private applicant any act other than a recommendation or an opinion, private applicant is entitled to bring the action for failure to act before the court. Questions in particular arise whether private applicant can use the action for failure to act in case the non-adopted legal act would be addressed to third party, but inevitably such inaction influences the legal interests of such private applicant. For the above mentioned reasons, this scientific article aims to disclose the criteria for the right to action under Article 265 of the TFEU regarding privileged and nonprivileged applicants. The article consists of three parts. In the first part, under what terms the action for failure to act can be lodged by member states and European Union institutions is analyzed. Further, in the second part, the same analysis is performed regarding private natural and legal persons. Finally, the third part provides necessary conclusions and remarks.
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This article examines whether the principle of party autonomy and prorogation of jurisdiction may be applied in cross-border litigation on family-law matters. Drawing different sources, including scientific works, national legislation of Ukraine, international treaties, instruments on codification of the principles on transnational civil procedure, the paper first gives a brief overview of the history and current situation concerning regulation of prorogation of jurisdiction. Then, the author presents the results of a study of jurisdictional rules provided by Ukrainian internal legal acts and international agreements on jurisdiction in which Ukraine is a party (the Hague Conventions, bilateral and multilateral treaties on legal assistance and legal relations in civil and family relations) and draws conclusions concerning peculiarities of prorogation of jurisdiction for matters arising from family-law relations. Attention is also paid to the comparative overview of the Hague Conventions and Regulations of the European Union (Regulation No 2201/2003/EC of November 27, 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility and Regulation No 4/2009/EC of December 18, 2008 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters Relating to Maintenance Obligations). Several opinions of the European Court of Justice on some issues of prorogation of jurisdiction are noted, as well. The most remarkable changes in the prorogation agreements regulation in Ukraine took place by the entry into force in 2005 of the Law of Ukraine on Private International Law. Article 76 of the Law stipulates for the first instance when Ukrainian courts may initiate the proceedings and try cases with a foreign element the instance “if the parties chose the jurisdiction of Ukrainian courts over a case with a foreign element by their agreement”. The Hague Conventions on jurisdiction and children protection in which Ukraine is a party (Convention of October 19, 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children and Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance) concretize provisions of p. 1 Art. 76 of the Law of Ukraine on Private International and specify three variants of prorogation of jurisdiction in family-law matters.
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This article analyses the concept of the out of court mediation in Lithuanian administrative procedure, which has its own specifics, hence, in this range this method often cannot be applied in its classical form. The following features are attributable to the of the out of court mediation in administrative procedure: the parties have a limited freedom to influence the content of the agreement reached in mediation process, i. e. every arrangement reached during the mediation procedure must correspond to the criteria of legitimacy; the reached arrangements are directed to the public interest, not to the interests or needs of individuals; the participating parties are bound by the subordinate/jurisdiction intercourse; the pluralism of the dispute parties, meaning that the problems solved in the process of mediation relate to interests of undefined quantity of subjects, and all such subjects are usually involved in the mediation process as the concerned parties. The author of this article argues that the main development trends of the out of court mediation in Lithuanian administrative procedure are administrative disputes mediation and the out of court mediation as an administrative function of Lithuanian public subjects. The major problem of the administrative disputes mediation in Lithuania is incomplete regulation. Pursuant to the laws, only a few Lithuanian public authorities, such as the Chief Administrative Disputes Commission and the Seimas’ Ombudsmen, have the right to apply out of court mediation in order to settle administrative disputes. Nevertheless, the laws of Lithuania do not provide for the rules of the out of court mediation and the rights and obligations of the public authorities, which apply mediation procedure. Therefore, there is a risk of unlawful actions of public authorities, who have a right to act as mediators in the out of court mediation procedure. It should be also noted that the practice of public authorities, which shall apply out of court mediation in consumers disputes as it administrative function, is not the same. For instance, the Central bank of Lithuania settles disputes between consumers and financial market participants via out of court mediation. As statistics of the aforementioned disputes settlement mechanism shows, this mechanism is often used in order to settle disputes between consumers and financial market participants. However, for example, National Commission for Energy Control and Prices, which has a right to settle disputes between parties of energy sector via out of court mediation, has not received a single request to settle disputes via this alternative method. Therefore, the author of this article proposes to set the mandatory out of court mediation in the consumers’ disputes resolution.
