Прекратяване на наказателното производство от първоинстанционния съд по дела от общ характер на основание чл. 24, ал. 1, т. 5 НПК и съответствието му с правото на Европейския съюз

Author(s): Debora Valkova-Terzieva / Language(s): Bulgarian Issue: 2/2021

The subject of this research is a specific prerequisite for the termination of criminal proceedings in public criminal cases, regulated in Article 24, Paragraph 1, Item 5 of the Bulgarian Code of Criminal Procedure. This analysis was necessitated by the fact that the European Union had introduced certain obligations for the Member States.

Нови инструменти за международно правно сътрудничество по наказателни дела от 1970-те години. Конвенция за предаване на лица, осъдени на лишаване от свобода, за изтърпяване на наказанието в държавата, чиито граждани са – исторически и правни аспекти

Author(s): Elena Vicheva / Language(s): Bulgarian Issue: 2/2022

This article outlines the history, the nature and the philosophy behind the multilateral transfer agreement signed in Berlin on 19 May 1978 between some socialist countries including Bulgaria (the Berlin Convention). The last part of the article is devoted to the evaluation of the Berlin Convention and its relevance to the present day.

Стандарти при прилагането на Европейската конвенция за защита правата на човека при приобщаването на частни видеозаписи в наказателното производство

Author(s): Gergana Ivanova / Language(s): Bulgarian Issue: 2/2022

The article is focused on the conflict between private video recordings as evidence in criminal proceedings and the right to privacy within the meaning of Art. 8, para. 2 of the European Convention on Human Rights. As regards the scope of the monitoring, the need for a study is due to the lack of uniform standards in the treatment of such records. In this sense, the study of the ECHR’s case law is vital to deriving a catalogue of criteria for their admissibility as evidence in the process and to raising awareness of citizens about the permissible violation of their right not to be monitored without their consent.

THE MISSING POST-HOLOCAUST TRACES IN RECENT CASE LAW OF THE EUROPEAN COURTS

Author(s): Aleksandra Gliszczyńska-Grabias / Language(s): English Issue: 41/2021

The Holocaust constitutes one of the most powerful symbols in the history of humankind. Its memory, and in particular its irrefutable relationship with anti-Semitism, should trigger strict scrutiny every time anti-Semitic attitudes re-emerge, even if disguised as seemingly harmless words or actions. This applies also to legal measures,neutral on their face but which, in their consequences, may have an adverse effect on Jews, and thus raise the suspicion of anti-Semitic implications. Such implications are visible in the recent phenomena that serve as the two case studies for the present article:boycotts of Israel and bans on ritual slaughter (Shechita). While in the case of anti-Israeli boycotts, the core arguments relate to international anti-discrimination law and policies, in relations to the Shechita bans claims about violation of the religiousfreedom of observant Jews prevail. At the same time, in both cases strong references to the Holocaust and the memory of its victims are being invoked, allowing one to raise objections as to the status of the relevant legal developments. Here again history and memory enter into the public and legal discussions, legislative processes, and courtrooms.

Love Letters as Evidence in Court: The Case of Rhinelander Versus Rhinelander

Author(s): Adriana Chakarova / Language(s): English Issue: 2/2022

The case of Rhinelander Versus Rhinelander was widely publicized in the early twentieth century. The defendant Alice Rhinelander hardly suspected that her letters would be read by anyone but their addressee, let alone get examined in court. The plaintiff side tried to prove that Alice had purposefully made steps to get Leonard Kip Rhinelander to marry her, including quoting many of her hundreds of letters to him. Under the plaintiff’s interpretation, her words seemed to reveal her as scheming, lustful, threatening, cajoling, and ambitious. With the case making headlines and attracting national attention, Alice’s love letters were subject to scrutiny and interpretation. The plaintiff’s lawyer carefully constructed the case around the prevalent stereotypes of the time, playing upon certain deeply-ingrained notions related to race and gender roles. The attempt was to track Alice’s plot to ensnare her husband through her letters and create an image of her that would easily be accepted by the public (and an all-white, all-male jury), based on their expecta¬tions with respect to a woman of color. Even though her exposed letters provided ample evidence for Leonard’s lawyer to use against her, her own counselor gave just as good a retaliation, expos-ing Leonard as a coward for permitting the letters to get into his lawyer’s hands.

