ИСКИ О ПРИЗНАНИИ В СУДЕБНОЙ ПРАКТИКЕ ПО ЖИЛИЩНЫМ ДЕЛАМ: КРИТИЧЕСКИЙ ВЗГЛЯД С ПОЗИЦИИ ЦИВИЛИСТИЧЕСКОЙ ДОКТРИНЫ

Author(s): Svetlana Igorevna Suslovа / Language(s): Russian Issue: 2/2016

The Housing Code of the Russian Federation stipulates ways of protection, which are different from those in the Civil Code of the Russian Federation, thereby requiring careful analysis of the characteristics of methods used to protect the housing rights. The paper assesses the claims for recognition in the judicial practice on housing cases. The recognition objects of housing claims are various legal phenomena designated by such polysemantic term as “right”: subjective rights, entitlement of subjective rights, secondary rights. The problem concerning definition of the recognition objects is solved. In particular, the correlation between claims for recognition of ownership of the place of residence and for recognition of the right to use the place of residence is considered. The conclusion is made about the necessity of refusal of claims for recognition of the right of use, because it is the only subjective element of the housing rights. Similar conclusions are formulated regarding the right to moving into the place of residence and the right to privatization, which are the elements of legal powers to use the place of residence and do not require separate recognition. The current practice of forcing citizens to appeal to the court for recognition of the right of a member of the owner’s family is criticized, since the judicial recognition of this right is not stipulated in the housing legislation. In the light of the civil legislation reform, the question is raised about the relationship between the claims for recognition of the housing rights and the claims for recognition of the rights of obligation. It is concluded that the features of the proprietary rights determine the features of the claims for recognition of the proprietary rights, but not the fact that this method of protection (after changes to the Russian Civil Code) would apply solely to corporeal rights.

ŚMIERĆ Z ZAGARDLENIA. SAMOBÓJSTWO, ZABÓJSTWO CZY NIESZCZĘŚLIWY WYPADEK?

Author(s): Andrzej Gawliński / Language(s): Polish Issue: 25/2014

The purpose of this article is to draw attention to the problem of human deaths qualifications (including the biological mechanisms), and to outline the issue of identifying the event as a suicide, a murder or an accident. There are three ways of strangling: hanging, strangulation and choking. Elements of each of them are described, as well as differences between them. All of their features in conjunction with the forensic techniques may be helpful in understanding the subject. The paper also includes examples of the practice of forensic reports. Determining the cause of death is often a nuisance to those who carry out the inspection, and even raises doubts among judicial physicians themselves. Due to this fact, the author mentions about: the concluence of causes of death, murder simulated by suicide, suicides masked with murder as well as a combined suicide and post-aggression suicide.

Women a(t) Battlefield

Author(s): Albana Gërxhi / Language(s): English Issue: 2/2017

The Absence of Transitional Justice in the Republic of Moldova

Author(s): Viktoria Apostol / Language(s): English Issue: 4/2013

Transitional Justice represents an insignificant subject for societies in transition. It is a large process which involves different actors and interests. The situation of transitional justice in the Republic of Moldova shows how the relationship between these two components (actors and interests) can influence (negative or positive) the entire process. This paper will address Moldova’s case of transitional justice as an ex-Soviet republic. The soviet heritage plays an important role within Moldova’s society. Its presence keeps certain memories alive in order to present only the convenient truth for some categories of people. Therefore it is important to problematise the absence of transitional justice in the Republic of Moldova and to identify the main causes of this aspect.

KEY ELEMENTS OF THE COMMUNICATION STRATEGY FOR STRUCTURAL INSTRUMENTS

Author(s): Ionel Cosmin GAGIU / Language(s): English Issue: 2/2018

European policies are carried out in accordance with the objectives and values assumed by the Member States. In most cases, implementation is accomplished through the participation of specialized personnel in the areas addressed. However, the population has the right to know how European staff are involved in solving the problems of European citizens and Member States. Given activities with high levels of abstraction, it is necessary to carry out public communication campaigns on the results and measures implemented. In this article we highlight the objectives and goals of the national communication strategy for structural instruments.

