ENTITIES OD LOCAL SELF-GOVERNMENT AS POSSIBLE HOLDERS OF HUMAN RIGHTS

Author(s): Boštjan Tratar / Language(s): English Issue: 40/2018

In this article, with the help of the scientific method of comparison and analysis, the author shows the judicial practice in relation to the position of municipalities and other local self-government units that are public legal entities as possible bearers of human rights. As a rule, these units of local self-government share the principle position of legal entities, which the legal order recognizes (only) as addressees of human rights, but not as holders. From the federal court jurisprudence of some European countries (Germany, Liechtenstein, Switzerland), especially Slovenia, and the United States of America, as representatives of the Anglo-Saxon system, it follows that local communities are recognized or exercise the so-called procedural human rights (because here no connection with the exercise of individual dignity is required) and property rights or the right to submit the so-called communal constitutional appeals when it comes to the protection of local self-government against unconstitutional encroachment on the constitutional right of local self-government. The author believes that the development of municipal ownership is related to human rights, i.e. the municipality as the bearer of human rights, often legally conditioned.

DONATION IN PROSPECT OF DEATH (DONATIO MORTIS CAUSA)

Author(s): Đorđe Raković / Language(s): English Issue: 40/2018

A death gift is a legal business with a long legal tradition. Along with testament and legatee, it has its roots in Roman law. In different European periods of the development of Roman law, the donatio morits causa had different legal nature, but the dominant one was the one created in Justinian's law, where a gift in case of death was considered a legate. It was a charitable disposition of the donor with the intention of gifting the recipient, which produced a legal effect after the death of the donor, but only on the condition that the recipient outlives the donor. As such, the donatio morits causa was, as a rule, revocable. The contentious legal nature marked the further development of death gifts. Thus, the AGZ accepted the dual nature of the gift in case of death as both a legacy and a gift contract, while the SGZ accepted the Roman concept. A different interpretation has been maintained to this day because the gift in the event of death is not regulated by positive regulations, either under obligation law or under inheritance law. It is generally considered that a death gift is a type of inter vivos gift contract where the delivery of the object of the gift is delayed until the time of the death of the donor. It is a gift contract concluded under a suspensive condition that arises at the time of the death of the donor, and the condition is not that the recipient outlives the donor. If the recipient dies before the donor, his heirs have the right to demand the delivery of the gift. A gift contract in the event of death understood as a contract is, as a rule, irrevocable.

НЕИЗВРШЕЊЕ СУДСКИХ ОДЛУКА ПРОТИВ ДРЖАВЕ: ПРАКСА ЕВРОПСКОГ СУДА ЗА ЉУДКСА ПРАВА

Author(s): Igor Popović / Language(s): Serbian Issue: 40/2018

The paper analyzes how and in what way non-execution of domestic court decisions against the state affects human rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. The rights affected by this state action are the right to a fair trial and the right to property. In addition to them, the question of the absence of an effective legal remedy in such cases will often arise. The practice of the European Court of Human Rights shows that states enjoy a certain field of discretion and can delay execution for certain reasons. At the same time, the lack of funds for execution on the part of the state is not a valid reason to justify non-execution. The same applies to complicated legislation because the state itself created such a legal framework. The first and what seems to be the most important cases for the subject of this paper are the cases against Russia and Ukraine, in which certain principles were established that are applied in similar cases. Finally, it is important to determine how long the state can delay execution. Jurisprudence shows that a delay of up to eight months can be considered reasonable, if it concerns rights that are not of particular importance to individuals. If, however, it concerns rights that are extremely important for individuals (eg rights related to home and housing), then this period will be shorter, and a delay of even six months will be considered unreasonably long

NEW FACTS AND NEW EVIDENCE AS THE BASIS FOR REOPENING AN ADMINISTRATIVE DISPUTE IN THE REPUBLIC OF SRPSKA

Author(s): Dražen Miljić / Language(s): English Issue: 40/2018

According to the Law on Administrative Disputes of the Republika Srpska, new facts and new evidence represent a legal basis that provides the opportunity for dissatisfied parties to demand a repetition of the administrative dispute even after final court decisions. However, although the parties justifiably and often resort to this legal means, in practice its application is rarely allowed. The paper tries to explain the causes of such behavior.