Jurisprudența Curții Europene a Drepturilor Omului: cauze împotriva Rusiei, perioada ianuarie – martie 2023

Author(s): NRHR NRDO / Language(s): Romanian Issue: 1/2023

Fedotova și alții c Rusiei (cererile nr. 40792/10, 30538/14 și 43439/10). Protejarea vieții private și de familie (art. 8 din Convenție) Hotărârea din 17.01.2023 Kutayev c. Rusiei (cererea nr. 17912/15) Interzicerea torturii, a tratamentelor inumane sau degradante (art. 3), dreptul la libertate și securitate (art. 5 § 1, dreptul la un proces echitabil (art. 6) și limitarea utilizării restricțiilor asupra drepturilor (art. 18) coroborate cu articolul 5 Hotărârea din 24.01.2023. Svetova și Alții c. Rusiei (cererea nr. 54714/17) Dreptul la libertatea de exprimare (art. 10, art. 13 coroborat cu Art. 8. (Art. 6) Hotărârea din 24.01.2023. Kreyndlin și alții c. Rusiei (cererea nr. 33470/18) Interzicerea tratamentelor inumane sau degradante (art. 3) și interzicerea discriminării (art. 14) Hotărârea din 31.01.2023. B. c. Rusiei (cererea nr. 36328/20) Interzicerea torturii și a tratamentelor inumane sau degradante (art. 3) Hotărârea din 7.02.2023 Kogan și alții c. Rusiei (cererea nr. 54003/20) Dreptul la respectarea vieții private și de familie (art. 8) și limitarea utilizării restricțiilor de drepturi (art. 18) coroborat cu articolul 8. Hotărârea din 07.03.2023. Mamasakhlisi și alții c. Georgiei și Rusiei (cererea nr. 29999/04 și 41424/04) Interzicerea tratamentelor inumane sau degradante (art. 3), dreptul la libertate și securitate (art. 5 § 1(a)(c)), dreptul la un proces echitabil (art. 6 §§ 1 și 3 litera (c)) Data 7.03.2023.

Sinteza hotărârilor în materie fiscală pronunțate de Curtea de Justiție a Uniunii Europene în perioada martie-aprilie 2023

Author(s): Not Specified Author / Language(s): Romanian Issue: 2/2023

Hotărârea Curții de Justiție a Uniunii Europene din data de 2 martie 2023 în cauza C-664/22; Hotărârea Curții de Justiție a Uniunii Europene din data de 9 martie 2023 în cauza C-239/22; Hotărârea Curții de Justiție a Uniunii Europene din data de 9 martie 2023 în cauza C-42/22; Hotărârea Curții de Justiție a Uniunii Europene din data de 9 martie 2023 în cauza C-571/21; Hotărârea Curții de Justiție a Uniunii Europene din data de 23 martie 2023 în cauza C-412/21; Hotărârea Curții de Justiție a Uniunii Europene din data de 30 martie 2023 în cauza C-616/21; Hotărârea Curții de Justiție a Uniunii Europene din data de 30 martie 2023 în cauza C-616/21; Hotărârea Curții de Justiție a Uniunii Europene din data de 20 aprilie 2023 în cauza C-282/22; Hotărârea Curții de Justiție a Uniunii Europene din data de 27 aprilie 2023 în cauza C-677/21

СЪДЕБНИ ТЕХНИЧЕСКИ ЕКСПЕРТИЗИ НА iOS МОБИЛНИ УСТРОЙСТВА

Author(s): Silvija Letskovska,Kamen Seymenliyski,Georgi Rachev,Eldar Zaerov / Language(s): Bulgarian Issue: 1/2022

The mobile device is now a part of our life and is a huge repository that stores sensitive and personal information about its owner. Because of this, mobile devices have become an object of study in forensics. A branch of digital forensics has been created that deals with the extraction of data from a mobile device. The aim of the present study is to investigate the methodology for extracting information from a digital device without changing the data present on it.

