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Zjawisko korupcji w Polsce i Norwegii – zarys charakterystyki prawnoporównawczej

Author(s): Paulina Grabarz / Language(s): Polish Issue: 29/2016

Corruption is present in every country in the world. The Scandinavian countries are leading on the lists of the least corrupt countries. Norway is however with the highest rate of corruption. The paper raises the issue of corruption in Poland and Norway, taking into account the statistics illustrating the scale of this phenomenon. The author also compares the outline of criminal laws of both countries and tries to answer to the question what affects the number of committed crimes, taking into account the methods of counteracting them. The article includes a description of the so-called “nordic factors” that are characteristic of Scandinavian countries and which significantly contribute to the reduction of corruption.

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Ściganie przestępczości White Collar Crime w Polsce i Japonii

Author(s): Jakub Łukasz Pacławski / Language(s): Polish Issue: 29/2016

At the beginning of the article author argues general issues concerning crime in Japan. In the next part he explains factors impact on progress the corruption and crimes such as White Collar Crimes. Author also describes organization of prosecution in Japan and Poland according to new Polish prosecution act passed on 28th January 2016. Furthermore two main legal rules are compared: opportunism and legalism. The summary points out cultural differences and their influence on a legal system.

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Wybrane zagadnienia związane z projektem rozporządzenia Parlamentu Europejskiego i Rady w sprawie ustanowienia Prokuratury Europejskiej

Author(s): Michał Toruński,Krzysztof Michalak / Language(s): Polish Issue: 29/2016

The Lisbon Treaty has brought major changes in the functioning of the European Union, including in the area referred to in Art. 4 section 2 point j of the Treaty on the Functioning of the European Union, which is an area of freedom, security and justice. It should first be noted that characteristic for European Union “pillar structure” has been liquidated. Former pillar III is nowadays covered by a single legal regime. Without a doubt falls conclude that the Lisbon Treaty has made a huge step towards the approximation of the laws of the Member States. Art. 86 TFEU introduces interesting novelty in this plane, providing for the possibility of establishment of an European Public Prosecutor’s Office, which is the EU body for investigating, prosecuting and bringing to justice the perpetrators of crimes against the financial interests of the European Union. Analysis of selected provisions of the Regulation on the establishment of an European Public Prosecutor’s Office leads to conclusion that draft regulation is not deprived of interpretational doubts. For instance there is a forum shopping threat. Fair trial standard and legislative technique have also been violated.

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Tolerancja, która boli. Jak nie wydłużać kolejki po klauzulę sumienia

Author(s): Andrzej Draguła / Language(s): Polish Issue: 667/2017

W roku 2008 w Wielkiej Brytanii ruszyła kampania pod hasłem „One Law for All” (Jedno prawo dla wszystkich), której celem było przeciwstawienie się próbom wprowadzenia elementów szariatu do brytyjskiego systemu prawnego. Pojawiły się bowiem informacje, że trybunały sądowe w niektórych miastach Wielkiej Brytanii są gotowe, na prośbę obywateli muzułmańskich, do stosowania zasad szariatu w przypadkach rozwodu, konfliktów finansowych czy przemocy domowej. Próby te spotkały się z protestem społeczności brytyjskiej. Byłoby to bowiem faktyczne zaakceptowanie istnienia obok siebie dwóch odrębnych (choć działających w ograniczonym zakresie) systemów prawnych. Zamiast „prawa dla wszystkich” byłoby „prawo dla niektórych”.

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Przypływ który nie unosi żadnej łodzi. Unia Europejska wobec rozwoju transnarodowej ekonomii krymigracyjnej

Author(s): Marek Rewizorski / Language(s): Polish Issue: 10/2016

The author of this article focuses on investigating the relationship between ‘explosion’ of irregular migration to Europe and increasing importance of transnational criminal networks.The starting point is assumption that the transnational economy of crimigration (TEC) is driven by a non-legal activity of private actors (supply side) and potential migrants who report the demand for this kind of services, often not realizing the full extent of consequences of entry into contractual relationships with groups of smugglers (the demand side). It is also assumed that dynamics of the transnational economy of crimigration is one of the main causes of rising wave of irregular migration and the ‘migration crisis’ in the European Union.

