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This chapter explores the various legal responses to illiberal rule and the guiding rule -of - law principles in these times . The attempt to adhere to the rule of law during periods of political upheaval creates a dilemma
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The current paper is a research on the very special case of 1991 Gulf crisis and the following process through which UN imposed a structured and institutionalised compensation payment mechanism, on a war reparation logical basis. What makes the Iraqi case so special is an unprecedented UN involvement and surveillance regarding transitional justice, as well as political motivation of international actors, that use this system to control the Iraqi economy and influence its military, political and economical potential.
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The 10th edition of the International University of Human Rights, organized by the Romanian Institute for Human Rights in collaboration with the Romanian Association for the United Nations and the Club of Cheia “Victor Dan Zlătescu” took place at the resort of Cheia in the period 5-11 September. This jubilee edition was devoted to specific issues related to the end of the transition period concerning the harmonization of the Romanian legislation and institutions with the international standards for the protection and promotion of human rights, as well as the end of the UN Decade on Human Rights Education. The participants included representatives of Parliament, governmental bodies with specific powers in the field of human rights, the civil society, magistrates, notaries, lawyers, university professors, researchers.
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The problems of content left on the Internet after a user's death are very important. The traditional civil law contructions to date are not prepared to face their challenges. Social needs, modern reality, advanced technology - all this affects inheritance law. These issues need to be looked at more closely, and this text is intended to signal the issues of the so-called "first need" for analysis. One of its tasks is to undertake further discussion on possible needs for change. The succession law of the 21st century requires such changes.
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Legea definește detașarea transnațională ca fiind situaţia în care o întreprindere stabilită într-un stat membru sau pe teritoriul Confederaţiei Elveţiene, în cadrul prestării de servicii transnaţionale, detașează pe teritoriul altui stat membru salariaţi cu care are stabilite raporturi de muncă.
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This study is devoted to a criminal case brought before a court in the German Democratic Republic against Gerhard Pchalek in connection with his service as a prosecutor in the Third Reich. Pchalek served in the Polish territories incorporated into the Reich, in Bielsko and Katowice. He was a prosecutor in proceedings before special courts in Bielsko and Katowice, as well as before the Higher National Court in Katowice, in which he filed motions to sentence defendants to the death penalty. In 20 cases – as was determined by the District Court in Gera – Pchalek demanded the death penalty, which was then imposed and enforced. His act was classified as aiding in murder under the provisions of the German Criminal Code, and Pchalek was sentenced to 4 years in strict regime prison. The paper discusses the biography of Pchalek, the issue of post-war criminal liability of Nazi lawyers and the criminal trial before the District Court in Gera. The study uses a historical, formal and dogmatic method. The criminal trial in question is one of the few cases in which a Nazi lawyer was convicted.
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Međunarodni sud u Den Haagu (ICJ; Sud), glavni sudski organ Organizacije ujedinjenih nacija (OUN; UN), u Vijeću sastavljenome od 15 redovnih sudaca i dva ad hoc suca, koje su predložile države u međunarodnome sporu, Gambija i Mijanmar, dana 23. januara 2020. donosi Nalog kojim se državi Mijanmar određuju privremene mjere u parnici pred Sudom između navedene dvije države, članice UN (Gambija od 1965., Mijanmar od 1948.), pa time i stranke Povelje UN i Statuta ovoga Suda, u sporu koji se tiče Primjene Konvencije o sprječavanju i kažnjavanju zločina genocida (Konvencija o genocidu; Konvencija (objavljena u: United Nations, Treaty Series, vol. 78, p. 277)), koja je usvojena u Parizu, u Općoj skupštini UN, 9. decembra 1948. (stupila na snagu 12. januara 1951).