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The article contains the analysis of several aspects of recent caselaw of the Court of Justice of the European Union concerning the protection of the fundamental rights to private and family life and to protection of personal data. The case-law analysed in this article is of great significance to the interpretation and application of the EU and national legislation and has drawn a lot of attention of legal practitioners and theorists and public media. In the first section of the article, the author focuses on the interpretation of certain notions by this court, such as the notion of personal data, processing of such data and its controller, given by the Court of Justice in its judgements in the cases C-293/12 and C-594/12 Digital Rights Ireland and Others, C-131/12 Google Spain and Google, and C-141/12 and C-372/12 YS and Others. The Court of Justice finds that those operations, which are referred to expressly and unconditionally in Directive 95/46/EC, must be classified as ‘processing’ of personal data. The operations referred to by Directive 95/46 must be classified as ‘processing’ even where they exclusively concern material that has already been published as it stands in the media. The Court holds that the notion of ‘controller’ in terms of Article 2(d) of the Directive 95/46 includes search engine operator, as the operator determines the purposes and means of the personal data processing activity. In the second section of this article, the rulings of the Court of Justice regarding the issues of interference with fundamental rights to private and family life and to protection of personal data, as well as the issues related to the justification of such interference, are analysed. In the judgement Google Spain and Google, the Court of Justice holds that by processing personal data the search engine operator interferes with the person’s rights and that the effect of such interference is heightened on account of the important role played by the internet and search engines in modern society. However, a fair balance should be sought between the legitimate interest of internet users to have access to the information containing personal data and the data subject’s fundamental rights. In the judgement Digital Rights Ireland and Others, the court ruled that Directive 2006/24/ EC was invalid, as it did not lay down any objective criterion of the access to and the use of the data of the electronic communications users, and the interference with the fundamental rights of these users could not be justified. The third section of the article concentrates on the independence of the supervisory authority for the personal data protection. In this section, the author analyses the judgement of the Court of Justice in the case C-288/12 Commission v Hungary, in which the Court declared that, by prematurely bringing to an end the term served by the supervisory authority for the protection of personal data, Hungary has failed to fulfil its obligations...
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Space tourism is going beyond the borders of people’s actual perception on the topic of human mass transportation from one place on the Earth to another, crossing different jurisdictions. A suborbital flight from London to Sydney will last 4 hours instead of taking 23 hours as it lasts today when traveling by airplane. Point to point suborbital flights (P2P flights) offer a new mode of worldwide mass transportation. Consequently, they should be legally regulated at an international level. The article analyzes selected safety concerns which can create obstacles to the development of a global legal framework regulating the safety of P2P flights. The selected provisions of the US Commercial Space Launch Amendment Act of 2004 are reviewed in order to analyze mistakes and avoid the same mistakes at the international level. The article specifies four main threats to safety which need to be resolved internationally: the lack of a definition for the term space passenger, the lack of unified spaceport safety standards, the growing amount of space debris and weaponization of outer space. Main international space treaties are analyzed as to their suitability for P2P flights. The fictional scenario provided in the article involves a claim for damages for death as a result of vehicle crash due to pilot error, which is used as an illustration of the applicability of one of the conventions: the Montreal Convention of 1999 (air law regime) or the Liability Convention of 1972 (space law regime). Liability regime created by the Liability Convention of 1972 is entirely focused on State-to State liability, thus, the state, as opposed to passengers or their relatives and third parties, is eligible for the compensation. In the same pattern, the state of origin will pay the compensation as opposed to the manufacturer or operator of the aerospace vehicle used in the suborbital flight .It seems that it is more reasonable for the point-to-point suborbital flights to fall under the passenger-oriented Montreal Convention of 1999. It is too remote to assess whether the Liability Convention of 1972 can be amended. In the last chapter of the article, there are some suggestions regarding comprehensive legal framework regulating the safety of P2P flights.
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Decentralization is mentioned in the Romanian Constitution of 1991 as a principle of public administration, without being defined. A framework-law was adopted only in 2004, after the revision of the Constitution, and it was entirely abrogated in 2006 by another framework-law. None of these laws have been fully applied, because they were made of general principles and of public policy statements. The article discusses the draft law on decentralization of 2013 that was declared unconstitutional by the Constitutional Court in January 2014. The Constitutional Court has developed in the Decision No. 1/2014 the argument that it has jurisdiction to decide not only on the unconstitutionality of the law, but also on the inconsistency between it and the legal framework. The Court relied on its previous jurisprudence and also on that of the ECHR and the CJEU and concluded that the draft law on decentralization “does not meet the constitutional requirements regarding the quality of the law”. Consequently, the account of decentralization, since the introduction of this concept in the Constitution of 1991 up to now, is extremely unsatisfactory. The transfer of powers from central to local levels, the essence of decentralization, was limited and was done mainly in a descriptive form of the competences of local authorities by the successive laws concerning the local administration. A gradual approach was preferred, extremely cautious regarding the implementation of decentralization. The European Charter on Local Autonomy, albeit transposed in Romanian law since 1997, had no influence on the drafting of two framework laws from 2004 and 2006, a rule that even the law from 2013 makes no exception to. The article describes how the principle of subsidiarity has been incomplete or faulty defined by these frameworks-laws and, consequently, it was impossible to apply it. Other principles, such as proportionality or consultation of local authorities on decisions that directly affect them, were not introduced in the Romanian legislation. Until the failed attempt to conduct the transfer of competences in 2013, an approach merely describing the principles and stages of decentralization was the option. There is also the option to specify from the very beginning which are the institutions which competences are to be transferred to a lower level due to decentralization. This alternative was avoided, probably due to the finding of a weak administrative capacity that causes decentralization to result in institutions that cannot exercise their powers invested with.