Sinteză de Jurisprudență Fiscală Națoonală septembrie – octombrie

Author(s): Cosmin Flavius Costaş / Language(s): Romanian Issue: 5/2022

Following the Constitutional Court’s Decision no. 102 of 17 February 2021, Romanian criminal courts were rather disoriented as to the reception, in criminal trials, of final judgements from parallel procedures, such as the tax procedure. Although the European Court of Human Rights ruled in 2014 in the Lungu and others case that final judgments of other national courts on the same issue must not be disregarded, criminal judges paid no respect to the principles of legal certainty and ne bis in idem. Therefore, the recent judgment of the Pitești Court of Appeal, confirming an earlier judgement of the Vâlcea Tribunal, is probably the first criminal judgment to apply correctly the above-mentioned principles/ Cluj Court of Appeal recently misjudged in a case regarding the contribution due under Law no. 448/2006 by legal persons with more than 50 employees, which are under an obligation to employ at least 4% of their total staff disabled persons. The question arised in a tax audit as to the mathematical interpretation of reduced work loads, which the tax authority. There are significant arguments as to the interpretation that a reduced work load still qualifies for a full employee when counted under Law no. 448/2006.

The impact of the clash between the CJEU Case Law concerning rule of law and the Constitutional Court in Romania on the criminal legislation, investigation and fight against corruption

Author(s): Dragoş-Lucian Ivan,Teodor Manea / Language(s): English Issue: 8/2022

This scientific research shall explore the recent jurisprudence of the Court of Justice of the EU on the rule of law regarding Poland, Hungary and Romania. We shall strive to identify the nexus between the ground-breaking judgments and the prospects for criminal legislation and criminal investigation by analysing the arguments of the parties and the reasoning of the courts. We believe that judgements in the cases of Poland, Hungary and Romania represent the Court of Justice’s incrementalist response to a perceived process of rule of law backsliding which was perceived as a threat to EU values at the community level and as a threat to the ability of the justice system to prevent corruption at the national level. Backsliding is believed to first emerged in Hungary before spreading to Poland, but serious cases were already existing in Romania.

Решенията на Европейския съд по правата на човека срещу България относно дела за дребно хулиганство

Author(s): Gergana Krasteva / Language(s): English,Bulgarian Issue: 1/2023

This article is dedicated to the decisions of the European Court of Human Rights against Bulgaria regarding cases of minor hooliganism. Its purpose is to investigate whether and how these cases have contributed to the Bulgarian national legislation and criminal jurisdiction. In addition, it aims to examine Bulgarian courts’ violations of the European Convention of Human Rights in their ruling in cases of minor hooliganism, and to suggest approaches for their prevention.

Sąd Marynarki Wojennej w Gdyni – wybrane sylwetki sędziów, którzy dopuścili się zbrodni sądowych

Author(s): Helena Kowalska / Language(s): Polish Issue: 2/2022

The article titled “Navy Court in Gdynia – profiles of selected judges who committed court crimes” is about a history of this court and changes that were being made in the court’s characteristic and the reasons behind these adjustments. Next, the article presents the role of the Navy Court in repressions across the Eastern and West Pomerania. The study also shows the important issue of case law, especially of political trials and death sentences passed. The article discusses a problem of cooperation between the Navy Court, secret political police, the Navy Prosecutor’s Office and the Navy Bar. The range of these institutions’ activities is presented in the study as well as the mechanisms of putting pressure on the Navy Court by secret political police and the Navy’s information office. The article shows the meaning of the Navy Prosecutor’s Office in preliminary proceedings and presents the profiles of some of the most important prosecutors who worked in the Navy Prosecutor’s Office. The main part of the article is devoted to the profiles of judges and associated judges who worked in the Navy Court during the years 1945–1955. Profiles of people that were in charge of the Court have been described in detail. The article shows their influence on ruling and the way they controlled the Navy Court. Furthermore, the study presents the education of twenty judges and associated judges, their ruling activity and further professional life. The career of judges who played the most important role in creating the case law of the Navy Court is presented in a more detailed way. Moreover, an issue of appraising the judges’ activity during their work in the Navy Court is also mentioned in the article.