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Dayton Peace Accords Two Decades After: Constitutional Settlement as Serious Obstacle to the Creation of a Functional State

Author(s): Zarije Seizović,Goran Šimić / Language(s): English Issue: 2/2016

Twenty-one years after entering into force of the General Framework Agreement for Peace in Bosnia and Herzegovina (the Dayton Agreement), it seems that the political situation in Bosnia and Herzegovina has not significantly changed. The basic achievements of the Dayton Agreement, such as stopping the war and country’s democratization and institution building processes are evident, however the agreement failed to create a politically stable functional state and the united nation accepted by all its citizens. On the contrary, the agreement significantly contributed to the creation of divided society (and political community) composed of three ‘constituent peoples’ and others. Neither social nor political community stood the test of time. The country could not meet the requirements and standards set by the European Union, especially the constitutional reform that is claimed to be the precondition to other reforms. Then, despite agreement’s significant accomplishments in the field of human rights protection it generated State political structure based on the principle of the three constituent peoples’ exclusive ethnic representation, all at the expense of rights of individual.

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Między polityką a prawem, czyli o sprawiedliwości okresu przejściowego

Author(s): Adam Czarnota / Language(s): Polish Issue: 27/2015

The article is a theoretical study of legal strategies introduced in states under political transformation (post-communist states in Europe, Australia, South Africa) to deal with the effects of former political regimes. As the author argues, opening a discussion concerning the evils of former regimes is important for raising public engagement in building a new state of law. Legal retribution expresses the public contempt for committed crimes and reasserts the existence of public norms. However, following the arguments of Judith Shklar and Niklas Luhmann, the author warns against the inner limitations of legal instruments in defining the space of social and moral relationships. An antidote against the possible political instrumentalization of law and the dominance of legal regulations in public sphere should be found therefore in independent historical research and cultural debate that seeks for a deeper understanding of the past.

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Around the Bloc: Russia Extends Detention for Ukrainian Teen Terror Suspect

Author(s): TOL TOL / Language(s): English Issue: 05/01/2018

Family says Pavlo Hryb was abducted by the Russian FSB when he visited Belarus to meet a Russian girl.

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ISTINA O SREBRENICI I GENOCIDU NAD BOŠNJACIMA: U POVODU ŠESTE KNJIGE ''MONUMENTA SREBRENICA''

Author(s): Sead Selimović / Language(s): Bosnian Issue: 9/2017

The author writes about the genocide of the Bosniaks of Srebrenica and the significance of the edition of the "Monument of Srebrenica". This edition, published by the Institute for the Protection and Use of the Cultural, Historical and Natural Heritage of the Tuzla Canton, is fighting for the truth about Srebrenica with its research and publication of works. The publication deals with various issues from the history, politics, law, economy, society and culture of Srebrenica. Because "those who do not know their history, are condemned to repeat it." In book number 6, seven papers were published on 190 pages. All works have been translated into English.

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Refleksyjność a badania nad sprawiedliwością tranzycyjną

Author(s): Michał Krotoszyński / Language(s): Polish Issue: 2/2015

The article explores ways in which the notion of reflexivity can apply to the research on transitional justice. First, the article describes reflexive considerations concerning the state of the field itself. Then, the reflections on transitional justice measures are characterized, focusing primarily on the discussion on the use of criminal trials. Finally, the article portrays how collective and individual identity can be reshaped during the transition. The article argues that research on dealing with the past is par excellence reflexive, as the debate challenges even the most basic ideas connected with transitional justice.