THE IMPACT OF THE EUROPEAN COURT OF HUMAN RIGHTS ON JUSTICE SECTOR REFORM IN THE REPUBLIC OF MOLDOVA

Author(s): Judithanne Scourfield MCLauchlan / Language(s): English Issue: 2/2018

For this study, I reviewed the judgments of the European Court of Human Rights against the Republic of Moldova and the corresponding reports of the Committee of Ministers from 1997 through 2014. In addition, I interviewed more than 25 lawyers, judges, and human rights advocates. After analyzing the effectiveness of the Court in terms of compliance with the judgments in specific cases (individual measures), I will assess the broader impact of these decisions (general measures) on legal reforms and public policy in the Republic of Moldova. I will evaluate the effectiveness of the decisions of the ECtHR in the context of the implementation of Moldova’s Justice Sector Reform Strategy (2011-2015), the Council of Europe’s Action Plan to Support Democratic Reforms in the Republic of Moldova (2013-2016), and Moldova’s National Human Rights Action Plan (2011-2014). My findings will offer insights into the constraints faced by the ECtHR in implementing its decisions and the impact of the ECtHR on national legal systems.

AMNISTIE ȘI PEDEAPSĂ ÎN CONTEXTUL JUSTIȚIEI TRANZITORII ȘI A RECONCILIERII UNEI SOCIETĂȚI POST-CONFLICT

Author(s): Vitalie Gamurari / Language(s): Romanian Issue: 1/2020

Amnesty and punishment are two important institutions of transitional justice. Discussions on the application of one or the other are quite common, each part having its arguments. One thing we can state for sure – prioritizing only an institution, it will certainly lead to transitional justice promoted by touching objects – a company post-conflict reconciliation is impossible, this process is a complex one, in which an important role belongs non-legal rules. However, transitional justice trying to find that common ground, that would satisfy society in integrum.

TUŽBA BOSNE I HERCEGOVINE PROTIV SRBIJE I CRNE GORE ZA GENOCID

Author(s): Željko Petrović / Language(s): Bosnian Issue: 2/2019

Genocide in Bosnia and Herzegovina mainly refers to the Srebrenica genocide committed by Serbian Army forces in July 1995, with the aim of destroying all Bosniaks in the area, but also genocide in a broader context denoting crimes against humanity and war crimes during the Bosnia and Herzegovina from 1992 to 1995. The term describes the campaign of ethnic cleansing and killing in the war in Bosnia and Herzegovina. Bosnia and Herzegovina, holding that the then FR Yugoslavia was responsible for the violations of international humanitarian law or genocide committed in Bosnia and Herzegovina, filed a lawsuit before the International Court of Justice to determine its liability. The Tribunal has ruled that the criteria for genocide with the specific goals (dolus specialis) of Bosniak annihilation have been met only in Srebrenica and eastern Bosnia. The aim of the paper is to determine the consequences of the judgment itself, that is, what has been achieved with it and what its results are, given that the dispute was conducted for 14 years

COURT PROCEEDINGS AND VERIDICT TO RADOVAN KARADŽIĆ - CHRONOLOGY AND CONFIRMATION OF GENOCIDE IN BOSNIA AND HERZEGOVINA

Author(s): Dževad Mahmutović / Language(s): English Issue: 8/2019

This paper brings the chronology of the trial, during which Radovan Karadžić was convicted, as the highest-ranking person in the territory of the former Yugoslavia. He was convicted of genocide in the Srebrenica area in 1995 and for persecution, extermination, murder, deportation, inhumane acts (forcible transfer), terrorism, unlawful attacks on civilians and taking of hostages by participating in four joint criminal enterprises (JCEs). The chronology was made based on official documents of the International Criminal Tribunal for the former Yugoslavia (ICTY) and completed with the Appeal Judgment Summary by the Appeals Chamber, in the proceedings against Radovan Karadžić. The sentence of life imprisonment imposed on him is a message to everyone that war crimes are not tolerated, and the extensive evidence in this case and the facts contained therein are particularly important for establishing the truth about the events in BiH, and deserve this and many other, different analysis.

How narratives and rhetoric impacts the individual reconciliation process of victim/survivors of conflict-related sexual violence in Bosnia and Herzegovina

Author(s): Ditte Luja Aaskov / Language(s): English Issue: 10/2019

Reconciliation is a process on many levels and for the process to succeed on a broader political level, it is crucial to not overlook or ignore the individual element of reconciliation. The thesis of this article is about the heavy focus on the suffered trauma of victim/survivors in Bosnia and Herzegovina (BiH), disempowering rhetoric and the practised narrative about female victim/survivors by e.g. the International Criminal Tribunal for the former Yugoslavia (ICTY). All of which has contributed to refrain these individuals from reconciling with the past and effectively created an obstacle for the reconciliation process in BiH. This article seeks to illustrate this issue by presenting a theory about the effect of focusing on the trauma-narrative on victim/survivors of conflict-related sexual violence. This is also in conjunction with the rhetoric used about women in general, specifically in the resolutions from the United Nations Security Council as well as the narratives of victim/survivors of conflict-related sexual violence presented by for example the ICTY. Drawing on a new approach to victim/survivors of conflict-related sexual violence in BiH, this article underlines the importance of a change in the narrative and rhetoric, to make progress in the reconciliation process possible.

