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MIR MIROVNIM SREDSTVIMA: RESTORATIVNI MEHANIZMI TRANZICIJSKE PRAVDE

Author(s): Mirza Buljubašić / Language(s): Bosnian Issue: 1/2020

The exclusive application of judicial or retributive responses to mass atrocities and serious human rights violations was left in the twentieth century. Today, postconflict and pre-democratic transitional states have the need to, or to a significant extent, are applying(-ed) non-judicial or restorative mechanisms of transitional justice. This paper explains the concepts and mechanisms of restorative transitional justice by referring to exemplary cases; it critically analyzes the functionality of restorative mechanisms of transitional justice. The society in Bosnia and Herzegovina is still in the phase of transition, a phase of peace building, therefore this paper has social relevance. Although, much is written about transitional justice in Bosnia and Herzegovina, there is a lack of a systematic account of restorative mechanisms. At least theoretically, effects of the non-judicial mechanisms are much stronger when compared to the judicial mechanisms. It can be concluded that structural and resource problems are preventing adequate enforcement of nonjudical mechanisms. Additional empirical research in the field of transitional justice is needed to determine the causes of disadvantages, advantages and contextual phenomena.

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SOME REMARKS ON THE SPECIALIZED LAWYER PROJECT

Author(s): Cristina Dobre / Language(s): English Issue: XIX/2020

Before bringing to the fore a subject whose urgency, if not opportunity, is at least debatable, we consider that it would be much better and more appropriate for the bodies of the profession to gather all their power to concentrate on these issues which pose a enormous pressure on lawyers and which creates mental and financial blockages due to which many are pursuing their profession with increasing difficulty and topics such as of specialization will be proposed only after the real emergencies facing the profession will receive prompt, real and effective, fair and, last but not least, effective reactions.

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THE IMPACT OF CORRUPTION IN EUROPE

Author(s): Dragoș-Andrei Nedelcu / Language(s): English Issue: XIX/2020

The corruption phenomenon has a negative impact both regarding the accession of a state to European Union and the sustainability of full integration in its structures, especially in case of states which do not manage to implement efficient anti-corruption strategies and which do not align their domestic legislation with the community legisla¬tion. The corruption remains a major problem, not only in the developing countries, but it is a problem which prevents economic growth, weakens the state of law and under¬mines the legitimacy of institutions.

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THE DRAFTING OF JUDGMENT GROUNDS OF APPEAL AFTER CEASING TO BE A MAGISTRATE

Author(s): Costin-Cristian Pușcă,Marian-Mădălin Pușcă / Language(s): English Issue: XIX/2020

The issuance of the court decision also implies the presentation of the grounds that were the basis of the solution adopted by the judge who participated to the trial of the case. However, in the event that the court decision was not drafted by the judge of first instance prior to the termination of its capacity of magistrate, the drafting of grounds by another person is equivalent to a lack of motivation, a circumstance that constitutes a violation of the right to a fair trial.

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TYPOLOGY OF THE LEGAL ASSISTANCE CONTRACT

Author(s): Elena-Cristina Savu / Language(s): English Issue: XIX/2020

In the arena of legal relations, there is a contract that has been used for several decades, but which has been less analyzed in the specialized doctrine and practice, the legal assistance contract. The low interest in researching the typology of this contract was probably due to the particular legal relations in which the legal assistance contract is incidental - in the lawyer-client relationship - but also to its confidential nature, but as the professional responsibility is developing and the legal assistance contract is the source, we consider particularly useful the analysis of the typology of this contract, a contract that due to the complex generated effects it goes behind the scene of the lawyer-client relationship in the light of the ramp, on the stage of juridical dissection.