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"NASCITURUS PRO IAM NATO HABETUR QUOTIENS DE COMMODIS EIUS AGITUR". РИМСКОТО ПРАВИЛО И СЪВРЕМЕННОТО МУ ПРИЛОЖЕНИЕ

Author(s): Malina Novkirishka- Stoyanova / Language(s): Bulgarian Issue: 2/2017

The report presents the rule "Nasciturus pro iam nato habetur quotiens of commodis eius agitur" as it exists in Roman legal texts in relation to the ancient Greco-Roman concept of personae, different from that which we conceive today. In this context, the capacity of human embryo to be subject of right comes from social, religious, medical, moral and especially legal recognition. We discuss some of the heritage aspects of this rule, as well as the issues of early human life, abortion, infanticide and murder of pregnant women, recognition of the newborn by the father, State, etc. Some decisions of the Roman jurisprudence are surprisingly topical and are part of many discussions on its bioethical and legal aspects.

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Suočavanje sa prošlošću i vizija budućnosti

Author(s): Salih Fočo / Language(s): Bosnian Issue: 1/2018

Dealing with the past is highly complex social and individual process. It is complex because it belongs in area of lived negative experiences from the past. To overcome the past means to overcome present which belongs in the category of future. Only the societies that are turned towards progress and prosperity have the strength to overcome present and leave the past behind in space and time. In our social conditions past is a source of new misunderstandings and place for new conflicts that are derived from past events. From that perspective and with those feelings and with that kind of political values citizens, nations and political orientations are slaves of social captivity. From this captivity it is almost impossible to create new progressive movements. In captive society we are dealing with “captive mind” which functions as collective memory on suffering and tragedy. From the perspective of present day we have tendency towards assimilation of facts that occurred in the past, and that fact, is start point for new conflicts and new social, national, and human injustice. Social code like this one did not give desired results, apart from repeating the tragedy. In new society we need radical turn and breakthrough from captive collectivity and collective memory. This turning point is something that is happening in return towards individuality and leaving of the collective hysteria and agnostic memory behind.

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AРБИТРАЖЪТ В АДМИНИСТРАТИВНОТО ПРАВОРАЗДАВАНЕ НА РИМСКАТА ПРАВНА СИСТЕМА

Author(s): Antonio Fernández De Buján / Language(s): Bulgarian Issue: 2/2015

The arbitration procedure as a method of settling legal disputes is no contempo-rary achievement. It was in fact developed and quite commonly used in ancient times as well, particularly in the Greco-Roman world. At first it was a tool to settle cases in the field of contract and commercial law – or, in general, private law – but with the passage of time it also became applicable to international, federal and administrative legal disputes. Both types of arbitration (in public and in pri-vate law) were based on the agreement (compromissum) between the parties to the case to allow their legal dispute to be settled by an impartial third party, whose decision would be held as legally binding. The main difference in fact lies in the parties themselves – in public arbitration it was the states or state institu-tions who, while exercising their powers, chose to enter an arbitration procedure. Apart from these general conclusions, the article also presents an in-depth analysis of actual known Roman-era international, federal and administrative cases that were settled through arbitration, many of them being connected to the usage of public waters, border delimitation, taxes and tax revenues etc.

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The Impact of Constituent Peoples' Principle on Democratical Transition and Human Rights Protection in Bosnia and Herzegovina

