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ИЗДАВАНЕ НА РЕШЕНИЯ, СВЪРЗАНИ С ПРИЛАГАНЕ НА МИТНИЧЕСКОТО ЗАКОНОДАТЕЛСТВО

Author(s): Atanas Simeonov / Language(s): Bulgarian Issue: 1/2018

The study covers the issues raised by the acceptance of an application by an interested person for decisions by the customs authorities on the application of EU customs legislation. There is currently no in-depth discussion on these issues. The practice of the administrative authorities competent to issue acts on the application of customs legislation reveals uncertainty and still ignorance of the new legal framework, which undoubtedly leads to contradictions in the judicial resolution of legal disputes. This article is part of a larger study on administrative service delivery by Member States' customs administrations in the EU and aims to clarify and analyze problematic issues.

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Organizacija pravosuđa u BiH

Author(s): Enver Ajanović / Language(s): Bosnian Issue: 1/2018

The Rules of the Constitutional Court of BiH, the Law on the Court of BiH, the Law on the BiH Prosecutor's Office, the Law on the BiH Ombudsman, the Law on Civil Procedure of BiH, the Criminal Procedure Code of BiH, the Law on Administrative Disputes of BiH, the BiH Election Law, the Law on the Prohibition of Discrimination, before the Constitutional Court of FBiH and the Law on Proceedings before the Constitutional Court of the RS, the Law on the High Judicial and Prosecutorial Council of BiH contain material for reforming the judiciary organization in BiH. There is a legal basis in the BiH Constitution to organize differently the judiciary in Bosnia and Herzegovina. Thus, it is necessary to enact a new Law on the Constitutional Court of BiH or the Law on proceedings before the Constitutional Court of BiH, the Law on Courts in BiH, the Law on Prosecutors' Offices in BiH, the Law on the Ombudsman in BiH, the Law on the High Judicial Council and the Law on the High Prosecutorial Council in the BH Parliamentary Assembly.

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Execution of court decisions in Ukraine: reforming the system in terms of the right to a fair trial

Author(s): Tetiana Tsuvina / Language(s): English Issue: 142/2018

The article addresses the Ukrainian model of executive proceedings (which was recently updated as a result of constitutional reform in the justice sector) through the prism of the right to a fair trial, guaranteed by paragraph 1 of Art. 6 ECHR. Particular attention is paid to the analysis of the pilot judgement of ECtHR «Yuriy Nikolaevich Ivanov v. Ukraine» and the judgement «Burmych v. Ukraine», in which the ECtHR diagnosed a systemic problem of non-enforcement of court decisions where the debtor is the State or state-owned enterprises. The article critically assesses the main consequences of reforming the system and procedures of enforcement of court decisions, in particular: establishing the profession of private bailiffs and transforming the public model of enforcement proceedings into the mixed one, its further decentralization; digitalization of enforcement proceedings by setting up an automated electronic system of executive proceedings, a unified register of debtors and electronic auction systems; introduction of obligatory prepayment of bailiff’s fees by creditor, etc. The article advocates a position according to which the national legislation of Ukraine needs further changes to ensure fulfillment of its international obligations. In particular, it is necessary to provide at national level an effective remedy of the right to a fair trial and execution of court decisions within a reasonable time in accordance with the requirements of Art. 13 ECHR, which should combine preventive and compensatory elements.

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Основні засади цивільного судочинства та розумність строків розгляду справи судом

