Comparative Aspects Of Habeas Corpus

Author(s): Xhemajl Veliqi / Language(s): English Issue: 3/2018

This paper discusses the institute of habeas corpus, its origin and development. In this paper will also be presented certain comparative solutions, in particular with regard to European Countries, to determine that this institute is today one of the greatest achievement accepted universally by liberal constitutional democratic states. There is no doubt that this institute has its historical roots such as in France after the 1789 revolution. However, its development is reflected as quit slow compared to its fast presence in the post-revolutionary France. The paper provides also a clear picture of the judicial practice on the European level, national and the reaction of the ECtHR. Part of the discussion in this paper will also be the philosophical ideas which has given birth to the institute of habeas corpus and the fight which has been done by humanity in order to gain and protect it through constitutional guarantees of personal freedom.

Enforcement and Effectiveness of Decisions of Constitutional Court of Republic of Kosovo in Cases of Violation of Human Rights

Author(s): Bardh Bokshi / Language(s): English Issue: 3/2018

The aim of this paper is to shed light on the enforcement and effectiveness of decisions of the Constitutional Court of Kosovo in individual cases involving violation of basic human rights. The reader shall be informed about effectiveness of decisions of the Constitutional Court of Kosovo, whether they offer full or partial redress for the victims of violation of basic human rights. The key focus areas of this paper deals with the enforcement and effectiveness of decisions of the Constitutional Court of Kosovo in cases finding a violation of the right to have a final and binding decision enforced and the right to have proceedings concluded within a reasonable time. The approach used in this study is based on observations and review of legal practice and theory. The paper uses as a reference point the case law of the Constitutional Court of Kosovo, the case-law of the European Court of Human Rights, reports and opinions of the Venice Commission and documents produced by the Council of Europe on matters dealing with enforcement and effectiveness of court decisions. In conclusion, there will be introduced concrete recommendations to enhance the effectiveness of decisions of the Constitutional Court of Kosovo.

Legal Regulation of Women’s Rights in Property and Inheritance in the Republic of Kosovo.

Author(s): Freskim Musliu,Arton Ibrahimi / Language(s): English Issue: 1/2019

The purpose of this paper is the detailed analysis of the legislation of the Republic of Kosovo regulating the rights of women in property and inheritance so that the citizens of Kosovo as well as the citizens of other countries are better acquainted with the legislation of Kosovo by which these rights are regulated. To work on this paper, we have used study methods by which we have analysed in detail the laws of the Republic of Kosovo in order to find and analyse the laws and provisions relating to the rights of women in property and inheritance, and also to analyse their way of regulating them. From the analysis of Kosovo’s laws we have come to the conclusion that the laws of the Republic of Kosovo regulating women’s rights are quite modern and contemporary, and women's rights are regulated fairly well, that means women’s rights are equal in any case to those of men.

Restricted Judicial Activism of Constitutional Court of the Republic of North Macedonia Regarding Protection of Human Rights and Freedoms

Author(s): Jeton Shasivari / Language(s): English Issue: 1/2019

In this paper, the author analyzes the issue of protection of human rights and freedoms within the constitutional judiciary, which was often questioned because of supremacy of parliamentary acts in the face of any other legal acts. However, after the end of World War II, a large number of constitutions of different countries incorporated in their provisions a large body of human rights and freedoms, which practically influenced constitutional democracy to incorporate the issue of the protection of those rights and freedoms within the competence of the constitutional judiciary. The aim of this paper is by explaining and assessing the role of the Constitutional Court in protection of human rights and freedoms in Republic of North Macedonia using: normative legal method, comparative legal method, and the quantitative methods by presenting numerical data from the annual reports of this court as well as the qualitative methods by analyzing the proceedings before this court related to this matter, to focus on the specific analysis of ineffectiveness of this court in the practice, which is due to the reduced trend of submitted requests from citizens, because there is no fully covered protection of all rights and freedoms by the constitution of this country.

Lex informatica şi protecţia datelor cu caracter personal

Author(s): Andreea Șerban / Language(s): Romanian Issue: 1/2020

The use of the Internet for commerce has become increasingly relevant both for the European and international legislators and for the parties involved. The trade operators face new regulations regarding the protection of personal data and Lex Mercatoria, a particular set of a-national rules in international trade law, also applies in legal relations made through the Internet using a form specific to information infrastructures, namely Lex Informatica. This concept refers both to the product of a decentralized private legislative process, resulting from the transition of trade from the territorial application to the virtual environment and the international trade practices of the participants, as well as the code used when programming the online platformes, created by technical experts and computer scientists. In the present study we shall follow the way in which the new data protection legislation applies on the Internet and to what extend the specific rules of international trade law are linked to these.