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The aim of this paper is to consider the mechanisms of legalization of use orphan works, based on a comparative analysis of the legal regulation in the United States, the EU and European countries; identify priority ways to reform and to develop proposals for improving copyright law in Ukraine. In the first section the concept of the orphan works and the circumstances which caused emergence of the orphan works are revealed. It has been established that the problem of orphan works mostly concerns works whose authors died and heirs cannot be found. In the second section the models of legalization of orphan works in the United States, Canada, the EU and European countries are analyzed and these interferences formed a proposal for Ukrainian legislation. In the third section the background of development of legislation of orphan works in Ukraine are studied. The neсessity to study the legal regulation of the United States, the EU and European countries in light of the recodification of the Civil law of Ukraine and seeking way of its renovation is substantiated. Developing effective mechanisms of using orphan works are stated to become relevant in the process of digitization of libraries’ collections and to have gained a new momentum in recent years. Its result has been provided open access to the works on the Internet.
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Preferential credits are those credits that guarantee a preferential satisfaction of the creditor with respect to unsecured and ordinary creditors. This preference is established in relation to the competition of creditors and is per se a benefit granted by the legal system to certain credits, which substantially coincide with those present in most European legal systems. In the Digest, for example, reference is made to the privillegium in favor of creditors who have administered their money to build, equip or purchase a ship. The present study aims to analyze its origins, regulation and graduation with respect to other preferential credits.
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On 26 February 2011, the United Nations Security Council (UNSC) adopted the Resolution 1970/2011. Operating under Chapter VII of the UN Charter, the UNSC unanimously decided to refer the situation in Libya to the International Criminal Court (ICC) according to article 13(b) of the Statute of Rome. Amongst all countries where “Arab springs” took place, this is the only country that fell under the jurisdiction of the ICC. Since then, three cases were opened and five warrants of arrest were issued. Libya is not party to the Statute of Rome, and in fact, with the exception of Tunisia1, no other countries where “Arab springs” took place have ratified the accession to the Statute of Rome. Libya therefore represents the second time2 in the whole history of the ICC, where the latest is investigating and judging over a country that is not a member of the ICC. However, the ICC is still investigating in Libya and information about collected probes are still concealed. Seven months after the referral to the ICC, on 16 September 2011, the UNSC decided to activate the political mechanism: United Nations Support Mission in Libya, UNSMIL. In the meantime, a series of transitional authorities have taken over the leadership of Libya, authorizing the production of interesting laws related to transitional justice and the establishment of truth and inquiry commissions. The situation in Libya shows as UNSC activated two mechanisms, to some extend working in parallel, that must find a way to coexist: in one hand, the ICC criminal proceeding, in the other hand, the transitional justice process supported by the UNSMIL.
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The evaluation of transitional justice processes has focused on assessing their effectiveness and efficiency with regards to attaining the objectives they were designed for. By focusing on positive or neutral effects, research has not yet systematically examined instances, where transitional justice processes had negative effects on the processes’ objectives. This article proposes to assess the effects of transitional justice through a risk perspective, which allows to incorporate the possibilities of both positive and negative effects on the referent object of their objectives. Using empirical examples from historical transitional justice processes, this article then proceeds to outline some of the mechanisms through which a transitional justice process can negatively impact the objectives it was designed for. This risk awareness contributes to a more comprehensive understanding of transitional justice processes and the article advocates to take possible risks into account when designing new processes.
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Since the ICTY, the role of international criminal courts has become more than the punishment of perpetrators. The Tribunal has been greatly praised, but also criticised for its inefficiencies, especially by local populations. The ICC tried to correct the ICTY’s model, but did it succeed? Through a comparison of the ICTY and its impact in Bosnia and Herzegovina, and the ICC and its impact in the DRC, some recurring criticisms appear. Some criticisms are strictly legal, but many are strongly intertwined with the perception of these institutions as transitional justice mechanisms. This situates these institutions into the larger context of transitional justice, rather than only forming criminal courts. This should not come as a surprise as these courts operate mostly in post-conflict societies in need of transitional and not only criminal justice. Without, the impact of the trials will remain meaningless because of the lack of an appropriate closure of the conflict. Hence, today, the ICTY and the ICC are perceived as the first step of transitional justice towards sustainable peace.