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Public function is carried out by all state and local institutions. The article deals with the question of legal regulation of financing of environmental protection measures at the local level in Lithuania. The current legislation states that the environmental protection shall be financed by the users of natural resources, the state government and the local governments. State and municipality funding for significant environment protection measures is allocated in accordance with the priority directions and programmes determined by the government. According to the Environmental Protection Act (Art. 30), the funds of the Special Municipal Environmental Protection Support Programmes as well as the Special Environmental Protection Programme implemented by the Ministry of Environment shall be supplementary sources of funding of environmental protection. The main sources of income of special programmes (such as environmental pollution tax, tax for utilisation of state natural resources, tax for use of wild animals, etc.), as well as the main trends and the order of usage of the funds of special programmes, are analysed in the article. The problem aspects of the legal regulation of special programmes (such as nontransmit of the increased environmental pollution tax to programmes, etc.) are raised in the article, too. Special attention is given to the question of control for usage of the means of special programmes. The law on the special programmes for the support of environmental protection of municipalities as well as other legal acts define a wide spectrum for the use of these funds, therefore, without effective control of allocation of funds and their use a part of funds are not distributed or are used inefficiently. The Ministry of Environment as the main control institution does not have sufficient information about the measures implemented within the special programmes for the support of environmental protection of municipalities and the funds used by those programmes, therefore, it cannot be sure if all the funds are used for the measures defined by the law. It is necessary to enhance a positive impact on the environment brought about by the special programmes for the support of environmental protection of municipalities, to ensure the publicity of allocation of funds and more efficient control of the use of funds.
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Regulatory authorities in the whole Europe are moving within the limits of administrative law, so they have to ask the question about the objective of their work and the functions fulfilled by the sanctions. We are analyzing the most important ones. One of the most important functions of media regulation is a prophylactic one. The second very important is if something appears in the broadcasting stream more or less only for a short period of time, but it does not mean that it cannot have devastating impact on civil, political and sexual ethics. That because they have the function to name this case. The naming function may be meaningful not only for the audience, but also for those preparing the program and it could lead to a prophylactic function. The naming function is also linked to the function to orientate the audience in the value system. The statements made by the regulatory authority may in this way reach the education. For media education it is in fact critical to get people oriented in the world of media, and to teach them to stay detached, not to damage their own and social values. Last but not least we often see people turning to the regulatory authority with their complaints that are not specified in any way, they do not show any interest in a response, they simply need to moan at the right place. Organizations, management, or political entities also use this ventilation function sometimes. So, the ventilation function acts as a safety valve. Nobody expects broadcasters to behave voluntarily and without exceptions in a way that no sanctions would need to be applied to their programs. It is expected that it would happen, but the broadcasters would select authorities from among themselves for the correction, which would supervise compliance with the jointly selected principles. It seems to be less reliable to create regulation from the “bottom”. This system is really attractive, but it also has its own and not negligible risks. There would also be someone responsible for “discipline and punishment” from the “top”. It is mainly for this reason that the regulation authorities are here.
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The right to make corrections and the right to reply – in some countries are these rights protected by their constitutions as the fundamental rights. These rights in Slovakia in case of the print media are guaranteed by the Press Law. The adoption of the law protecting the right to make corrections and the right to reply against the print media was strongly objected by the mass media as well as by the parliamentary political parties belonging to the opposition. The public discussion on the draft of the Press Law was managed in a misleading manner. No attention was paid to many issues of real relevance. Hence, the National Council (the Slovak parliament) approved the law which does not cover the legal status of foreign publishers and press agencies. The enforcement of right to make corrections and the right to reply is poor, if the obliged person ignores the entitled person with his/her requirement for publishing of the correction or the reply. A series of other issues identified within this paper are waiting for a binding interpretation by the competent governmental authorities in the phase of application of the Press Law. It is up to the judiciary within its case-law on right to make corrections and the right to reply.
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L’auteur étudie les droits de la personnalité dans une manière différente, plus large que celle utilisée habituellement dans la doctrine. Il propose un concept unitaire – Lex Personalitatis – dans le but de réunir toutes les prérogatives de l’individu sur l’image, l’identité, l’intimité, la vie privé. Le fondement du Lex Personalitatis est le droit de l’être humaine de développer librement, plenièrement, sa personnalité. Dans une définition des termes, Lex Personalitatis est plus large que la notion „droits de la personnalité” et peut être rechercher sur deux plans: droit fondamental (ius personalitatis) et, le même temps, élément du Lex Informatica. Dans la société de l’information, Lex personalitatis constitue une garantie de la confidentialité et un instrument indispensable d’une personnalité connecté aux nouvelles technologies.
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E-invoice. This term, borned in 1990, is today a reality for a lot of companies. It’s a way to realize economies and improve the in-house process. Nevertheless, leading a such project is a long way because of the technical and legal specifications. Going in a no-paper process requires a strong knowledge regarding the electronic signature. We would like to present an introduction of the mains obligations the companies have to comply with under the law of France & Switzerland.
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