Author(s): Natalia Sakara / Language(s): Ukrainian Issue: 142/2018

In the article “the fundamental principles of civil procedure” and “the principles of civil procedural law” are considered as synonyms. They are understood as normatively fixed requirements that reflect the values of civil procedural law, reproduce the standards of fair trial and determine the procedure of a trial. Such requirements should be pursued by the court and other participants of civil procedure because they have general, stable and imperative nature and perform regulatory and interpretative functions in relation to ordinary rules of civil procedural law. The possibility to classify the requirement about “reasonableness of the time of a trial” as an interdisciplinary principle of judicial procedure is called into question because the lack of a unified approach to its regulation. Taking into account the provisions of the current procedural legislation and the decisions of the European Court of Human Rights, the author proposes to interpret this requirement in three ways: 1) as a convention requirement arising from para. 1 art. 6 ECHR; 2) as a requirement for a general time of a trial, which constitutes an indicator of the effectiveness of protection of violated, unrecognized or disputed rights, freedoms and interests (p. 10 p. 3 art. 2 CPC); 3) as a requirement for the time limits of procedural actions in specific cases (art. 121 of the CPC). At the same time, as a requirement for a general time of a trial “the reasonableness of the time of a trial” is an evaluative concept. It cannot be understood as a fundamental principle of civil procedure. In its ontological nature, it is a legal axiom that reproduces the ideal model for the administration of justice and considered to be a tool for realization of the task of timely trial.

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Book Review: Globalising Transitional Justice: Contemporary Essays

Author(s): Helga Molbæk-Steensig / Language(s): English Issue: 8/2017

The review of: ‘Globalising Transitional Justice: Contemporary Essays’ by Ruti G. Teitel, Oxford University Press. 2014. Ruti G. Teitel is an established authority within the field of transitional justice. She coined the term in the late 1980s and in the year 2000 she published her monograph ‘Transitional Justice’, which is still for many scholars the entry point into the field, but also a starting point for expanding the field beyond the strict adherence to the legal aspects of ensuring the right to justice. In 2014, Teitel published her new book, ‘Globalising Transitional Justice’. In which she takes stake of the development of the field she founded several decades earlier, and its expansions. ‘Globalising Transitional Justice’ is not a monograph but a collection of Teitel’s essays published elsewhere between 2000 and 2014 along with an introduction and an epilogue detailing the development of the field, both academically, legally, and normatively. It is well worth a read, but the reader should not expect a monograph in the style of her 2000 book, nor a textbook-type final coining of terminology and practical uses of transitional justice. ‘Globalising Transitional Justice’ is a portrait of a field in motion from a scholar that moves with it.

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Seeking Justice while Negotiating Peace: An Essay on the (In)Compatibility of Transitional Justice Measures in Peace Negotiations

Author(s): Kaja Nanut / Language(s): English Issue: 4/2013

Much of the 'Peace vs. Justice' debate revolves around the question whether transitional justice measures pose an obstacle to peace negotiations and endanger durable peace or the opposite, whether they enable peace negotiations and in the long-term contribute to durable peace in conflict-affected societies. A strong focus on justice can hinder the peace process and fuel conflict, while sacrificing justice in the hope of securing peace can fail to discourage future severe human rights abuses. In this paper I discuss prosecuting war crime suspects through national and international courts while negotiating peace and consider the legitimacy of measures associated with abstaining from post-conflict justice, such as amnesty and exile.

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Dealing with the Past Nowadays. A New Paradigm of Transitional Justice?

Author(s): Caterina Bonora / Language(s): English Issue: 3/2012

By considering transitional justice as an evolving paradigm, this essay endeavors to describe the changes that the field has undergone in the past two decades. The most important features of transitional justice as it looks like nowadays are reconstructed by referring to the current scholarly literature in the field, and then coupled with practical examples from the former Yugoslav experience. Finally, some critical conclusions are drawn as to the implications of the described changes for the classic purposes of transitional justice.

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The Concept of Reconciliation in the Transitional Justice Process - Meaning and Consequences

Author(s): Dennis Michels / Language(s): English Issue: 2/2011

The article answers the question what reconciliation means as part of the theoretical concept of transitional justice. It reveals the problems of different perspectives of contemporary scientific literature regarding the concept of reconciliation and fills the definitional gap that it spots. Reconciliation is framed from a societal perspective and presented as dealing with the relational aspects between victims and perpetrators. Moreover, the article connects reconciliation with the practical measures of transitional justice like amnesties, tribunals, or reparations in order to assess which measures have a positive impact and which measures have a negative impact on the reconciliation process.