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Reforma justiției și funcționarea ei pe baze noi, în concordanță cu dreptul european – condiție esențială pentru asigurarea apărării și valorificării drepturilor tuturor justițiabililor

Author(s): Simona-Maya Teodoroiu / Language(s): Romanian Issue: 3/2004

The year 2004 is one of particular importance in the context of the efforts taken for the conclusion of the negotiations for accession to the European Union. In this context, the reform of justice is, alongside the reform of administration, a key element with the accession criteria. The justice reforming process has been accelerated once the revision of the Constitution was done, with the aim of respecting the European standards related to independence of justice, judicial security and the quality of the judicial action. The reform of the legal system primarily means to guarantee independence of justice, with emphasis on the strengthening of the role of the Superior Council of the Magistracy and the legal guaranties for the elimination of any possible political interference with the legal action. As far as the resolution of cases within a reasonable time limit is concerned, the jurisprudence of the European Court of Human Rights related to the limitation of the excessive length of legal proceedings was a pertinent and acute signal for the initiation of legislative amendments, in conformity with the European exigencies of the European Convention on Human Rights. Thus, the constitutional amendments of the Criminal Procedure Code were meant to strengthen the procedural guaranties as well as ensure an adequate framework for the resolution of cases within a reasonable time limit.

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Independența justiției – factor decisiv în exercitarea drepturilor și libertăților fundamentale

Author(s): Ionel Didea / Language(s): Romanian Issue: 3/2004

Aware of the fact that the citizens' rights and freedoms will lack effectiveness unless human rights are laid down in the constitutional provisions and measures to guarantee them are adopted by every State, the Romanian law-maker initiated vast efforts aiming full instauration of a spirit of justice, which necessarily involves strengthening independence of justice. It is not long ago that Parliament passed the three vital acts to the reform of the Romanian legal system: the Act on the judicial organization, the Act on the status of magistrates and the Act on the Superior Council of the Magistracy – an essential step forward to place the Romanian legal system within European coordinates, meant to strengthen independence of justice and increase the latter's role as public service at the disposal of citizens. Reintroduction of the principle of good fellowship for the resolution of cases in the first resort will be not only a guaranty for impartiality and mutual control among judges, but also for improving the quality of the pronouncements, which is envisaged to entail gradual reduction of the number of cases where remedies at law be used. As far as the magistrates' careers are concerned, the essential role lies with the Superior Council of the Magistracy, which will hold exclusive powers in terms of decisions regarding the magistrates' careers, their disciplinary accountability as well as their defence against actions affecting their independence and impartiality. Our recent legal practice has proved, by explicit references to the jurisprudence of the European Court of Human Rights included in the pronouncements, that the Romanian courts make more and more use of this jurisprudence.

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Reforma justiției. Aspectele legislative și instituționale

Author(s): Monna-Lisa Belu Magdo / Language(s): Romanian Issue: 3/2004

The Judicial Organization Act, the Status of Magistrates Act and the Superior Council of the Magistracy Act are the regulating framework establishing the principles and the goals in terms of organization and functioning of justice. By reducing the powers of the Ministry of Justice, in its capacity as administrative authority, in terms of the good organization and administration of justice, as a public service, the three acts represent the organizational and functional mechanisms for the achievement of a unique, impartial and equal-for-all justice, by independent judges subject to no one but the law. The National Anti-Corruption Parquet is also a creation meant to combat corruption crimes. It exercises its powers within the entire territory of Romania, through prosecutors trained to combat corruption crimes. A number of powers related to the organization and the functioning of the courts and the parquets were removed from the competence of the Ministry of Justice to that of the Superior Council of the Magistracy, which represents an important step forward for the separation of the judicial authority from the executive authority of the Ministry of Justice. The cases when the victim is entitled to redress for prejudices caused by judicial errors committed during the criminal trials are established by the Criminal Procedure Code. The victim's right to redress for prejudices caused by judicial errors committed in other trials than criminal ones shall only be exercised if the magistrate's criminal or disciplinary accountability for a deed committed during the trial was established under a final pronouncement and only if such deed is one to cause a judicial error.

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THE ROLE OF THE NATURAL ENVIRONMENT IN THE LEGISLATION ACTIVITY. SOME REFLECTIONS

Author(s): Ramona Duminică,Daniela Iancu / Language(s): English Issue: 1/2020

The current article analyses the role of the natural environment in the emergence and evolution of the legal norms. The environment represents a complex factor which influences the human socio-economic and political activities and behaviours, who in their turn, find their regulation in legal norms. The role of this factor should not be exaggerated, but neither should it be ridiculed because it exerts influence on the legislative activity, just as legal norms exert an influence on its existence and evolution, as we will show in the study.

