RIGHT OF ACCESS TO THE COURT OF REVIEW IN THE PROCEDURE OF RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
The procedure of recognition of a foreign arbitral award is initiated by an application and finalised by a decision by which the foreign arbitral award is recognised, or the recognition is refused. After the decision of the court of first instance, the dissatisfied party may lodge an appeal, an ordinary legal remedy within the subject-matter jurisdiction of the Court of Appeal of Montenegro. In practice, problems may arise after the appellate court’s decision on the appeal of the dissatisfied party, given different approaches, found in both theory and practice, to the admissibility of extraordinary legal remedies. No dilemmas of this type arise in theory when it comes to the admissibility of special legal remedies, such as the constitutional complaint, which is reflected in a uniform practice of the Constitutional Court of Montenegro. This scientific paper provides an overview of legal remedies, with an emphasis on the review, which are available to the parties or which, in the authors’ opinion, should be considered admissible after the court’s decision to recognise or refuse to recognise a foreign arbitral award.
Keywords: foreign arbitral award, recognition procedure, court of review, constitutional court.
The right to a fair trial in criminal proceedings is one of the most basic constitutional rights. The way to achieve it is to ensure a “favourable neighbourhood” for this right i.e., constitutional law that recognises human rights, the tradition of judicial review, and a judicial system capable of scrutinising decisions of the Government. The last condition is specifically related to the capacity of a judicial system to review the prosecution’s discretionary decisions and to stay or dismiss the proceedings when necessary. In the United Kingdom, the doctrine is known as the “judicial stay of criminal proceedings and is justified by the concept of “abuse of process”. Israel “imported” the doctrine and has developed it in its own way. The prosecution’s power is among the most far-reaching powers of administrative authorities. The need to restrain it asked for a mechanism, set in legislation or in case law, which would balance the goal of efficient enforcement of law and order with the preservation of fundamental values, including fairness, equality, and due process, to prevent distortion of justice. It became necessary to allow a defendant to raise arguments justifying the request to stay the trial, such as: delay in the criminal justice process; breach of promise not to prosecute; loss or destruction of evidence; investigative impropriety; prosecution’s manipulative practices or misuse of process or power; selective and discriminatory enforcement; entrapment; prejudicial pre-trial publicity, etc. How do legal systems with limited and partial constitutional “tools” handle this essential principle of protecting fairness?
Keywords: criminal proceedings, constitutional law, judicial review, fairness, dismissal.
It is essential that the judicial function be public, discreet and professional. Its legitimacy as a public authority is obtained through the recognition of judgments, in which there is an identification between decisions and society. But what type of communication must be made by the judiciary, and especially by judges, to provide information about their activities and, thus, provie that their interaction with citizens strengthens the society by generating a greater connection between the sovereign and the public power?
Keywords: expression, rights, information, judges, self-censorship.
ALBANIAN JUSTICE REFORM IN THE FRAMEWORK OF THE EU ACCESSION PROCESS
The accession to the European Union is a guarantee for the future of Albania. It will provide numerous advantages once Albania becomes a full member. The rule of law holds an important place in the sustainability and equity of democratic governance, especially considering the European Union’s accession process to the Republic of Albania. The vetting process in Albania is considered a mechanism that will ensure the rule of law in the judicial decision-making process and be an important condition that the country should overtake in ensuring an uncorrupted judiciary system. The justice reform and especially the vetting process is considered to as the main component of the accession talks with the European Union. The reform carries major objectives and benefits whose outcomes hope to quell several issues the candidate country is facing, aspiring to reach the equitable level of changes and proper harmonization on European Union’s standards. The evaluation process is based on a three-criteria where temporary vetting organs conduct the investigation for each magistrate. Following this process, the dismissed judges have filed complaints to the European Court of Human Rights based on the right to due process.
Keywords: vetting, International Monitoring Operation, First Instance Commission, EU, SPAK (Special Anti-Corruption and Organized Crime Structures), European Court of Human Rights, harmonization, rule of law.
SPECIFICITIES OF RECRUITMENT AND SELECTION IN THE DEFENCE SECTOR – THE CASE OF MONTENEGRO
The paper analyses key specificities of recruitment and selection in the defence sector, providing an example of Montenegro. Personnel in ministries of defence and armed forces are public servants and constitute a part of national administrations in a larger sense, which need genuine professionals. From the legal point of view, there are usually several categories of staff within the defence sector: civil servants, military officials and civilian personnel in the armed forces, which all have some specificities due to the nature of the work they carry out in the public service. The paper first analyses key international standards on recruitment and selection in the public service and those which are specific for the defence sector. The central part of the paper examines key contentious issues in the legal framework regarding recruitment and selection in the defence sector of Montenegro, especially exemptions from the open competition rule, ministerial discretion in appointing the candidate from an open list, and the lack of a possibility to challenge security clearance decisions of perspective candidates (for military personnel and civilian personnel in the army). The authors conclude that although it is relatively easy to pinpoint necessary legal changes to improve the current system, it is not very likely that the system will be changed without a strong and unwavering political support, which will be able to force the holders of excessive powers to release it and ensure the observance of the merit principle.