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Transitional Justice as a Constitutional Instrument in International Law

Author(s): Aydin Atilgan / Language(s): English Issue: 2/2011

In today‘s world, it is evident that the international legal order‘s roles have increased in many domains where the nation states remain incapable. Settling with the past is one of those domains, which have been dealt by the international community. At this point, where do transitional justice processes fall among the debates on global constitutionalism? This paper questions the influences of transitional justice processes on the international legal order under guidance of the dynamics of global constitutionalisation.

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Joint Criminal Enterprise as the Transitional Justice Mechanism

Author(s): Aleksandra Đorđević / Language(s): English Issue: 2/2011

This essay is about Joint Criminal Enterprise (JCE) and how it helps bring transitional justice. I will analyse JCE and how it helps some of the basic principles of transitional justice: the right to know, the right to justice, and the right to non-reoccurrence. Genocide, crimes against humanity, and war crimes are supported and carried out by the system. Battling the impunity of those that held high rank positions, who are the ones that were behind the steering wheel, has been a challenge of international criminal law. With the use of the categories, such as common plan and common purpose and knew or should have known, carefully packed into the joint criminal enterprise doctrine, it is possible to make those who had important roles in these kinds of systems responsible before the law. It has become a powerful legal tool that helps in realising the victims' comprehensive rights and the transitional justice principle of the right to justice. Furthermore, assigning criminal liability to individuals for activities carried out by a collective takes into account how widespread and systematic violence occurs and it more precisely depicts the whole story. The victims of these mass atrocities need to know the whole truth and not just certain events taken out of context. JCE has a crucial impact on the process of dismantling institutions that allowed mass atrocities to take place and as a result it helps prevent the repetition of crimes.

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Discussing the Potential Role of Truth Commissions in Assessing Reparations for War-Affected Children

Author(s): Francesca Capone / Language(s): English Issue: 2/2011

Truth Commissions (TCs) have often been the subject of studies focused on transitional justice, probably because, amongst all the other possible mechanisms, they seem to best represent the challenges and the difficulties that a post-conflict state has to deal with during the transition towards democracy and reconciliation. Besides their well-known role as truth-finding bodies, TCs can be instrumental in the drafting of national reparations programmes. The reports launched in the past years by the six TCs considered in the present contribution identified children as beneficiaries of reparative measures, both symbolic and material. Therefore, the aim of this article is to understand how the issue of reparations for children has been addressed so far. In particular it will define the key terms adopted, it will dwell on children‘s right to participation in all the matters affecting them, including the activities carried on by the TCs and, of course, it will discuss if and to what extent children‘s right to reparation has been recognised and triggered.

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Truth, Reconciliation and Indigenous Rights in Peru: The Case of the Truth and Reconciliation Commission

Author(s): Diana-Cosmina Trifu / Language(s): English Issue: 2/2011

This article presents the case of the Peruvian Truth and Reconciliation Commission as both a milestone in the establishment of truth commissions and a representative case from the point of view of tackling, though indirectly, the Peruvian indigenous issue. Its proceedings, final report and recommendations aided in the improvement of indigenous rights protection. I argue that it was this mechanism that brought indigenous rights to the public eye, by presenting the violence, gross human rights violations and political, social and economic hardship suffered by these forgotten groups. The first part presents the conflict and the socio-economic context that ignited the violence, maintaining that it was precisely the marginalisation of the indigenous groups and ethnic discrimination that bred violence. The following two sections examine the achievements of the Truth and Reconciliation Commission, its innovative elements in regards to prosecutorial action or reparations and its work towards justice and ethnic reconciliation. The conclusion draws on the ideas presented and outlines certain arguments in relation to the Peruvian experience in terms of acknowledging the official truth and reckoning it with the country‘s indigenous past and, more generally, to the importance of integrating and addressing indigenous rights in transitional justice mechanisms.