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Stosowanie tymczasowego aresztowania względem członka zorganizowanej grupy przestępczej w kontekście prawa jednostki do wolności

Author(s): Katarzyna Skoczylas-Wardzyńska / Language(s): Polish Issue: 4/2020

The article analyses grounds for application of pretrial detention in respect of individuals who have been charged with the criminal offence of participation in an organized criminal group or with participation in an organised criminal association aiming at committing a criminal offence. The paper addresses two presumptions: 1) the presumption of fear that a suspect or the accused shall obstruct criminal proceedings because of their participation in an organised criminal group; 2) the presumption that the suspect or accused shall attempt to obstruct the proper conduct of the proceedings because of the threat that they will be severely punished. The author tries to answer the question whether the presumptions underlying application of pretrial detention at the early stages of criminal proceedings are sufficient for extension of pretrial detention. This is particularly important given the fact that these presumptions operate in schemes which might raise fears that orders of pretrial detention are used as an element of criminal policy against criminal groups. It must be noted that application of pretrial detention enters the sensitive realm of human rights and civil liberties. On the other hand, a failure to apply pretrial detention makes it difficult or even impossible for law enforcement authorities to effectively break up criminal networks and prevent them resurfacing. The fight of law enforcement authorities against organised crime requires application of adequate custodial and non-custodial measures by criminal justice system but is connected with a need to respect personal freedom guaranteed by the Polish Constitution and international treaties.

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Wdrożenie do polskiego porządku prawnego rozporządzenia Parlamentu Europejskiego i Rady (UE) w sprawie działań zapobiegawczych i zaradczych w odniesieniu do wprowadzania i rozprzestrzeniania inwazyjnych gatunków obcych

Author(s): Stanisław Dziwisz / Language(s): Polish Issue: 1/2021

The article presents both European and international aspects related to the protection of biodiversity and ecosystem services against invasive alien species. The author also presents national regulations and assesses the fulfillment of the requirements of the Regulation of the European Parliament on the Prevention and Management of the Introduction and Spread of Invasive Alien Species both by the provisions of the current Nature Protection Act and the draft Alien Species Act. He also draws attention to the problems of communes regarding combating Caucasus hogweed, especially in connection with the rejection of the possibility of issuing order regulations aimed at their elimination.

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Pasikowski’s ‘Pigs’ as an Illustration of Vetting in a Transitional Society

Author(s): Mateusz Grabarczyk / Language(s): English Issue: 1/2021

Pigs, a 1992 movie directed by Władysław Pasikowski, has become an iconic picture over the years, growing into a source of quotes and becoming a cult classic. The film, while remaining commercially attractive, outlines many problems within transitional justice and opens a discussion regarding the vetting of the SB officers carried out at that time, including the selected model. The plot of the film takes place in 1990, the period of political transformation in Poland after the fall of communism. Before the purely sensational action comes to the fore, the movie is largely about a reform of the MSW and the SB, about vetting of its officers and their fate while trying to find themselves in the new reality. It also shows that it is remarkably difficult to carry out reforms simultaneously in many fields: political, economic and social, and that it may be the source of a crisis. The aim of this article is to present Pasikowski’s Pigs as a film that demonstrates the practical issues related to one of the mechanisms used in the framework of transitional justice, namely the vetting process. The movie as an artistic representation of individuals subjected to vetting opens discourse on transitional justice and the problem of dealing with undemocratic system. The paper concentrates on a general outline of the movie, paying attention to the vetting committees and their function within the framework of transitional justice. While presenting the normative model of officers’ vetting and juxtaposing it with the image shown in the film, the author displays basic moral and social problems related to the vetting.

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Improving the practice of Competitive Strategies for the protection of Intellectual Property: the law and economics approach

Author(s): Vladlena LISENCO / Language(s): English Issue: 1/2021

The article contains analyze of the legal regulation of the protection of intellectual property rights and practice of competitive strategies for the protection of intellectual property using best legal practices of EU countries and Eurasian Economic Union. Legal confirmation of intellectual property right, in fact, means that the state realizes the importance of culture and progress for the preservation and development of society. Protection of the results of creativity, intellectual activity is associated with the protection of individual freedom, human rights. The features of the competitive environment and competitive mechanism in the innovation economy has been analyzed as well as influence of competition on the behavior of economic agents in the innovative economic system. The paper includes analyzes the logic and economics of non-competitive behavior of companies and states in the EU single market and examines the functions of the Directorate of the European Commission for Competition. The EU competition policy tools are flexible and that they take into account the most diverse interests of the single market. The policy of the Eurasian Union as a whole is aimed at the implementation by the member states of measures in competitive policy and contributes to the launch of joint research and industrial projects, allows to increase the competitiveness of products, reduce production costs, ensure joint access to the external market.