Impactul hotărârii Camerei Curţii Penale Internaţionale de respingere a autorizării anchetei procurorului asupra activităţii de prevenire şi combatere a criminalităţii la nivel internaţional. Cauza Afganistan

Author(s): Alina-Mirabela Gentimir / Language(s): Romanian Issue: 1/2020

The paper intends to underline the current challenges on the legitimacy and efficiency of the international criminal system. The Prosecutor’s request of authorization from Pre-Trial Judges to initiate an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in the Islamic Republic of Afghanistan since 1 May 2003, as well as regarding similar crimes related to the armed conflict in Afghanistan allegedly committed in the territory of other States Parties to the Rome Statute since 1 July 2002, rejected unanimously on 12 of April 2019, has created, once again, questions on the independence and impartiality of the International Criminal Court. The reason invoked by ICC judges been no less than that an investigation in this case would not serve the interest of justice, thanks to the fact that the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. This rejection, beyond its deeper political explanations caused by the direct conflict of the Court with United State, would be considered a challenge especially after the conviction of three European State – Romania, Lithuania, Poland – by the Court of Strasbourg for committing severe violations of human rights in cases related to the existence of CIA black centres as the ones from Afghanistan.

Should Title VII of the United States Code Prohibiting Sex Discrimination Be Based on Sexual Orientation: An Argument

Author(s): Andrew J. Schatkin / Language(s): English Issue: 22/2020

The article considers the issue of what is sex and sexual orientation discrimination and should under the federal statute 2000 Esexual orientation be encompassed under the term sex. The statute has long been intrepreted as directed to physical sex and not read as including sex orientation as an aspect of sex. The article however traces and identifies a clear trend in the federal court system of the United States to interpreting and includng sexual orientation or homosexuality and lesbianism within this statute’s prohibition against traditional sex discrimimation. The author holds the view that homosexuality and sexual orientation should be given the same and equal protection as sex discrimimation in the federal courts of the United States and in time this statute will rightly be interpreted not only to include sex discriminataion as directed in its tradidtional understanding but be analayzed and interpreted to include protection against sexual orientation discrimination.

THE DEVELOPMENT OF INDIVIDUAL CRIMINAL RESPONSIBILITY UNDER INTERNATIONAL LAW: LESSONS FROM NUREMBERG AND TOKYO WAR CRIMES TRIALS

Author(s): William Eduard Adjei / Language(s): English Issue: 39/2020

One of the most significant developments in international law was the establishment of Special Tribunals that could bring to justice individuals allegedly responsible for “grave breaches” and violations of the law against humanity. This is, undoubtedly, a recent global development that has challenged the issues of impunity and sovereignty. Since the Nazis' atrocities and the Nuremberg trials, war crimes law has broadened its scope and has recognized a number of offenses considered as “international crimes” and which have also come to be described as “genocide”. However, although intended to put an end to the politics of impunity for the perpetrators of these crimes, a number of signatory states are reluctant to bring to justice those responsible for these defined international crimes. Indeed, the jurisprudence developed in these Special Tribunals provided an impetus for the development of the Rome Statute for the International Criminal Court (ICC). More specifically, it has been argued that war crimes and crimes against humanity are committed by men, not by abstract entities, and only by punishing individuals who commit such heinous crimes can the provisions of international law be enforced and realized. However, a perfectly reasonable case can be made that the creation of these tribunals does represent a new era in international law.

Human dignity in criminal proceedings. Relevant decisions in the case-law of the European Court of Human Rights and the Inter-American Court of Human Rights

Author(s): Nicoleta-Ramona Predescu / Language(s): English Issue: VIII/2020

This article is intended to analyse and identify the relation between human dignity and the violation of some human rights which might occur in the course of criminal proceedings, during the criminal prosecution phase, in the trial phase, as well as in the phase of enforcement of custodial sentences. For this purpose, the article highlights several key decisions of the European Court of Human Rights and the Inter-American Court of Human Right that found a violation of human dignity during the criminal proceedings phases and lays down the role which should be played by human dignity in any legal system. A particular importance in this study is attached to the requirements arising from the provisions of Article 2 of the European Convention of Human Rights and Article 4 of the American Convention of Human Rights concerning the right to life and those of Article 3 of the European Convention of Human Rights concerning the prohibition of torture and of inhuman or degrading treatment or punishment, which have been highlighted in the presentation of the case-law.

