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The High Judicial Council is established by the Serbian Constitution of 2006 and the High Judicial Council Act of 2008 as an independent and autonomous body that ensures the independence and autonomy of courts and judges. This judicial body should represent the balance between the judicial, legislative and executive powers, as well as curbing the influence of the legislative and executive powers. According to legislation in force all members of the first composition of the High Judicial Council are elected, either directly or indirectly by the legislative body, namely the National Assembly of Serbia, instead of being elected by the judicial power. Elective members of the Council, namely the law faculty professor and the representative of barristers as representatives of independent groups, are elected by the National Assembly. Six judges (elective members of the High Judicial Council) are not elected by fellow judges though democratic means as in compliance with international standards, but by the National Assembly. There is no independent judiciary without the independent election of judges who are members of the judicial council. Members by the virtue of their office, namely the president of the High Judicial Council, the president of the board in charge and the minister of justice are indirectly elected by the National Assembly. According to international standards the members by the virtue of their office should not be actively engaged in politics since their participation may lead to politicisation of the courts and raise doubts in the impartial and autonomous work of judges.
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Romania’s justice system is in trouble, and public distrust has reached a critical level. But is this situation due to the system itself, or is it rather triggered by a tradition of political interventionism in justice affairs? As the Legal section argues, in reforming the justice, the process followed is just as important as the ends, and unless political interference is brought to an end, it is hard to see how the justice system could be empowered to fulfill its normal role in a democracy. The forthcoming changes in the Constitution represent a good opportunity to take a step in the right direction, but is there enough political will to do it?
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The study examines the situation of the real estate enforcement started by the bailiff following the order to establish a preventive seizure, issued during a criminal trial, in relation to the debtor’s property. This action taken by the criminal prosecution authority is aimed at protecting the civil party, or may facilitate the enforcement of the legal provisions regarding the special seizure or the guarantee of enforcing the penalty of fine when the court of law applies this penalty to the defendant. The question we are trying to answer to is the following: can an immovable asset preventively seized earlier by a prosecutor or a court of law during a criminal trial in progress be sold in a public tender by the bailiff?
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Although, at present, the institution of the approval of enforcement has been reintroduced, the possibility of challenging the decision of admitting the approval by a challenge to enforcement has not been regulated as well. Consequently, de lege lata, such a possibility represents an action that has no explicit legal ground. Moreover, the application for approval of enforcement for each separate form of enforcement, as well as the restriction of the effects of the ruling on approving the enforcement, issued by a trial court, to the jurisdiction of such trial court represent serious obstacles to the carrying on of a flexible enforcement procedure. Another practical obstacle occurs in case of the simultaneous prosecution of the debtor’s assets in different enforcement files, situation when the original enforcement order must be submitted to one or several bailiff offices. Moreover, the action of the enforcement courts requiring, for the approval of enforcement, that the bailiff makes the proof that the debtor owns assets in the jurisdiction of the trial court from which approval is requested, is also wrong.
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The incidence of Article 6 of the European Convention on Human Rights in the matter of enforcement has been acknowledged constantly by the Strasbourg Court, which has assessed that the enforcement of the decision issued by a court is integral part of the “notion of trial”. The Court has established that the right to the enforcement of final decisions does not involve the State’s obligation to ensure the actual enforcement of each decision in civil matters no matter the circumstances. It is the responsibility of each contracting State to create an adequate and sufficient legal arsenal in order to ensure compliance with the positive obligations falling upon it. The Court’s task is only to examine if, in the actual case, the actions taken by the State authorities, in the domestic legal framework, were adequate and sufficient for meeting the purpose intended. In case the obligation found by the enforcement order falls upon the State or a public authority itself, the European Court of Human Rights has noted, in its case law, on the one hand, that it is excessive to request the creditor to start the enforcement procedure against the State or the public authority. On the other hand, unlike the enforcement against a private person, the Court does not acknowledge to the State and to its authorities the possibility of insolvency as reason for refusal or delay in enforcement.
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In the Romanian law, the procedure of tacit agreement is regulated by the Government of Romania Emergency Ordinance no. 27/2003, approved with amendments and supplements by Law no. 486/20031), legislation adopted during the effective period of Law no. 29/1990 on administrative litigation and prior the adoption of Law no. 554/2004 on administrative litigation, as amended and supplemented by Law no. 262/20072). As specified in art. 1 of the Ordinance, the main purpose of this piece of legislation is to remove the administrative barriers in the business environment, as well as to fight corruption by reducing the arbitrary in the decision of the administration. In considering the purpose for which this piece of legislation was enacted, its subject matter is the regulation of the tacit agreement procedure as an alternative way of issuing or renewing the authorizations issued by the public administration authorities, except for those issued in the field of nuclear activities, those regarding the system of firearms, ammunition and explosives, the system of drugs and precursors, as well as the authorizations in the field of national security.
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The enforcement order is the fact-finding document regarding the debtor’s payment liability, drawn up according to the legal provisions, which is in the creditor’s possession and enables the latter to carry on the enforcement of the debtor for meeting the liability established for such debtor by the court or by another relevant authority. De lege lata, except for judgments, there is a very broad range of enforcement orders regulated by special laws. The law is the only one that may grant enforceability to a document, thus becoming a document enabling enforcement. The contracting parties may not derogate by their agreement from the mandatory provisions of the applicable law and may not grant enforceability to an agreement, by expression of their will.
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Analyzing archive materials, mostly written in Latin alphabet, legal historians and romanists have come to a conclusion that the hereditary legal institutes treated, as welll as other institutes of the private law of the southern Adriatic communes, had a feature undertaken mainly from the classical roman Law, or recepted ius communae. Some deviations were present to a less or greater extent, and reflected direct and indirect influences of Slavic and Byzantine law that were coming from the Balkan Peninsula’s inland to coastal centres. Further investigations on detailed sources of many issues are needed to make a mosaic of the dominant influences on the formation of Medieval private law in Adriatic coastal towns. This paper is a contiunation of my research on the institute of testament in Medieval Cattaro, and it is related to the analysis of the statutory provisions on testing freedom and obliged testaments forms, as well as the application of these form in order to determine a real influence and significance of the classical Roman law and similar ones, developed later on its normative arrangement and real legal life.
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Wyrok Sądu Konstytucyjnego Republiki Węgierskiej w sprawie konstytucyjności ciszy wyborczej oraz ośmiodniowego zakazu publikacji przedwyborczych sondaży opinii publicznej (sygn. 6/2007 (II. 27.) AB)
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preliminiary remarks of the author Uwe Wesel preceding the reviw of his book Frühformen des Rechts in vorstaatlichen Gesellschaften – Umrisse einer Frühgeschichte des Rechts bei Sammlern und Jägern und akephalen Ackerbauern und Hirten, Suhrkamp Verlag Frankfurt, 1985. The review itself by Marie Theres Fögen follows on pages 21-23 of the same issue
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