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Explanatory Strategies as Tools Employed to Communicate Legal Knowledge to a Lay Audience in the Judicial Setting

Author(s): Olga Boginskaya / Language(s): English Issue: 35/2021

The article analyses the role of explanatory strategies employed to communicate legal knowledge to a lay audience in the judicial setting where the communicants are often asymmetrical. In a jury trial, the important role of the addressee makes it obligatory to identify discursive strategies that improve the interaction of professional and lay courtroom participants. The focus on the laypersons, their phenomenological experience and knowledge makes courtroom discourse dialogical, and intensifies its interactive characteristics. Clarity of courtroom discourse depends on the ability of a speaker to switch from the professional code to lay language, explain legal terms through lay concepts, recontextualize legal knowledge using a series of discursive tools.

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REGULATORY CONCEPTS FOR INTERNET PLATFORMS

Author(s): Ratislav Funta,Peter PLAVČAN / Language(s): English Issue: 35/2021

Several internet platforms control the central interfaces of the internet and have acquired enormous economic and social importance. These internet platforms show tendencies towards monopoly and expansion. An analysis of various existing regulatory concepts clarifies limits with regard to the challenges in connection with internet platforms. This thesis deals with the phenomenon and problem areas of dominant internet platforms, examines whether these can be adequately countered by existing regulatory concepts and provides recommendations on how these could be better captured by the regulations. This thesis explores the question of how internet platforms are regulated today, i.e. which laws and private regulations currently apply. Correspondingly, specific regulatory concepts are examined in broad detail. The analysis starts with various selfregulation forms, followed by regulatory concepts under competition law, which are intended to ensure the functionality of competition. These are transformed into regulatory concepts for the protection of consumers and their data and finally into comprehensive state forms of regulation in connection with monopolies.

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Judykatywa na straży zasady sprawiedliwości. Zakres władzy sądów w kształtowaniu prawa na przykładzie orzeczenia Najwyższego Sądu Rzeszy z dnia 28 listopada 1923 roku i teorii Ericha Kaufmanna

Author(s): Jerzy W. Ochmański / Language(s): Polish Issue: 13/2020

Nowadays, it seems obvious that there are strong political ties between the legislature and the executive, whereas in a situation of a tyrannical parliamentary majority the government is de facto deprived of the attribute of at least relative independence from the party's "top". The political will, the source of which are the people, is being distorted: the parliament and the government pursue their own goals, in dissociation not only from some abstractly conceivable public interest but also from the principles of order set out in the constitution. It is therefore the role of the judiciary to correct the executive and the legislature. The judicial power to review statutes became apparent in the decision of the Reich Supreme Court of 28th November 1923. The theoretical justification for the power of judges and courts came from Erich Kaufmann.

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ZLOČIN BEZ KAZNE – KRIVIČNOPROCESNI ASPEKTI ODLUKE SUDA U KOLMARU U SLUČAJU HARADINAJ

Author(s): Jelena Dinčić,Draško Đurović / Language(s): Serbian Issue: 1-2/2018

Ramush Haradinaj was arrested on January 4, 2017 by French border police upon his arrival at Basel-Mulhouse-Freiburg airport, based on an international arrest warrant issued by the Serbian authorities in 2004. The Court of Appeal in Colmar has rejected request to extradite him to Serbia for prosecution on suspicion of war crimes during the armed conflict in Kosovo in 1999, ordering his release instead. As soon as the decision has become final and enforceable, it was provided to the authors of this article who conducted a legal analysis of the procedural aspects of the Haradinaj case before the Court of Appeal in Colmar. The focus of this article is on the main procedural defaults made by the petitioner, but it also provides an overview of how politics won out over the law in this case. By making (un)intentionally fundamental errors, it seems that the authorities of the Republic of Serbia, gave pretext to the Court of Appeal in Colmar for not extraditing Ramus Haradinaj to Serbia. However, it does not entitle the appellate judges in Colmar to overlook the legal arguments in favor of his extradition.

