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The introductory article defines the conceptual background against which the rest of this special issue, occasioned by the European Court of Human Rights’ (ECtHR) decision in the case of Tothpal and Szabo v. Romania, may be read. It argues that the jurisprudence of the Court should be explored not only within the narrow framework of the courts’ immediate, concrete effects, but also in terms of the social effects they generate at the grassroots level and on a longer term. It also briefly introduces the European Research Council-funded project GRASSROOTSMOBILISE, which has deployed precisely such a perspective in looking at the ECtHR’s religious freedom jurisprudence.
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Prikaz knjige: Nevenka Tromp, Smrt u Hagu - nedovršeno suđenje Slobodanu Miloševiću, University press, Sarajevo, 2019. str. 375
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The article analyses the new “digital platform permanent establishment” concept as a legal fiction establishing a fixed place even in situations where there is no actual fixed place. The authors conclude that in the Slovak legal environment this concept is not capable of (i) being applied through the interpretation of the tax treaty, or (ii) overriding the tax treaty. Its practical implications in a tax treaty situation must be analysed on a case-by-case basis. The ineffectiveness of the concept mainly stems from the fact that Slovak statutory rules are generally incapable of overriding tax treaties. It may still be applicable in a dualist legal environment, but international law treaty override implications would still remain valid.
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The present paper discusses the importance of general commercial terms and business conditions as basis for the conclusion of commercial contracts. The paper describes the historical development of general commercial terms and the increasing importance of individually stipulated standard-form contracts as well as the influence of both legal sources on the contract practice in international trade. The notion “general commercial terms” (abbr. GCT) designates proposals for standard contracts as produced in many cases by neutral experts of national and international organizations, whereas the notions “terms of business” or “general terms of business” refer to standardform contracts which one party to a contract or both submit and which are accepted by the parties as basis of their negotiations. Subsequently, the advantages and disadvantages associated with the use of general commercial terms on the one hand, and individually negotiated terms of business on the other will be identified. The paper also distinguishes general contract conditions according to their types and formations, both from the point of view of international law and with regard to Czech statute law, as it is established mainly in the Civil Code.
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Non-pecuniary damages are a form of just satisfaction that the ECtHR may award if a violation of protected rights is found. These damages can be claimed by individuals, groups of persons, non-governmental organizations and states, whereby the awarded amount must be distributed to individual victims. However, for the Court to award compensation for non-pecuniary damage, several requirements must be met. The Court has awarded compensation for non-pecuniary damage on several grounds, such as pain, stress, anxiety, frustration, embarrassment, humiliation, and loss of reputation. Unfortunately, the criteria for determining the amounts of compensation for moral damage are still not clear and precise, so they have been determined by the Court on an equitable basis, taking into account its case-law standards.
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The Mediterranean migrant crisis is not calming down and in the last six decades the nature and character of these migrations has changed. The authors deal with one of the aspects of their position – detention. This work is divided into several parts. In the first part, the authors explore the problem of the migration crisis. After that, they explain in detail the Article 5 of the European Convention on Human Rights and Fundamental Freedoms. The main part of this work is devoted to the jurisprudence of the European Court of Human Rights related to the migrants‟ detention.
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Discrimination against persons with disabilities is a widespread social phenomenon. In recent years, Serbia has successfully completed its normative framework by adopting a number of laws in the field of protection against discrimination (Act on Prevention of Discrimination against Persons with Disabilities, Act on Prohibition of Discrimination, Act on Professional Rehabilitation and Employment of Persons with Disabilities). Civil law protection and compensation for pecuniary and non-pecuniary damage are the most common forms of protection against discrimination. In addition to civil protection, the legal order of the Republic of Serbia also prescribes criminal law protection against discrimination. The aim of the paper is to investigate, by means of a specially designed questionnaire, the degree of awareness of persons with disabilities of the mechanisms of criminal law protection against discrimination. Being aware of one’s rights and how to protect them is a prerequisite for successful implementation of legal solutions. The results of the research show that persons with disabilities in Serbia are insufficiently informed about the available mechanisms for criminal justice protection against discrimination. As a result, there is a very small number of completed criminal proceedings in this field, which is one of the reasons for the unfavorable social and legal position of this vulnerable social group in Serbia.