A PROPERTY CLAIM IN A SUMMARY PENALTY ORDER

Author(s): Radenko Janković / Language(s): English Issue: 40/2018

According to the Law on Administrative Disputes of the Republika Srpska, new facts and new evidence represent a legal basis that provides the opportunity for dissatisfied parties to demand a repetition of the administrative dispute even after final court decisions. However, although the parties justifiably and often resort to this legal means, in practice its application is rarely allowed. The paper tries to explain the causes of such behavior.

PROTECTION OF TRADEMARK RIGHTS

Author(s): Milica J. Čizmovic / Language(s): English Issue: 40/2018

The administrative legal protection of trademarks is reflected in the imposition of administrative legal-administrative measures against persons who have violated trademark rights, but also in the supervision of the implementation of regulations directly related to trademark rights. Customs plays an important role in the implementation of intellectual property rights protection measures. The legal regulations of the member states of the European Union and the "TRIPS" agreement regulate in detail the implementation of customs supervision in order to prevent infringement of trademark rights. In order to ensure the efficiency of the work of the customs services in order to prevent and fight against piracy and counterfeiting across state borders, it is necessary to have an effective system of protection, its implementation in practice and the existence of a database of registered trademarks available to customs officials. A special form of administrative supervision is achieved through inspection supervision. Through inspection supervision, control over the implementation of laws, by-laws and other regulations that are directly or indirectly related to trademark infringement is achieved, all with the aim of preserving constitutionality and legality. The Trademark Law also contains provisions that regulate the issue of misdemeanor trademark protection, as one of the types of criminal sanctions in the event of a violation of trademark rights. Although the issue of the criminal law protection of trademark rights in the legislation of Bosnia and Herzegovina is characterized as a new area, and the number of court decisions is relatively small to be able to talk about relevant judicial practice, Bosnia and Herzegovina in a normative sense does not lag behind the countries in the environment whose experience in the field of protection rights lasts longer and whose number of court decisions in this area is greater.

Diagnoza strategiczna – analiza zagadnienia na przykładzie strategii rozwoju gminy

Author(s): Mateusz Kowalewski / Language(s): Polish Issue: 18/2023

The primary objective of strategic diagnosis is to identify the most important features, resources, potentials, local problems and its environment for the purpose of planning a long-term development policy. In 2020, legislative changes were introduced that regulated issues related to strategic diagnosis. Article 10a of the Act on the principles of conducting development policy provides that the entity developing the draft development strategy prepares a diagnosis of the social and economic situation and spatial, taking into account functional areas, including functional urban areas. The legislator does not leave the entities developing the draft development strategy free to choose the areas that should be diagnosed. In addition, in Article 10e(3) of the Act on Local Self-Government, the Legislator indicated that municipality’s development strategy contains conclusions from the diagnosis referred to in the above-mentioned Article 10a. The legislator did not specify how the diagnosis should proceed, nor did it specify the date within which it should be carried out. The article aims to determine: 1) what a strategic diagnosis is, 2) what is its significance when creating a commune development strategy, 3) whether the scope and layout of the diagnosis has been clearly defined.

Sprawozdanie z Dnia Administratywisty zorganizowanego na Wydziale Prawa i Administracji Uniwersytetu Szczecińskiego w dniu 25 kwietnia 2023 roku

Author(s): Katarzyna Żurowska / Language(s): English Issue: 18/2023

Conferința Națională „Contenciosul administrativ” – Universitatea din Oradea, 8 decembrie 2023

Author(s): Verginia Vedinas / Language(s): Romanian Issue: 04/2023

În ziua de 8 decembrie 2023, s-au desfășurat, la Oradea, lucrările ediției a IV-a a Conferinței naționale de Contencios administrativ, organizată de Facultatea de Drept a Universității din Oradea.