Процесуальні форми захисту права на підприємництво в адміністративних судах: проблематика наукового підходу

Author(s): Vasyl Rіabchenko / Language(s): Ukrainian Issue: 161/2023

The topicality is due to the active development of the system of administrative proceedings and at the same time the need to take into account the specifics of the mentioned cases (increased requirements for the promptness of the case review; the accuracy of the definition of individual elements of procedural forms; the need for the administrative court to apply special knowledge in the field of economics). The purpose of the article is to reveal a scientific approach to the development of procedural forms of protection of the right to entrepreneurship in administrative courts, to determine, on the basis of this, the vectors of further development of procedural forms of protection of the specified right. Achieving the outlined goal became possible thanks to the use of a complex of methods of both general scientific and specifically legal nature. Thus, with the use of the formal-dogmatic method, the content of the applied concepts and categories was clarified, including such concepts as "proceedings", "administrative proceedings", "procedural form". The dialectical method made it possible to take into account the general principles of the development of the administrative justice system. On the basis of the combination of this method and the method of synthesis, the current problems of the studied procedural forms are summarized. These and other research methods are applied taking into account the requirements of scientific objectivity. The problem of the ratio of the ratio of the specific procedures for consideration of certain categories of administrative cases and the general forms of legal proceedings is revealed from the standpoint of the dichotomy of the legal nature of the activity of the administrative court (declarative and interventional). Accordingly, the contentiousness of the issue regarding the possibility of calling such specific procedures procedural forms of review and resolution by the administrative court of the considered category of cases was determined. Based on the results of the research, conclusions were formulated and recommendations were made regarding the development of a generalized concept of "procedural form", which would combine the common features of general legal proceedings and simplified legal proceedings in this category of cases. This will make it possible to conduct a further study of the specified common features using a single legal construction.

Відповідальність за порушення обов’язку піклування та виховання у Кримінальному кодексі Федеративної Республіки

Author(s): Oleksiy Zaytsev,Kateryna Pavshuk / Language(s): Ukrainian Issue: 161/2023

The relevance of the topic of research is determined by the fact that the problem of non-fulfillment or improper fulfillment by parents (persons who replace them) of childcare responsibilities exists in all countries, regardless of the form of government, state system and income level of the population. Ukraine is in the process of integration with the European Union, so it is useful to study the foreign legislative approach to regulating responsibility for the violation of these obligations. The aim of the article is to study the German experience of establishing criminal liability for non-fulfillment of childcare obligations. Dogmatic, systemic-structural, statistical, historical-legal, formal-legal research methods were used in the research. Attention is paid to German legislation, which provides for the right and duty of parents to care for and bring up children. The genesis of the criminal law regarding the liability for violation of these duties is given. Statistical data on the number of criminal proceedings and persons convicted of this criminal offense (2010–2021) are summarized. The peculiarities of the structure of the crime provided for in § 171 of the Criminal Code of the Federal Republic of Germany have been studied; objective and subjective characteristics. The analysis was carried out on the basis of the doctrine of German criminal law and the practice of courts of general jurisdiction, in particular the Federal Supreme Court of Germany. The practice of the Federal Constitutional Court of Germany was used. Based on the study, conclusions were formulated regarding the definition of: the legal interest that is protected; signs of "gross" violation of duties; criteria for establishing the consequence of the crime, which is provided as the tort of creating danger. The peculiarities of the qualification of the crime in case of its commission in a place where an armed conflict is taking place are noted. The allocation of an independent structural section (subsection) in the Criminal Code of Ukraine, which includes criminal offenses against family, is supported. The discussion of the criminalization of harm caused by a crime provided by Art. 166 of the Criminal Code of Ukraine, creating a real threat (danger) of causing harm to the victim is proposed.

The Responsibility of Notary in Making Nominee Agreements for Foreign Citizens in Indonesia

Author(s): Ali Masum,Sulistyandari Sulistyandari,Tri L. Prihatinah / Language(s): English Issue: 161/2023