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THE BIRTH OF PRISONS – EVOLUTION OF AN IDEA

Author(s): Nikola Lakobrija / Language(s): English Issue: 01/2021

A society without norms does not exist, just as norms that are not violated do not exist. The reaction of society to violation of basic norms on which it itself is based largely depends on the epoch, that is, on the value core on which the society itself is based. Imprisonment has always existed, but it has changed drastically throughout history— from imprisonment without purpose and meaning, alongside torment and suffering, to modern forms of deprivation of liberty and modern prisons. The ideological revolution has changed the value basis of society, thus changing all the norms that had arisen from such values. The perception and expectations of punishment have changed and, from the 18th and 19th centuries onwards, a new concept of prison as an institution of control, correction, i.e. re- socialization has been developing. Prison has ceased to be seen as hell on earth and became an instrument of society’s influence on those who dare to violate social norms. This paper follows this evolution, that is, the development of prisons and the idea of imprisonment from holes and lagoons to modern penitentiaries.

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PRVI ELEMENT KOMANDNE ODGOVORNOSTI – POSTOJANJE ODNOSA NADREĐENI – PODREĐENI U MEĐUNARODNOM OBIČAJNOM PRAVU

Author(s): Jasmina Ćosić,Sedin Idrizović / Language(s): Bosnian,Croatian,Serbian Issue: 1/2021

Proper understanding of the constitutive elements of the command responsibility is the key to its proper application in practice, and the relationship between superior and subordinate as well as effective control is certainly one of the more complex issues that is insufficiently elaborated in the professional public and the public at large. The constitutive elements of the superior’s command responsibility have their roots in the customary international law. One of these elements, without which there is no command responsibility of the superior, is the existence of a superior-subordinate relationship, which at its core implies existence of the effective control of the superior over the subordinate. The ad hoc tribunals of the former Yugoslavia and Rwanda paid particular attention to interpretation of this element of command responsibility in their jurisprudence. The goal of the authors is to show the context in which this first element of command responsibility gained “its place” in the international customary law and international conventional law as well as to show how the first element has been interpreted in jurisprudence. Therefore, in the context of this first element, the paper deals with the analysis of customary international law, international agreements and individual decisions of international ad hoc tribunals.

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The Trials of the War Criminals from the Iași Pogrom: Investigations, Convictions, Acquittals, Releases

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The Trials of the War Criminals from the Iași Pogrom: Investigations, Convictions, Acquittals, Releases

Author(s): Daniel-Valeriu Boboc / Language(s): English Issue: 14/2021

The trials of the war criminals involved in the Iași Pogrom were part of the general trend,at the end of World War II, to punish those who had killed civilians during the conflagration,in order to prevent further massacres in future wars. Romania was among the countries committed, through the convention with the United Nations, to punish the perpetrators. A legal framework in accordance with the Romanian legislation and with the principles established at the end of the war was adopted for this purpose. Adopting legislation and its implementation was a cumbersome process, meaning that repeated changes and adjustments were needed. The most important trial, that of the Iași Pogrom, took place almost four years after the beginning of the investigations. It was followed by other trials, soon after. The communist authorities tried to turn the trials into an ideological construct through mediacoverage, which was speculated by those who claimed the trials were politicized. In reality,those convicted for the crimes were proven guilty in court, and those in power were forced to accept the extension of investigations and convictions to others, based on the victims’ testimonies. The delay in the trials was a factor for the large number of people who escaped conviction, while the adoption of decree no. 421/1955 entailed the release of a large number of convicted persons, before the end of their sentence. The profile of convicted persons can be outlined from the victims’ statements. Not only employees of state institutions took part in the Pogrom, but neighbors, friends, co-workers, etc. In the case of certain categories, thenumber of convictions was higher than in others. This was due to the fact that local perpetrators were easier to identify, while others had a special status, mainly the military.

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