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The Cyber security topic becomes a complex, interdisciplinary and multidimensional problem in the contemporary theory and practice of the International Law.
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Considering the pluralism of the axiological sources of human rights, we claim that it is necessary to realize that we are facing at the moment an analytic extension of both the “number” of human rights (appearance of new generations of human rights), as well as the “quantitative quality” of human rights due to newly uncovered axiological sources such as the appearance of new values or a rede"nition of existing ones. In the presented context of the axiology of human rights and the axiology of their protection, it is easy to observe the axiological pluralism of the two spheres as well as numerous attempts to make the exegesis and interpretation both relative and instrumental in a domestic, European, and international sphere. Attempts to limit human rights in a camouflaged manner in the jurisdiction practice of particular states are quite abundant and an axiological justification of legal solutions that would make the implementation and protection of those rights (in particular those of the third, fourth and fifth generations) inetelectual—de facto (not de iure, since from a formal and legal point of view they correspond to declared rights and, without exception, the protected ones) is the guarantee of community security and, paradoxically, the protection of other people (i.e., the protection of religious sentiments, family, public morality based usually on the rules of the dominant religion). When transposing these problematics from the state perspective to the intra- and trans-state level, we need to demonstrate that in the international law of protection of human rights, limitation of these rights may also take place as a result of extra-normative factors due to so-called “instrumental relativism”', applied in the function of current political interests for which intrinsic human dignity happens to be infringed.
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Documentary letters of credit are among most popular trade finance instruments used in international business. Despite the fact that main purpose derived from application of documentary letters of credit is to reduce the risk of trade, their mere documentary nature makes them vulnerable to the problem fraud. There is a huge interest among legal scholars and academicians to analyse the nature of fraud in documentary letters of credit due to its important !nancial effect on smooth process of international trade and also diversi!ed approach of different legal systems to this particular problem. However, majority of conducted studies are limited to most popular legal systems including British and American law. Need for studying the LC fraud in a comprehensive comparative manner among existing international legal frameworks is well noticed for long time. Due to their international nature, LC operation is subjected to substantial number of legal frameworks which most of them are either taking a silent position towards problem of fraud or do not show uniform approach to the it. In this paper, author tries to study different sources of law in documentary letters of credit and their approach to the problem of fraud in a comparative manner. The main research question is what would be the position of fraud rule in applicable legal frameworks to the international LC operation and how do they approach the problem of fraud committed by beneficiary in documentary letters of credit? For this purpose, paper is divided into four main parts: After the introduction, second part will discuss the sources of law applicable to international LC transaction.
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The aim of this contribution is to consider whether common provisions of the Brussels IIbis Regulation and of the Maintenance Regulation supersede the national rules only in so far as a given situation has substantial connections to the EU or in all situations irrespective of such connections. We will consider external effect (effect on extra-Union cross-border family cases) of the abovementioned Regulations on the basis of analysis of personal-territorial scope of their application.
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Conclusion of the Trade agreements between the European Union and the third countries is one of the displays of the EU´s sovereignty. At the same time, it is an effective tool for enhancement of the EU´s position within a globalised world of trade. The aim of the trade agreements is to create an easier business environment for (European) entrepreneurs, in particular by removing the customs, opening the public procurement, establishing the common technical standards, setting the rules of solving the disputes. At the same time, the trade agreements guarantee the achieved level of rights and interests protected by law of the European subjects. This leads to exterritorial application of the European law. This article is focused on brief analysis of concluded EU´s trade agreements and their application.
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The recent Report on Macedonia: Assessment and recommendations of the Senior Experts’ Group on systemic Rule of Law issues 2017, led by Reinhard Priebe and issued on 14 September 2017, notes that there is a need for achieving greater uniformity of court practice. The latter was also noted by the European Union within its latest progress reports on the Republic of Macedonia. Within the process of achieving greater uniformity of court practice, the court practice of the European Court of Human Rights must not be neglected. This was emphasized in the latest European Union reports on the progress of Republic of Macedonia as well. However, the use of the court practice of the European Court of Human Rights by the courts in the Republic of Macedonia is not satisfactory. This paper aims to show that there is a need for symbiosis to be reached between the court practice of the Republic of Macedonia and the court practice of the European Court of Human Rights. This will be done mainly through analysis of the relevant national legal frame. In addition, it will also be shown that uniform court practice that is in compliance with the court practice of the European Court of Human Rights is important not only for the legal security, but also for the Euro-integrative processes of the Republic of Macedonia.