Czy prawu potrzebny jest heros? Reinterpretacja sędziego- -Herkulesa w świetle myśli starożytnej

Author(s): Anna Ceglarska / Language(s): Polish Issue: 41 (5)/2022

In his work “Law’s Empire”, Ronald Dworkin made the famous comparison that the judge should be like the mythical Hercules. In the modern interpretation, we most often follow the path mapped out by Rawls and Habermas, understanding the judge-Hercules as someone undertaking a heroic effort to discover the only right and true solution to the case. These considerations, however, very often overlook an extremely important aspect. Namely, the attempt to understand and interpret the figure of Hercules, and more broadly – heroes. This article aims at reinterpreting the character of the hero – and thus the judge – by returning to the ancient pattern. By returning to the roots and the ancient way of understanding the hero, it is also possible to better understand contemporary disputes, especially those related to judicial activism and differences in its assessment, as well as to develop a new model of a judge who is neither a hero nor the “mouth of the law”. Within the text, both, the ancient concept of the hero and the figure of Hercules, as the embodiment of a certain archetypal pattern, are analysed. On this basis, the possessed and desired competences of both the hero and the lawyer are also examined. This leads to a different interpretation of the judge-hero. The hero, like the judge, is not to remain outside or above the community but within it. In the relational nature of a judgment, directly related to the concept of prudence and practical thinking, the judge issues a judgment but this judgment is a subject to evaluate, just as the actions of a hero are evaluated by the community which, at the same time, prove his extraordinary role in the process of development, including making and interpreting the law. Thus, the modern judge-Hercules should not be a super-lawyer, an unattainable ideal who loses contact with the rest of society but a hero in the very Greek sense of the word. That means, a real model, having completely human experiences, knowledge and the ability to draw conclusions, teaching his fellow citizens to think and make decisions, while taking into account the needs of the community.

Czy warto wprowadzić zakaz negatywnej kampanii wyborczej?

Author(s): Piotr Uziębło / Language(s): Polish Issue: 44 (3)/2023

Nowadays, negative campaigning is a permanent feature of political life. This often leads to situations where false or manipulated information determines the outcome of an election. Consequently, some countries have decided to significantly restrict the possibility of negative campaigning, as exemplified by Japanese or French legislation. The question can be asked whether similar bans would be worth introducing in Poland. One argument in favour of their introduction is the desire to increase the substantive level of electoral campaigning or to better ensure implementation of the principle of equal electoral opportunities. However, there are more arguments against such a ban. It would constitute a significant limitation of the principle of freedom of speech and, consequently, a limitation of the transparency of politics or the assurance of actual rivalry between political parties.

MEĐUNARODNOPRAVNI SUBJEKTIVITET DA LI JE VREME ZA TRANSFORMACIJU?

Author(s): Jelica Gordanić / Language(s): Serbian Issue: 3 (1)/2023

One of the products of the Peace of Westphalia is the modern system of international law, which considers states as subjects of international law. With the emergence and development of international association and cooperation, international organizations acquire an international legal personality as well. The activity of non-state actors is becoming very important in international relations. Non-state actors such as non-governmental organizations, individuals and multinational companies influence the development of international law and international relations. Non-state actors are objects of international law. On the other hand, having in mind their growing influence in the international arena, they are gradually acquiring characteristics attributed to the subject of international law. The paper analyzes whether it is time for the transformation of the concept of international legal subjectivity. Different directions of action of non-state actors and their relationship with the state are examined. The occasional impotence of the state in relation to non-state actors is also analyzed, especially when it comes to non-governmental organizations and multinational companies. The paper concludes that the concept of international legal personality is ready for expansion and adaptation to requirements of the modern world. The biggest obstacle on this path is going to be the lack of political will of the states.