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In order to prosecute all the perpetrators of the war crimes committed on the territory of Bosnia and Herzegovina, and to bring into line provisions of its legislation with the world standards when it comes to the prosecution of those heaviest of crimes, Bosnia and Herzegovina has passed, after restoring the peace in 1995, a number of criminal codes. Due to the characteristic organisation of government, and fragmented competencies in prosecuting these crimes, this politics had not produced expected results. Right until 2003 and the adoption of the Criminal Code of Bosnia and Herzegovina, these crimes were prosecuted in accordance with various codes that were in force on the territory of Bosnia and Herzegovina. The intention of the Criminal Code of Bosnia and Herzegovina from 2003 was to avoid such fragmentation and bring into line the provisions of the criminal code with the attained level of development of the criminal law in the world. The Code itself did not cause any controversies. However, the later changes done to the Code have. Relying on the general principles of the international law, the legislator in Bosnia and Herzegovina set down that this Code may have a retroactive effect with regard to the events that took place in the period from 1992 to 1995. Moreover, given the number of cases and limited capacities, the Office of the Prosecutor and the Court of Bosnia and Herzegovina, may not be able to prosecute all the cases, and some are to be transferred to the other courts which are still applying “old” laws. With this, the matter of the applicable criminal code in such cases becomes ever more important.
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The article presents the concept and origin of the ideal rule of law in the theory of law and the characteristics that depend on the quality of positive law. The welfare of the rule of law depends on law and accomplishment in human affairs. Emphasis is also placed on the practical concept of universal values and application at the national and international levels. The central thesis is that the rule of law needs to be strengthened through preventive and promotional measures as a constitutional and common European value. The reason for that is the high degree of distrust of citizens in the rule of law and specifically in the judicial system of Bosnia and Herzegovina. A weak justice system poses a risk to the rule of law and democracy. This is the cause of instability of society, lack of protection of human rights and fundamental freedoms, lack of support in socio-economic development, fight against corruption, investment, and legal security. Consequently, we are far from making progress in achieving European standards and meeting the obligations of the Stabilization and Association Agreement. In stable systems, reforms strengthen citizens' trust in their institutions. There is no such leading force in the reform processes and responsibility toward the citizens of Bosnia and Herzegovina. The challenges for the rule of law in Bosnia Herzegovina that we are failing to deal with are justice in the service of citizens, the right to justice and a safer environment for the rule of law, ensuring integrity, efficient and independent judiciary, and weaknesses in the constitutional framework. At the EU level, respect for the rule of law is a shared responsibility of the Union's institutions and the Member States. The European Commission has prepared a review of the rule of law with measures to further strengthen it, especially in those Member States where weaknesses have been identified.
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This study investigates the importance of ensuring the real independence of the judiciary in the administration of justice as a basis for promoting the unity of judicial enforcement. It is stated that currently the reform of the judiciary has entered a new cross and hasty phase, during which there is a significant excessive intervention of any bodies and individuals in the organisation of the activities and functioning of the judiciary. It is substantiated that numerous reforms in the justice system have expanded the competence of the court, in particular, the highest court in Ukraine has been given the power to officially interpret laws. At the same time, it has been proven that this has not effectively improved the protection of the subjective rights of individuals, as well as the constitutional rights and freedoms of human and citizen. It is stated that other branches of government continue to systematically interfere in the judiciary with efforts to contain various media publications, various levels of propaganda, etc. Conclusions are drawn regarding the attempt to pass the process of interference of other branches of government in the judicial activity as an objective factor of "normality" of building a judicial system of a democratic state. It was proved that the countries in transition: 1) lack the programme document on the development of the judiciary; 2) have a factor of incomplete system construction and development of the judicial system; 3) lack the judicial segment in the reform of the judiciary (lack of introduction of new procedural tools to protect the rights of persons). It was concluded that justice can be fair under a set of conditions: 1) the relationship and interaction of the internal independence of the judge with the external independence of the judiciary; 2) a system of clear and transparent legislation that has the qualities of systematicity, unity, and consistency, i.e. the absence of the transit factor; 3) the unity of judicial law enforcement, which in practical terms lies in the rule of law, as a result of which convincing precedents are developed, supported by the entire legal community of Ukraine as a country of continental law.