To Genuine Reconciliation on Comfort Women

Author(s): Li Zhewei / Language(s): English Issue: 10/2019

The comfort women, which was a brutal crime in the Second World War, has been a historical dilemma in the international legal practice in the East Asia. It is an impasse made up of gender, decolonisation and nationalism elements. This article tries to propose a possible way to reach a genuine reconciliation on the comfort women issue from a perspective of transitional justice. Firstly, an introduction about the comfort women issue will be introduced, which will establish the whole theoretical analysis framework. The Second Part will try to analyze the obstacles and difficulties to ultimately settle down the comfort women dilemma. In the Third Part, this essay will conduct cases study by retrospecting the currently existing practice that has tried to address the comfort women problem, namely inter-governmental cases and individual-claim cases. The Conclusion will coincide the rationale of the First Part and put forward the possible solution with a threefold structure.

The transitional justice in France after the Second World War

Author(s): Lucie Gamba / Language(s): English Issue: 10/2019

According to the website of the International Center for Transitional Justice, Transitional justice “refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response”. How transitional justice did work in France after the Second World War? The country had to deal with the punishment of the responsible, and its reconstruction. This war destroyed the country, socially, economically, and politically, and the needs of reforms was urging. Before all the international conventions, the official recognising of human rights as we know it today and the advent of transitional justice, France and more generally the world had to deal with it and find a balance between justice and rebuilding. The social context was complicated because of the hate and the thirst of revenge of the population and it was another factor for the public authority to deal with.

COMBATING TERRORISM AND ENSURING THE REGULATORY FRAMEWORK WHICH CONSTITUTES THE „NUCLEUS” OF HUMAN RIGHTS IN THE CONTEXT OF CHALLENGES WHICH THE SECURITY FACES AT THE INTERNATIONAL AND REGIONAL LEVEL

Author(s): Vitalie Gamurari,Naif Jassim Alabduljabbar / Language(s): English Issue: 1/2020

The impressive increase of the number of terrorist acts in different parts of the world and „internationalization” of this issue lead to diversification of the forms of combating this phenomenon, especially in the international cooperation form, as well as to the adoption of some regulatory documents which often contravene to the regulatory framework which ensures the fundamental human rights and freedoms. The adopted measures are argued by the necessity to ensure national, regional and international security, but sometimes they are directly contradictory with particular norms of imperative character from the view point of the international law. In these conditions, as mentioned in numerous reports of the institutions concerned about the human rights, it is emphasized the attempts to justify the application of different forms of torture toward the persons suspected to be involved in the acts of terrorism are emphasized.

Collective Memories, Institutions and Law

Author(s): Adam Czarnota,Justyna Jezierska,Michał Stambulski / Language(s): English Issue: 3/2019

This paper aims at explaining the concepts of collective memory, institutions, politics, law, as well as relations between them. By means of a short explanation of a network of mutual relations between these notions, we want to show how law and collective memories interact and how the relation between them is formed. At the same time, we see three modes of relations between collective memories and law: 1) past before the law, 2) memory laws and 3) law as collective memory. The first view consists in evaluating the past under a court trial. The second one in creating legal rules which promote or demand commemoration of a specific vision of the past. The third approach perceives law itself as institutionalized collective memory.

Instrumentalization of Law in the Context of Memory Policies in Central and Eastern Europe after 1989

Author(s): Filip Cyuńczyk / Language(s): English Issue: 3/2019

The main goal of the article is to conduct case studies of CEE memory policies introduced after the fall of communism and to present them as an interesting field for examining the instrumentalization of law. The primary research question is: Do several case studies of several memory policies implemented in post-communist states help to examine the theoretical concept of the instrumentalization of law? In this paper, I intend to show the hidden potential of such studies. I present some of the specific elements of new constitutionalization attempts in CEE, which included narratives of memory in several constitutions in the region. I also show their relation to the concept of instrumentalization of law. Finally, I describe some political acts of instrumentalization of law in the field of collective memory.