OGRANIČENJA POSEBNIH OBLIKA RADA BEZ NARUŠAVANJA OSNOVNOG ODREĐENJA I SADRŽAJA RADNOG ODNOSA

Author(s): Marinko Učur / Language(s): Serbian Issue: 3 (1)/2023

Legislation of the Republic of Croatia (and other countries in the „surrounding“) based on and within the framework of directives and other secondary sources of European Union (EU) law, more and more, in addition to basic concepts, catgeories, legal institutes and legal relations in labor (social and other) legislation regulates „new flexible forms of work“ and thus affects the „static budget“ of the general law regulating these issues and relationship. In practice, with such prescribed flexible forms of work, the standards of working conditions are „left“ to concrete economic, political, social and other relations and „opportunities“. This paper tries to point out the necessity of preserving the employment relationship as a complex situation, but also as a special legal relationship that is determined by terms, categories, labor law institutes and other issues that, with a special method, are studied by an independent legal discipline, labor law (a special scientific branch of law, the legal system, or legal order). In the framework and on the basis of this, (other) felxible forms of work can (and should) be arranged, realized and protected, without dirupting (devastating) the employment relationship as „established“ by labor law theory and universal source of human rights and freedoms. This also applies to: fixed-term employment, part-time work, work on Sundays, work at a separate workplace, additional work, employment contracts for temporary performance of work through an agency and „other forms of work“.

ODNOS REGULATIVE REPUBLIKE SRBIJE PREMA RETKIM BOLESTIMA

Author(s): Marta Sjeničić / Language(s): Serbian Issue: 3 (1)/2023

A disease that occurs in a small number of people, at most one in 2000 people, is considered a rare disease. Unlike cardiovascular diseases, diabetes or cancer, which take the most human lives in modern society, rare diseases were, until recently, completely invisible and neglected precisely because of the small number of patients suffering from a single rare disease. Nevertheless, taken together, they represent a significant phenomenon in medical, financial and social terms. In addition to the Law on the Prevention and Diagnosis of Genetic Diseases, Genetically Conditioned Anomalies and Rare Diseases from 2015, the regulations of the Republic of Serbia recognize rare diseases in the Law on Health Care and the Law on Health Insurance, and in 2014 the Decision on opening the Budget Fund for treatment of diseases, conditions or injuries that cannot be successfully treated in the RS, was adopted. The program for rare diseases in the RS, as a strategic document, was adopted in Serbia for the first time in 2020, for a two years period. The program sets one general and two specific goals (diagnosis/prevention and treatment), which are elaborated through a series of measures and indicators of their realization. Some measures have been implemented, while others are still awaiting implementation. The RS Ministry of Health has taken steps to develop a new program/strategy for rare diseases. The Registry for Rare Diseases was established at the Institute of Public Health of the RS, and the Centers for Rare Diseases in some institutions of the tertiary level of health care. Over time, the availability of drugs and medical devices for rare diseases is increasing. Diagnostics and screenings for rare diseases represent a big challenge, as well as the availability of off-label drugs for the purpose of treating of rare diseases.

PROCEDURAL CONSTITUTION-MAKING: LESSONS LEARNT FROM HUNGARY

Author(s): Nora Ban-Forgacs / Language(s): English Issue: 3 (1)/2023

This article focuses on the procedural and substantive nature of drafting new constitutions under hybrid political regimes. The main argument of the article is that a qualified majority for rulemaking cannot be overruled by a simple majority principle even under extraordinary social and political circumstances.

CONSTITUTIONAL COURTS VERSUS PARLIAMENTS DURING PANDEMIC (AND BEYOND)

Author(s): Boldizsár Szentgáli-Tóth,Nora Ban-Forgacs / Language(s): English Issue: 3 (1)/2023

National parliaments are the representatives of popular sovereignty. Any restrictions on parliamentary rights have a direct impact on separation of powers and rule of law. This article elaborates on some of the landmark decisions worldwide of the constitutional courts vis a vis national parliaments during epidemic restrictions.