Unele observații referitoare la importanța edificării unui sistem coerent de protecție a drepturilor omului în Europa

Author(s): Ovidiu Predescu / Language(s): Romanian Issue: 07/2020

Crimes against humanity committed by officials of the Romanian state during the communist era and ignored by justice

Author(s): Vasile Doana / Language(s): English Issue: VIII/2020

Thus far, Romanian justice has not initiated investigations to hold accountable those responsible for committing crimes against humanity during the communist period, thus being able to state that, on this matter, I.V. Stalin’s principle still applies, respectively: "The death of a man is a tragedy but the death of a million people is a mere statistic".

The ‘Acquis’ of the Council of Europe in the Sphere of Disaster Preparedness and Response

Author(s): Michał Balcerzak / Language(s): English Issue: 1/2019

The article discusses institutional and standard-setting initiatives of the Council of Europe aimed at enhancing the effectiveness of its members states’ actions when responding to natural or man-made disasters. Although the Statute of the Council of Europe itself is silent on tasks in this regard, the organization’s agenda in disaster preparedness and response was developed inter alia through the EUR-OPA Major Hazards Agreement of 1987 (a so-called ‘enlarged partial agreement’), as well as soft-law standards and the jurisprudence of the European Court of Human Rights on the positive obligations of states under Article 2 of the European Convention on Human Rights (the right to life). The article studies the Council of Europe’s activities in this sphere, while noting – in a comparative perspective – the most important developments in international cooperation aimed at disaster prevention and response within the European Union, the Organization of Security and Co-operation in Europe, as well as the United Nations and the International Federation of Red Cross and Red Crescent.

ПАРТНЕРИ ИСТОГ ПОЛА КАО ТИТУЛАРИ ПРАВА НА БИОМЕДИЦИНСКИ ПОТПОМОГНУТУ ОПЛОДЊУ

Author(s): Olga Jović Prlainović / Language(s): Serbian Issue: 2/2020

In some European legislation same-sex partners are allowed access to appropriate conception procedures of biomedically assisted fertilization. Determining the child’s family status in that case involves relinquishment of the traditional framework of maternity and paternity: a child, in other words, may have a mother or a father, and another parent of the same sex. Analyzing comparative law solutions in this field, it can be concluded that same-sex partners as holders of the right to biomedically assisted fertilization are establishing a new parenting paradigm – parenting as a project.

DESPRE FORȚA ȘI LIMITELE DREPTULUI

Author(s): Viorel Gheorghe / Language(s): Romanian Issue: 43/2020

Many times I thought about the reason behind millennial Latin legal basis „nemo censetur ignore legem” or „Ignorance legis neminem excusat”, and the limits that had been generated along? For example, to uphold that the great mass of society is presumed to know the rule of law, even more, to be able to absorb informations about it’s content and explanations provided by the legal text it self? My faith is not. And that reasons is more than reasonable. On the contrary, I would opine that the complex process of achieving justice in a proper manner and the application of the rule of law becomes operational on a real base, on the one hand, by the exercise of all categories of persons, and on the other hand (and only) as a result of the universal principle of „truth finding” that include the involvement in the judiciary - permanently or temporarily - have the task of carrying out the process to the end. So my concern is to elucidate the functional capacity of the law to enforce a judgment, a rule based on what exactly - especially in the courtrooms - which, by the effects can generate, including a potential miscarriage of justice.The principle of truth finding must be the very essence of all reasons behind the law enforcement and the primary task in judging any case by maintaing a guiding line and moralizing in the law enforcement activity it self imposed by any legal norm. However, I strongly believe that by applying the above illustrated motto - real but in a clearly form and somehow sad reproduced, in relation to what has come - can be called neither more nor less obstructing the truth, with high potential for translation, to negate the idea of ​​justice, and on the plan of the philosophy of law with doubt in ensuring good and fairness in the citadel. The distortion of the principle of finding the truth evolves antinomy with the idea that all conditions which may lead to the establishment of the state of social good must be applied in a way that ultimately may lead precisely to invalidate, by replacing the principle pre-exposed. Only the consecration of truth, the protection of the actors involved in any way in the judiciary, will result in restoring the proper „social good” and not an imposition, limitation or proclamation which theoreticaly - means - the principle that each one of us is presumed to know the law.

Partycypacja społeczna dzieci - Szkic dynamiki dyskursu

Author(s): Ewa Jarosz / Language(s): Polish Issue: Sp. Issue/2019

In the contemporary world social participation of children is seen as an idea that should be implemented at various social levels. The idea itself is understood multi-dimensionally – as various social activities, including the participation in decision-making process regarding children’s matters. Today in a discourse on children’s participation its collective dimension is accented, which means social participation and access to social and civil goods of children as a social group. In the discourse on participation, which has been developing dynamically since the adoption of the Convention on the Rights of the Child, various theories are used as a background against which children’s participationis considered and justified. The paper presents an outline of this problem and current tendencies in the discourse.