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In this article, we aim to discuss the nature of juridical punishment applied to detainees charged with crimes against national security or against public order and safety, especially when the interrogation and enforcement mechanisms are put into practice in a way that falls short of transparency standards. The specific manifestation of violence within law-enforcement processes goes against the very ideatical core of the principle of human dignity, which flagrantly violates the provisions of the European Court of Human Rights. More concretely, we will refer to the recent ECHR ruling regarding the case Al Nashiri vs. Romania, where we will analyze the situation of the enforcement of prison sentences in secret detention facilities, where detainees were exposed to alleged systematic torture and inhuman treatments. We will thus explore the situation when the rights of defendants who stand accused of high crimes are severely curtailed in the name of the national security imperatives.
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The article is devoted to the theoretical analysis of special courts created in the Third Reich. Their genesis, system, and local and material jurisdiction, as well as proceedings before these courts are discussed. The tasks put before special courts by Nazi lawyers during peace and war are discussed, as well as the historical context associated with them. The study uses historical, and formal-dogmatic methods. The study is based primarily on literature of German provenance and normative acts
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The subject of the study is the analysis of the application of the Standard of Full Protection and Security of Foreign Investments in international arbitrarily practice. It is an absolute standard that is contained in almost all international investment agreements and that has been established through arbitration practice, regardless of the variety of language expressions referred to in investment agreements. The objects of protection under this Standard can be both investors and investments and it establishes a dual obligation for the states. On the one hand, there is the obligation of active action to prevent and remedy a violation or to punish perpetrators, and on the other hand, there is the obligation to refrain from any activities that may hurt foreign investment. This paper deals in particular with the three issues that are decisive for the application of the Standard in practice. The first is the issue of the relationship between this Standard and other standards of protection of foreign investments, in particular the Standard of Fair and Equitable Treatment, as well as to the minimum standard of protection enjoyed by foreign investors and their investment under international customary law. The second is the issue of standard content, whether it applies only to physical protection and security, or includes wider, legal protection and regulatory protection, security and stability. The third question relates to the degree of protection and security, i.e. whether this Standard implies the objective liability of the host country or whether it has to deal with due diligence, depending on the circumstances of each case. The paper analyses all publicly available decisions of international arbitration tribunals as well as scientific literature dealing with this Standard and points out the prevailing attitudes about these three key issues as well as their implications for the protection of foreign investments.
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The paper examines the Croatian case law where the 1971 Hague Convention on Traffic Accidents has been applied. Some relatively recent cases show that the Croatian Supreme Court applied the general conflict-of-laws rule on determining the law applicable to the non-contractual obligation of the Croatian Private International Law Act where it should have applied the 1971 Hague Convention. The most recent decisions from 2009 and 2013 indicate that, even after more than 40 years of application, the problem of basic understanding of the sources of private international law still exists. On the other hand, there are a number of decisions where the 1971 Hague Convention has been applied and in which some issues repeatedly arise. Most of them relate either to the application of Article 8 of the Hague Convention dealing with the scope of the applicable law or application of Article 4 of the Convention providing for exceptions to the main rule of the lex loci delicti commissi found in Article 3 of the Convention. The problematic decisions fall into the category of decisions applying the exceptions under Article 4 of the Convention. The decisions in which the court has applied Article 8 of the Convention show that Croatian courts have recognized the idea behind the provision (as explained in the Essén explanatory report), which was to give as wide a scope as possible to the applicable law.
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In this paper, the authors point out important practical issues arising in the application of international treaties in Private International Law, such as the complex situations that may arise in connection with the entry into force of the treaty, the succession of international treaties, the hierarchy of international treaties, and an analysis of the common rule on the primacy of bilateral treaties. Besides, the need for reviewing existing bilateral treaties Law has been discussed as well, bearing in mind more efficient solutions envisaged in the conventions of the Hague Conference on Private International Law. Finally, the paper also indicates the specific cases where the innovated solutions of the new PIL Act of the Republic of Croatia and the Draft PIL Act of the Republic of Serbia are considerably more favorable than the binding multilateral agreement on determining the content of foreign law.
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