Author(s): Selma Tabaković Jašar / Language(s): English Issue: 9/2018

For the first time the concept of 'constituent peoples' was mentioned and integrated as a constitutional category in Bosnia and Herzegovina based on provisions in Constitution of the Federation of Bosnia and Herzegovina. That happened 1994, by signing the Washington Agreement which at first ended war in one part of Bosnia and Herzegovina and established this entity. This term was brought as a novelty of constitutional law in general. 'Bosniacs, Croats and Serbs as constituent peoples, along with Others, and citizens of the Federation of Bosnia and Herzegovina, which is a constitutive part of the sovereign state of Bosnia and Herzegovina, determined to ensure full national equality, democratic relations and the highest standards of human rights and freedoms, hereby pass the Constitution of the Federation of Bosnia and Herzegovina.' This new state principle, then required as a temporary solution, became one of the crucial parts of constitutional provisions on state and entity level and provided the base core of democratic creation and functioning of the whole system and order in early post-conflict stage. The main purpose for introducing into the constitutional order and legislation system of Bosnia and Herzegovina was to provide equality on state and entity level, proportionality and parity, particularly in future legal actions after the war time, during the rule of law establishment together with the organization of parliamentary and government institutions. Equality of three ethnic groups together with the general formulation 'citizens' included in the Constitution of Bosnia and Herzegovina, has to be assured in normative and its true meaning, but none of the constituent peoples' can not achieve their own constitutionality without the other two. Unfortunately, due to misconception and misuse of 'constituent peoples' concept, Bosnia and Herzegovina ocasionally get's into the visible discrimination of 'others' and 'citizens' who don't identify themselves belonging to one of the three ethnic groups, along with struggling on democratic consolidation as a part of highly important transitional reform and justice.

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“Purifying” Bosniaks: The Rise of Salafism in Bosnia and Herzegovina: Implications on Transitional Justice and Human Rights

Author(s): Nejra Veljan / Language(s): English Issue: 9/2018

The 9/11 attacks in the US in 2001, the Madrid bombings and the overall War on Terror have raised attention for the Balkans where two countries (Bosnia and Kosovo) have a Muslim majority (Bougarel, 2008; Öktem, 2011). With the troublesome history of the region in mind, national- and international actors nowadays express their concerns about the ‘’possibility of the Balkans becoming a hotbed of Islamic terrorism, Salafism and Jihadi terrorism.’’ Considering the current situation in Bosnia, and the threat it poses to national- and international security, this article will discuss Salafism and processes of Islamic radicalization in Bosnia. Therefore, the first research question is formulated as follows: What are the characteristics of Islamic radicalization in Bosnia and Herzegovina? This research question is guided by the following sub questions: 1) What are the consequences of the spread of Salafism in Bosnia and Herzegovina? 2)What policies can we implement in order to prevent radicalisation of the youth? The second sub-question will be presented seperately, after conclusion in a form of recommendations.

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The Families of Disappeared Persons in the Jurisprudence of the Human Rights Chamber for Bosnia and Hercegovina and the Human Rights Advisory Panel in Kosovo

Author(s): Grażyna Baranowska / Language(s): English Issue: 7/2016

The article compares the jurisprudence of the Human Rights Chamber for Bosnia and Herzegovina and Human Rights Advisory Panel in Kosovo with regard to families of disappeared persons. Both bodies have recognized the suffering of those families, relying primarily on the European Human Rights Convention and the European Court of Human Rights jurisprudence. In the article, their approaches with regard to temporal jurisdiction, violating the prohibition of torture and inhuman treatment and the right to respect of private and family life have been compared and evaluated. The article scrutinizes how the European Courts jurisprudence has been applied by the two bodies, and whether they had any influence on the European Court of Human Rights.

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The EU Western Balkans Enlargement: The Role of the EU-OSCE Political Cooperation in the Field of the Rule of Law in Countries Preparing for the EU accession

Author(s): Lavinia Baciu / Language(s): English Issue: 7/2016

The European Union was formed to be a ‘community of law’ that promotes a substantive understanding and respect of the rule of law, which is an essential tool for the protection of all fundamental values that are listed in the treaties, including principles of democracy and human rights. The process of enlargement is often referred to as European integration. Enlargement and rule of law are two inseparable concepts well known for the countries that aspire to be part of the European Union family. The European Commission established the rule of law as a sine qua non condition for countries preparing for the EU accession. The EU has been engaged in supporting respect for the rule of law in other countries through preventive strategies, post-crisis rehabilitation and reconstruction, development and peace. All of this was possible by developing new mechanisms and building bridges of cooperation with other organizations such as Organization for Security and Cooperation in Europe (OSCE).The aim of this paper is to evaluate the engagement of EU and OSCE regarding the processes of preparation for accession to the Union of the Western Balkan countries and to identify how the EU could collaborate better with the OSCE in a way that advances its foreign policy goals (EU Common Foreign and Security Policy) and projects its strategic interests and values in the Western Balkan countries with a special focus on enforcing the rule of law mechanisms.