КРИТИЧКИ ОСВРТ НА НАЦРТ ЗАКОНА О УНУТРАШЊИМ ПОСЛОВИМА СРБИЈЕ

Author(s): Branko Leštanin,Željko Nikač / Language(s): Serbian Issue: 3 (1)/2023

At the end of 2022, the Serbian MoI published a public hearing and published the Draft Internal Affairs Law on its website. Several public discussion sessions were held, but the Draft was soon withdrawn from the procedure. In the paper, the authors analyze the text of the Draft, where in the first part they give an overview of the provisions of a general nature, while in the following the authors give suggestions on the provisions and institutes of an individual nature, analyzing them with the application of normative, dogmatic and comparative legal methods. At the end, the authors conclude that the proposed text needs a thorough amendment and harmonization with the relevant regulations.

ЛОКАЛНИ РЕФЕРЕНДУМ У КОМПАРАТИВНОЈ ПЕРСПЕКТИВИ

Author(s): Mijodrag Radojević / Language(s): Serbian Issue: 3 (1)/2023

A referendum is a form of direct democracy and exercise of citizens’ sovereignty that can be organized at different levels of government. In territorial units, such as municipalities or regions, one speaks of a - local referendum. The subject of this study is its theoretical and practical aspects in comparative legal systems, in reference to the territory of the former Yugoslavia. In contrast to most communist countries, the local referendum was applied during the period of Yugoslav socialist ‘self-management’, especially in decisions on local “selfparticipation” (self-taxation). Today, however, as in most European countries, this practice is very rare. The local referendum is badly portrayed as a corrective to representative democracy. Criticism of the local referendum stems from attitudes toward decentralization and the belief that it poses a threat to majority-understood democracy, because it is prone to abuse. In legal systems, it can be constitutionalized, regulated by a special law, or not regulated by regulations. Variations of solutions in comparative law are also observed in the types of local referendum, the procedure for determining the referendum question, the conditions for its validity, the bindingness of the decision, etc.

(НЕ)МОГУЋНОСТИ РАСПУШТАЊА ПРЕДСТАВНИЧКИХ ОРГАНА У БОСНИ И ХЕРЦЕГОВИНИ

Author(s): Milan Pilipović / Language(s): Serbian Issue: 3 (1)/2023

A representative body in a state is one in which citizens elect their representatives in free and democratic elections, by secret ballot, on the basis of universal and equal suffrage. In some countries it is called parliament, in others assembly, and in Bosnia and Herzegovina both terms are used in the names of representative bodies, but also one unusual and specific one - Parliamentary Assembly of Bosnia and Herzegovina. Bosnia and Herzegovina is a complex country in which there are several representative bodies at different levels of government (state, entity, local), and the (im)possibility of dissolving those bodies in Bosnia and Herzegovina is the topic of this paper. In this paper, in the first part, we will talk about the dissolution of the parliament from a theoretical and legal aspect. In the second part, through the analysis of constitutional and other norms, we will show the (im)possibility of dissolving representative bodies in Bosnia and Herzegovina and the entities

PERSPEKTIVE RAZVOJA E-ZDRAVSTVA U KONTEKSTU E-UPRAVE

Author(s): Aida Mulalić,Ivana Grubešić / Language(s): Serbian Issue: 3 (1)/2023

The development of information technologies (IT) has inevitably affected the domain of public administration, and within it, the domain of public health, and accordingly the concepts of digital or e-governance and e-health have arisen. E-governance is the infrastructure that is built to transform the execution of public administration competence, the direct effects of which are reflected in the cost efficiency of public administration tasks, significant savings in the areas of representation, collection of public revenues, and stronger connection between public administration and citizens. E-health in the public sector primarily includes the use of IT in the context of more efficient, better quality and more comprehensive delivery of health services, reforming the relationship with end users of health services. In addition to the advantages that e-government and e-health systems undeniably bring, there are also certain challenges of a technical, economic, legal and social nature that the implementation of such systems faces. The issues of data exchange, protection of personal data, and availability of services within e-health and standardization of services are just some of the aspects that must be taken into account when analyzing the benefits and drawbacks of the use of information technologies in these domains.