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The purpose of the study is to cover the judicial rule as a way to ensure the rule of law in the judicial activity of the countries of the continental legal system, which are in a transitional period of their development when the transit of legislation is relevant. Scientific research methods include comparative, dialectical, prognostic, as well as methods of modelling, and correlation, which allowed to develop the definition of judicial supremacy as a special type of judicial enforcement by the courts of cassation during the development of legal conclusions and legal positions on the application of substantive law. There is a definition that judicial supremacy in the countries of the continental legal system is considered as a special, closely related to the lawmaking role, law enforcement procedure of the Supreme Court on resolving conflicts between the ideal of a legal provision and a persuasive precedent of a specific law enforcement situation. Therewith, a categorical conclusion is made regarding the inadmissibility of tracing the approaches of common law countries, the development of judicial precedents in its pure form into the format of judicial law enforcement of the countries of the continental legal system. It was proven that the rule of law is the result of the privileged power of the Supreme Court during the review of court decisions on the interpretation of laws. However, this power is not the highest, because the interpretation of constitutional provisions is a unique function of the Constitutional Court of countries where there is a model of centralised constitutional control.
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Any type of foreign investment, including those belonging to investors from the Member States of the European Union, operates in compliance with certain conditions and standards of legal treatment established by international law. This study includes a case example of the conditions for establishing a foreign investment in the financial - banking field in two EU Member States: Romania (EU Member State since 1 January 2007 and pending for acceding to the Schengen Area) and Lithuania (EU Member State since 1 May 2004 and member of the Schengen Area since 21 December 2007). It is a recognized fact that, following the entry into force of the Lisbon Treaty, FDI is now within the exclusive competence of the EU. The Treaty recognizes that this new EU competence is a double challenge, on the one hand, for the management of (existing) bilateral investment treaties and, on the other hand, for defining a European investment policy that meets the expectations of investors and beneficiary states, but also to the EU’s foreign policy objectives and broader economic interests. The United States and Canada are among the first countries to adapt their BIT models to limit interpretive capacity through arbitration and ensure better protection of their public intervention space.
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When conducting research on the evolution of the principle of writtenness and the electronic way contained in the Act of 14 June 1960 – Code of Administrative Procedure, the following research problems should be pointed out. Firstly, whether the legislator maintains the conditions for thorough and fast action of the public administration bodies in a given case, using the simplest possible means leading to its settlement. Secondly, whether the changes do not lead to the exclusion of citizens, or a given group from the possibility of participation in the case. Finally, the research problem oscillates around the evaluation of the correctness of functioning of the adopted regulations in the current legal state, including whether they do not raise interpretation doubts or carry negative consequences for people who want to settle their case before a public administration body. Bearing the above in mind, the aim of the research conducted for the purpose of this article was to determine and assess whether the Polish legislator aims to eliminate the principle of writtenness from the administrative procedure. Conducting research in this regard, the following research methods were used: the historical-comparative method, used for the analysis of previously binding legal regulations, the so-called dogmatic-legal method, used for the study of legal provisions regulating the principle of writtenness in administrative proceedings, the empirical method, used for the analysis of judicial decisions, and the theoretical-legal method, used for the analysis of literature.
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The article focuses on actual challenges of administrative justice in the Slovak Republic and Poland. The legal crisis and the crisis in law in both countries have common signs and necessarily differences. The authors analyze selected problems of administrative justice, which are connected by the current state of society marked by the crisis. In the part dedicated to the Slovak Republic and Poland, emphasis is placed on the crisis associated with changes in the judicial system and - additionally - in Poland it is the crisis associated with changes in the law caused by the COVID-19 pandemic. Due to the nature of the researched topic, we have applied analysis, synthesis as well as comparison of legal regulations in the processing of this issue. However, in addition to the mentioned scientific methods of research, we also used scientific literature, case law and analogy of the law. The article can be beneficial by researching the development of problems associated with administrative justice in states with a similar historical development of society.
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Review of: Genocid nad Bošnjacima, Srebrenica 1995–2020: Uzroci, razmjere i posljedice, Muamer Džananović, Zilha Mastalić-Košuta and Merisa Karović-Babić (Eds.), Institut za istraživanje zločina protiv čovječnosti i međunarodnog prava Univerziteta u Sarajevu - Univerzitet u Sarajevu - Univerzitet u Tuzli - Institut za historiju Univerziteta u Sarajevu, Sarajevo – Tuzla, 2021.
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