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Human Rights Principles Interpretation in the Context of the ECHR

Author(s): Svitlana Karvatska,Lubov Zamorska / Language(s): English Issue: 2/2018

European system of human rights protection, with the European Convention of human rights and fundamental freedoms protection from 1950 as its basis, is the most effective among existing regional systems of human rights protection. Effective protection of individual civil and political rights according to the UCHR (european convention of human rights) in the countries of Central-Eastern, South-Eastern Europe and the former USSR is impossible without clear comprehension of the Convention interpretation principles, which will allow to take into consideration new social-economic and political conditions. The instances of the interpretation principles use in the EctHR cases, versus Ukraine in particular, give chance to display potential possibilities to widen the Convention of human rights protection application spheres and to perfect national legislation and legal-realization practice.The investigation and study of the principles for the interpretation of the Convention about the Protection of Human Rights and Fundamental Freedoms are important in terms of improving the efficiency and effectiveness of the interpretation activities both the European Court of Human Rights and national authorities applying the Convention, where predominantly techno-dogmatic methods of interpretation are spread and there are no sufficient skills to use precedents in law enforcement practice, judicial, in particular. Comprehension and clarifying the principles of interpretation of the Convention provisions and their practical application to the decisions of the ECtHR allow not only to solve the problems of legal proceedings, but rather the problems of social regulation. political, economic. Interpretative principles are an important basis for ensuring the proper implementation of the right to a fair trial at the national level.

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Transitions Online_Around the Bloc-Romanian Justice Minister Vows to Block EU Appointment of Former Anti-Corruption Prosecutor

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Transitions Online_Around the Bloc-Romanian Justice Minister Vows to Block EU Appointment of Former Anti-Corruption Prosecutor

Author(s): TOL TOL / Language(s): English Issue: 02/12/2019

Laura Codruta Kovesi is leading candidate for newly created position of EU public prosecutor.

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NATIONAL AND EUROPEAN VALENCES OF PUBLIC ADMINISTRATION INVOLVEMENT IN AND OF THE SOCIAL ENVIRONMENT

Author(s): Maria Albu / Language(s): English Issue: 1/2018

The current context in which we find ourselves, both at national and Europeanlevel, is one that is subject to intense turmoil and changes. All this is a permanentchallenge for the public administration, administration that finds itself forced to copewith these impulses coming from its outside, to adapt and reinvent itself to performthrough the act of administration. Thus, public administration is a living mechanismthat responds to social needs. It also addresses the social environment directly,establishes directions to follow and manages local, central or even European interests,more or less happily.

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LOCAL PUBLIC ADMINISTRATION FROM THE PERSPECTIVE OF THE RECENT DECISIONS OF THE ROMANIAN CONSTITUTIONAL COURT

Author(s): Mihai Cristian Apostolache / Language(s): English Issue: 1/2018

The article deals with several jurisprudential aspects of the practice of theRomanian Constitutional Court with an impact on the organization and functioning oflocal public administration and the status of local elected representatives. The analysisenvisages two decisions of the constitutional litigation court which declaredunconstitutional two normative acts that modified the procedure for validating themandate of the local and county councilors and the regime of incompatibilities ofcertain categories of local elected representatives. After the legislator changed theframework law of local public administration and the law regulating the incompatibilityregime of the local elected representatives, the Constitutional Court, within theframework of the previous constitutional control, has declared the legislativeinterventions analyzed as being unconstitutional.

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THE PRINCIPLE OF LEGALITY – A COMPONENT OF THE STATE OF LAW

Author(s): Mitrofan Florina / Language(s): English Issue: 1/2018

The state of law insures the supremacy of the Constitution, the conformity ofthe laws and of all the other normative acts with it, the separation of state powers andtheir performance according to the law.Justice must answer certain fundamental exigencies, one of them being thelegality.The principle of the legality of justice refers to the fact that the jurisdictionalfeature can only be fulfilled by those state authorities to whom the Constitution and thelaws recognize this quality.The courts can solve litigations only within the limits of the competencesentrusted by the law, and the means of attack can only be performed according to thelaw.