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The Prohibition of Retroactive Law and Other Safeguards when Conducting Institutional Reform: The Right to Non-Recurrence in Bosnia and Herzegovina

Author(s): Helga Molbæk-Steensig / Language(s): English Issue: 7/2016

This article will review the potential conflicts between the principle of the prohibition of retroactive law and the transitional justice mechanism of vetting and lustration, and debate the best and safest route to restore the integrity of and the faith in public offices. The prohibition of retroactive law is the guiding principle behind the human right of nullum crimen/poena sine lege, the protection against punishment for something that was not a crime at the time it was committed. Vetting and lustration mechanisms are not the foremost candidates to come into conflict with this right, since the right cannot be utilised unless there are proceedings before a criminal court. The principle of universal jurisdiction means that the gravest crimes and human rights abuses are exempt from the principle of nullum crimen sine lege, because they are illegal under international law even if there is no national law. This leaves us in a situation where the principle is applicable neither when judging the gravest crimes, nor when administrative justice is employed. Lustration resulting in barring from a particular profession can, however, be an intensive interference with an individual’s daily life and access to the job market. Because of this intensity, the UN has issued four guidelines for conducting fair and efficient institutional reform. This article will touch upon the philosophical, practical and legal background for the prohibition of retroactive law in relation to the benefits of lustration, and conduct a discussion between the two concerns. Lustration mechanisms must be conducted in a fair manner, not just because it is the right of the accused, but for security reasons, and because lustration is conducted in part to restore faith in public institutions. The case of Bosnia and Herzegovina (BiH)’s police, and judicial reform will be utilised as an example of vetting and lustration mechanisms, its benefits and pitfalls.

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Transitional Justice, State Accountability and the Crime of Aggression is a Successful Transitional Justice Process Possible without State Accountability?

Author(s): Jasmina Dreković / Language(s): English Issue: 7/2016

The ICTY is considered to be an institution fulfilling the “legacy of Nuremberg” and, while this is true in many aspects, yet there is a difference. What is very often omitted is the fact that the main crimes that the Nazis were tried for were crimes against peace, better known as crimes of aggression. After Nuremberg and Tokyo, and until 2010 when the First Review Conference of the States Parties to the Rome Statute of the International Criminal Court was held, the international community had not been able to agree on how to define aggression as a criminal act. As a consequence of that, the ICTY did not possess jurisdiction over this crime. Due to the inability of the international community to define the crime of aggression, state accountability was lost from theorizations of transitional justice. This paper analyzes whether it is possible to have a successful transitional justice process without state accountability and whether the TJ process in Bosnia and Serbia failed because it took place in the gap between Nuremberg and the First Review Conference, when the crime of aggression was introduced once again.

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Telling the Truth in a Divided Society: the RECOM Initiative in Bosnia and Herzegovina

Author(s): Martina Orlandi / Language(s): English Issue: 5/2014

The idea of a “holistic approach” to transitional justice suggests that different strategies for dealing with the past such as truth-telling, criminal accountability, memory work, reparations and institutional reform, interact and complement each other. Their timing, sequencing and interrelation remain contentious though. In the specific case of Bosnia and Herzegovina, the deep divisions embedded in the State structure and polity have been hindering dialogue across ethnic and political lines for the past decades. In addition, criminal accountability has been the predominant mechanism for dealing with the past. As a matter of fact, no official truth commission has ever been successfully established; while the panorama of non-official truth-telling initiatives has always been characterized by a certain degree of disarray. The challenge ahead is to find a strategy that matches Bosnia and Herzegovina’s specificity and priorities.

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