Truth Revelation Procedures as a Rights-based Alternative to the Politics of (Non-)Memory

Author(s): Emilia Kowalewska / Language(s): English Issue: 3/2019

This article offers a socio-legal reflection on the relation between law, state obligation, and attempts to institutionalize collective memory. As the question of memory institutionalization becomes most pertinent in the context of regime change that imposes on an incumbent government certain expectations for addressing the past, the article considers this research problem from the perspective of transitional justice theory. The transitional justice paradigm allows for an interdisciplinary consideration of the topic. Special attention is paid to legal norms and mechanisms directed towards establishing authoritative knowledge about the past. The emerging principle of the right to truth is presented as an integrating and rights-based perspective from which to approach societal demands for acknowledging injustices of the past. Measured against the fundamental rights that lie at the heart of transitional justice theory, three types of truth revelation procedures are presented. The article shows that the relationship between law and memory – which is often reduced to one of political instrumentalization – should, in accordance with the values of a liberal democracy, be reframed from the perspective of individual and collective rights. The article seeks to contribute to the field of memory studies in the social sciences by exposing functions of legal norms and mechanisms that are often overlooked when discussed from the perspective of the politics of memory.

Articles 55a and 55b of the IPN Act and the Dialogue about the Holocaust in Poland

Author(s): Katarzyna Liszka / Language(s): English Issue: 3/2019

Relations between the Holocaust, memory, and law are constantly reconceptualized. In the second decade of the 21st century there is no clear consensus on the way the Holocaust, memory, and law are or should be interconnected, especially in Central and Eastern Europe. A striking example of the new dynamics of those tensions is an amendment to the Act on the Institute of National Remembrance, which in January 2018 inserted Articles 55a and 55b. The paper states that these controversial provisions (later withdrawn) should be understood as specific memory laws in response to the transnational memory of the Holocaust and the non-consensual dialogue on the Jedwabne pogrom in Polish society. The paper shows the law as a result of a certain dialogue, a voice in the dialogue, and an attempt to limit this dialogue – as well as the effects of such limitation. The paper adopts Leszek Koczanowicz’s conception of dialogue, Natan Sznaider’s description of the transnational Holocaust memory, as well as the idea of the future-oriented ethics of never again, and Eviatar Zerubavel’s concept of a conspiracy of silence in order to frame the context and meaning of the emergence, short life, disappearance, and traces of the law. Although these articles “refract” criminalization of the Holocaust and genocide negationism, understood in the context of Polish historical politics, they are themselves close to a specific form of denial, i.e. denial of the Jedwabne massacre. A recollection of the Polish memory law casts a shadow on the future, as a threat exists that the law might appear again.

Nostalgic Constitutional Identity

Author(s): Michał Stambulski / Language(s): English Issue: 3/2019

The paper deals with the link between the notions of constitutional identity and nostalgic collective memory. Starting from the notion of nostalgia of postmodern society as used in social theory, it shows that this cultural condition is reflected in in constitutions. The point of reference for contemporary political projects is no longer the future but the past. Longing for a lost homeland becomes a dominant social emotion. The author shows that this vision of the past is present in constitutions, especially in post-communist countries. It influences constitutional identity and, due to different temporal structures, is in conflict with the constitutional identity of the EU. The article ends with an analysis of the consequences of such a politics of nostalgia and the possible defence mechanisms against it.

How Bosnia Changed Paddy

Author(s): Jonathan May / Language(s): English Issue: 04/2013

As parliamentarian during the Bosnian war, witness at the International Criminal Tribunal for the former Yugoslavia, and finally as politician with considerable executive power in the role of High Representative, the length and multifaceted nature of Paddy Ashdown’s interaction with Bosnia and Herzegovina is atypical. This rarity provides a unique opportunity to examine the factors that influence a politician’s views and understanding of a foreign country and examine how and why they oscillate and develop over time. By first identifying the preconceptions and misjudgements which Ashdown entered the realm of the Bosnian war with in 1992, this paper examines the aforementioned stages in Ashdown’s interactions with the country and subsequently provides a political evolution of his views from 1991 to 2006.

Genocidal Intent and Transitional Justice in Bosnia: Jelisic, Foot Soldiers of Genocide, and the ICTY

Author(s): Gregory Kent / Language(s): English Issue: 03/2013

Convictions for genocide in relation to the war in Bosnia (1992–1995) provide the strongest sense of justice-having-been-done to victims and their families. But at the ICTY, the reputation of which has been marred by a series of controversies, the few perpetrators found guilty of genocide were involved in the Srebrenica massacres of July 1995. Other courts have convicted individuals from a range of different locations (and periods) in the war, giving arguably a more complete sense of justice to victims, and a more accurate contribution to the historical record. It is widely perceived that the Genocide Convention has been narrowly interpreted. As most genocides do not result in total destruction, what counts as “part” of a group, especially when combined with other acts, is a key issue explored here. Two cases (outside Srebrenica) in which genocide indictees were not held responsible for genocide are examined, with the Jelisic case, involving a foot-soldier of genocide, the main focus for critical analysis. Reflection on the implications for Bosnian society are given in conclusion.