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ВАЖЕЊЕ ПРАВНЕ НОРМЕ КАО СЛОЖЕНИ КОНЦЕПТ

Author(s): Predrag Dimitrijević / Language(s): Serbian Issue: 29/1989

La pensée juridique actuelle est caractérisée par le procès de l'intégration de ces parties de différentes théories juridiques, qui ont survécu la critique et la réalisation des conceptions universellement admissibles« et des conceptions stables en rapport avec presque toutes les questions et problèmes. A ce propos, on quitte la position essentielle présente et on accède à la manière conventione- 11e de définir les catégories juridiques. Dans l'explication du problème de la va¬lidité des normes juridiques apparaissent de nombreuses théories »complexes« de la validité qui désirent dépasser l'unilatéralité des conceptions antérieures. Dans ce sens l'auteur a présenté les conceptions de base de quelques écrivains juridiques contemporrains qui insistent de synthétiser les connaissances et les résultats des conceptions antérieures de la validité comme la théorie behayiouri- stiaue — psychologique, ainsi que la complexe théorie réaliste de la validité de A. Ross, puis la conception normativo-réaliste de la H. L. A. Harte et la théorie analitico-linguistique de A. Peczenik. De nos écrivains juridiques on a présentait la théorie »intégrale« de la validité de N. Viskovic. Dans le traitement de cette question si complexe il faut commencer par l'essence du droit et ses normes dialectiquement compris, car ce n'est que l'ac¬cès dialectique qui dépasse chaque synthètisme et intégralisme et c'est lui-même qui rélie l'essentialisme et le conventionnalisme et qui peut présenter un pas en avant dans la pensée juridique moderne.

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Recht und Auslegung bei Bernhard Windscheid

Author(s): Kamil Korn / Language(s): German Issue: 11 (2)/2018

The subject of the following article is the views of German jurist Bernhard Windscheid on law and its interpretation. Bernhard Windscheid is traditionally regarded as a prominent representative of pandectists, conceptual jurisprudence, and legal positivism. In legal historiography an opinion about an excessive formalism and detachment from reality in his studies was held for a long time and is still partially maintained. In most recent studies, however, that assessment has been revised, and a more diversified picture of Windscheid has emerged of a scholar who is hard to define by means of simple formulas. The analysis of his views on law and its interpretation conducted in this article leads to the conclusion that the traditional picture of Windscheid as a representative of „bloodless conceptual jurisprudence” is incorrect. According to Windscheid, the aim of the interpretation of law is to find out the legislator’s intention and realize it accordingly, which however, does not exclude taking into consideration under some circumstances the requirements of legal relations and transactions with values such as righteousness. In Windscheid’s concept, limits of the interpretation of law are drawn quite broadly, although he simultaneously attempts to specify them clearly enough to prevent freedom of interpretation and not to jeopardize the certainty of law.

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CHANGE OF POSITION AS A DEFENCE IN UNJUST(IFIED) ENRICHMENT: SLOVENIAN LAW IN A COMPARATIVE PERSPECTIVE

Author(s): Karmen Lutman / Language(s): English Issue: 1/2019

If one person is enriched at the expense of another and there is no legal ground for retaining this enrichment, the law imposes an obligation of restitution upon the unjustly enriched recipient, which is subject to various defences. One of them is the defence that the defendant is no longer enriched (change of position). The Slovenian Code of Obligations does not contain an express general defence of change of position. However, there is a special provision, which allows a bona fide recipient of compensation for personal injury to rely on disenrichment if it subsequently turns out that the compensation was without valid legal basis. The paper examines whether disenrichment is inherent to the law of unjustified enrichment as a way of measuring liability, and consequently should the change of position defence be generally recognised, even though there is no provision allowing it in the Code or settled case law on this matter.

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