Examen de practică judiciară referitor la cauzele privind Revoluția din decembrie 1989 judecate de Curtea Europeană a Drepturilor Omului – Încălcările articolului 2 din Convenția (europeană) pentru apărarea drepturilor omului și a libertăților fundam

Author(s): Monica Pîrvulescu / Language(s): Romanian Issue: 12/2020

In the present article, the author analyzes twenty-four judgments of the European Court of Human Rights pronounced in the cases regarding the Revolution of 1989, by which it was established that Romania violated, mainly, the procedural side of Article 2 (right to life) of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. The author also identifies the advantages and disadvantages of the procedure by which the Committee of Ministers of the Council of Europe supervises the enforcement by Romania of those judgments. Finally, the article aims to assess the impact that the judgements of the European Court of Human Rights have had in recent years on the conduct of internal investigations, i.e. the so-called „File of the Revolution”.

KONVENCIJA 108: AKTUELNI ZNAČAJ I PRIMJENA

Author(s): Arben Murtezić / Language(s): Bosnian Issue: 3/2020

Cilj rada je ukazati na mjesto koje Konvencija za zaštitu pojedinaca u vezi sa automatskom obradom ličnih podataka (Konvencija 108) ima u cjelokupnom sistemu zaštite ličnih podataka, naročito iz perspektive zemalja koje nisu članice EU a članice su Savjeta Evrope. Ovo je pokušano prvenstveno kroz evaluaciju odnosa između Konvencije 108 i Evropske konvencije za zaštitu ljudskih prava (EKLJP) i Opšte uredbe o zaštiti podataka (GDPR) u dijelu u kojem GDPR reguliše odnose EU i trećih zemalja.U radu su prvo predstavljeni principi, te suština izmjena i dopuna koje je Konvencija 108 pretrpjela kroz amandmane iz 2018. godine, a što koincidira sa stupanjem na snagu GDPR-a. Prema GDPR-u, pristupanje i poštivanje Konvencije 108 je jedan od osnovnih parametara za ocjenu nastavka saradnje članica EU sa trećim zemljama u kontekstu protoka informacija, te je ovom, očigledno značajnom, pitanju posvećen drugi dio rada. U završnom dijelu teksta su u sažetom obliku predstavljeni predmeti Evropskog suda za ljudska prava koji sadrže pozivanje na Konvenciju 108.

Exercitarea drepturilor omului şi limitele acesteia

Author(s): Ramona-Gabriela Paraschiv / Language(s): Romanian Issue: 2/2013

Most international conventions containing provisions on human rights do not extend to the limits of their performance and the correlative duties. In reality, all rights entail obligations and responsibilities of the holders. Beside the obligations of States and international organizations to ensure the conditions required for rights to be respected, there is also the obligation of every individual not to violate the rights of others. In societies politically organized in states, one gives up their natural freedom and accepts a limited one, which should provide safety and the possibility to assert one’s own personality; however, this is equally valid for all persons one has social relations with.

Considerații privind complexitatea și importanța libertății de exprimare în România

Author(s): Ion Rusu / Language(s): Romanian Issue: 3/2013

After presenting the concept of fundamental rights and freedoms, analysing the forms and means of exercising the freedom of speech in the Romanian Constitution, the author presents the regulation of the social - political freedom in some international deeds (The International Covenant on Civil and Political Rights, The European Convention for the Protection of Human Rights and Fundamental Freedoms). The necessity of respecting certain supreme values (dignity, honour, private life) in exercising the freedom of speech in the media is highlighted, outlining the practice of the European Court of Human Rights in this field.

Criza economică şi drepturile omului

Author(s): Mircea Ciocan / Language(s): Romanian Issue: 4/2013

In addition to other rights proclaimed by the Universal Declaration of Human Rights, the right to a decent life, to work, education, paid vacations, health care, etc., enjoy particular attention. The Declaration also provides that any person who works has the right to just and favorable remuneration to ensure for him and his family an existence worthy of human dignity, supplemented, if necessary, by other means of social protection. Thus, in addition to proclaiming a decent living as a result of work performed, it also guarantees the right of workers to organize themselves and make use of all legal instruments for social and political improvement of their living conditions. The elements that confer substance to the notion of decent living vary and differ from one family to another and from one country to another, and the standard of living in each country is closely correlated with the population purchasing power and strongly influenced by the minimum wage.