Law Number 5 of 1960 concerning Basic Agrarian Principles in Article 2 states that every Indonesian citizen has full rights over land, water, and airspace located in Indonesia, so only Indonesian citizens are entitled to have ownership rights over land in Indonesia. This is a principle of nationalism in agrarian law. Foreigners who are in Indonesia are only entitled to land use rights in Indonesia. This regulation sometimes poses difficulties for foreign nationals who want to invest in Indonesia, due to the requirement of land ownership in Indonesia not being fulfilled. This obstacle causes some parties to take illegal actions in land ownership in Indonesia, one of which is by making a nominee agreement. However, nominee agreements in Indonesia have not been clearly regulated in legislation. The issues raised in this research are the validity of nominee agreements according to the Civil Code and Basic Agrarian Law, as well as the role and responsibility of notaries in making nominee agreements, using the case study of the verdict of the Denpasar District Court Number 426/Pdt.G/2020/PN Dps. To answer these issues, normative juridical research method with prescriptive research method is used. The result of the analysis and research is to analyze the nominee agreement and its validity from the perspective of the Civil Code and Basic Agrarian Law. In addition, it analyzes the role and responsibility of notaries in nominee agreements with a case study in the verdict of the Denpasar District Court Number 426/Pdt.G/2020/PN Dps. The suggestion given is that notaries in making a legal product should pay attention to the applicable legal foundations in Indonesia so that the resulting deed is in accordance with the legislation in Indonesia.

ЗАКОНОДАВНО ДЈЕЛОВАЊЕ УСТАВНОГ СУДА - УСТАВНИ СУД КАО НЕГАТИВНИ ЗАКОНОДАВАЦ

Author(s): Marko Majkić / Language(s): Serbian Issue: 44/2022

The basic function of the constitutional court is, by definition, normative control, that is, control of the constitutionality of normative acts. By performing its basic function, i.e. performing normative control, first of all control of the constitutionality of laws as general legal acts, i.e. deciding on their compliance with the constitution, the constitutional court protects constitutionality (and legality) as the highest principles on which the rule of law and democratic social-political order rest. However, by declaring the law unconstitutional and preventing its existence in the legal order, the constitutional court also performs legislative action and thus becomes an agent of the legislative power. The legislative action of the constitutional court is peculiar and does not represent legislation in its traditionalist understanding as a function of state power. However, by canceling the unconstitutional law, the constitutional court becomes an agent of the creation of the legal system and becomes a negative legislator, as opposed to the parliament as a positive legislator. In accordance with the above, in this paper we will refer to the position of the constitutional court as a negative legislator as the most important aspect of its legislative activity.

ОДЛУКЕ СУДА ПОВОДОМ ПРИГОВОРА ТРЕЋЕГ ЛИЦА

Author(s): Stefan Miškić / Language(s): Serbian Issue: 44/2022

A third party who claims that they have a right to prevent enforcement proceedings, according to the rules of the enforcement procedure, has the possibility of using legal means to protect their rights. The most prominent legal remedy used by a third party is the objection of a third party. By declaring the objection before the executive court, the procedure for the protection of the threatened rights of the third party is initiated, and the executive court renders a decision regarding the objection. Rulings by the executive court regarding the objection of a third party can be seen as decisions by which the objection of a third party is accepted, but also as rulings by which the objection of a third party is rejected or dismissed. Depending on the ruling of the executive court, the third party is affected by certain legal consequences, and these same consequences can have their effect and influence the very course of the executive procedure, regarding which the third party has filed an objection. This paper will analyze the rulings that the executive court can make regarding the legal remedy – objection of a third party, the consequences and changes that affect the third party whose right is threatened, as well as the parties in the enforcement procedure, but also what is the nemesis of the enforcement procedure, depending on the executive court’s ruling. The analysis of the current judicial practice will be carried out, then, by comparing the theoretical positions and judicial practice of the home state and surrounding countries made on the objection of a third party.

ПРАКСА УСТАВНОГ СУДА РЕПУБЛИКЕ СРПСКЕ

Author(s): / Language(s): Serbian Issue: 44/2022

Одлука број: У-44/20 од 26. мај 2021. године Службени гласник Републике Српске, број 51/21

ПРАКСА УСТАВНОГ СУДА БОСНЕ И ХЕРЦЕГОВИНЕ

Author(s): / Language(s): Serbian Issue: 43/2021

Despre discriminare în America: servicii expresive pentru căsătoriile gay și măsuri pozitive pentru universități în două decizii recente ale Curții Supreme a SUA

Author(s): Liviu Andreescu / Language(s): Romanian Issue: 2/2023

The article discusses two recent decisions – summer of 2003 – by the Supreme Court of the United States: Students for Fair Admissions v. Harvard and 303 Creative v. Elenis. It presents their context, summarizes the Court’s majority opinion and some of the dissenting opinions, and anticipates their likely implications. The article’s target audience are Romanian professionals interested in questions of discrimination, as well as in American government and politics more generally.