Keywords: legal framework, recruitment and selection, defence sector, Montenegro.
REVERBERATIONS OF THE PLACE OF CONTRACTUAL PERFORMANCE ON DETERMINING THE COURTS’ JURISDICTION IN THE FIELD OF AIR TRANSPORTATION
The paper focuses on the reverberations of the concept of ‘place of performance of the contractual obligations’ on the establishing of court’s jurisdiction and the enforcement of judgments in civil and commercial matters, under the provisions of second indent of Article 7, para. (1)(b) of Regulation (EU) No 1215/2012, in the perimeter of air transportation. The first part of the article deals with the preliminary points that should be stated concerning the judicial action which falls within the concept of ‘matters relating to main contractual provisions’ within the meaning of Article 7(1)(a) of Regulation No 1215/2012, in the hypotheses which cover the claims brought by air passengers for compensation for the long delay of a connecting flight, made under Regulation No 261/2004, against an operating air carrier with which the passenger concerned does not have a contractual nexus. As emphasised in the second part of the paper, particularly in the field of contracts concluded for the provision of services (air transport), as reflected in CJEU recent jurisprudence (Case C-20/21), in the case of flight consisting of a confirmed single booking and performed in several flight segments by two separate air carriers, under the provisions of art. 7 of Regulation (EC) No 261/2004, the common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, the claim for compensation brought against the air carrier operating that first flight segment falls under the territorial competence of the court from the place of arrival of that first flight. Thirdly, the reverberations of the place of contractual performance on determining the courts’ jurisdiction become ostensible since the place of arrival for that first flight segment may not be classified as a ‘place of contractual performance’ within the meaning of the legal provisions.
Keywords: contractual performance, jurisdiction, territorial competence, air transportation, passengers, right of compensation.
OPEN BALKAN INITIATIVE – WHAT CAN WE LEARN FROM THE EU AREA OF FREEDOM, SECURITY AND JUSTICE?
Initiative for enhanced cooperation among Western Balkan states was proposed by leaders of Albania, North Macedonia and Serbia with the aim to establish free movement of goods, services, people and capital in line with the EU single market. Over the three-year period, between 2019-2021, a series of high-level meetings were organised to achieve an agreement on the legal framework for the Open Balkan Initiative. Four agreements were signed in December 2021 to enable the free movement of people/workers and goods, followed by additional agreements in June 2022. Successful implementation of the Open Balkan Initiative could be accompanied by several challenges that the EU faced when the Schengen Agreements were signed and entered into force. One of the biggest challenges for the open EU was the free movement of criminals and, therefore, the challenge of securing cross-border cooperation in criminal matters and increased security risks. In the article, the author will analyse lessons learnt from the EU and the reason for the establishment of the EU area of freedom, security and justice as a response to the risks raised with the free movement across the EU. The author will address the topics that need to be covered in future agreements within the Open Balkan Initiative to prevent the increase in cross-border criminal activities.
Keywords: open Balkan initiative, EU area of freedom, security and justice, free movement, security risks.
The study analyses some contemporary issues and challenges related to the interaction between EU law and domestic legal systems of the EU member states in the context of Brexit. The focus of the work is on the legal system of Great Britain, exploring the dualist approach of UK law to the law of the European Union. The Brexit process has raised issues of legal pluralism in the implementation of the EU integration law in the UK’s legal system, which will also be addressed in the paper.
Keywords: European Union, legal order, interaction, dualism, pluralism, Brexit.
GENDER DISCRIMINATION AND DOMESTIC VIOLENCE IN THE REPUBLIC OF CROATIA AND BOSNIA AND HERZEGOVINA
Gender discrimination and domestic violence against women are critical points of the human rights system in the Republic of Croatia and Bosnia and Herzegovina, and due to the crisis caused by the Covid 19 pandemic, the situation has worsened. The legal framework and the envisaged institutional mechanisms in both countries are at a satisfactory level, so the question arises as to what are the key causes of the discrepancy between the normative and the actual state of affairs as well as the aforementioned deterioration. This work starts from the assumption that the root of the problem rests in: traditional heritage, economic dependence of women on men, and inadequate institutional protection of victims of gender discrimination and domestic violence.
Keywords: Republic of Croatia, Bosnia and Herzegovina, gender discrimination, domestic violence, Covid 19.
On 7 December 2020, the Council of the European Union adopted two legal instruments, the Council Decision (CFSP) 2020/1999 concerning restrictive measures against serious human rights violations and abuses and the Council Regulation (EU) 2020/1998 concerning restrictive measures against serious human rights violations and abuses, which together make up the European Union Global Human Rights Sanctions Regime as a relatively new tool in its “human rights and foreign policy toolbox’’ that focusses on serious human rights violations. This article focuses on the Action Plan on Human Rights and Democracy 2020 – 2024 as part of the Joint Communication adopted in March 2020 by the High Representative of the Union for Foreign Affairs and Security Policy and the Commission since the European Union Global Human Rights Sanctions Regime is a key deliverable proposed in the Action Plan. More specifically, the article examines whether the European Union Global Human Rights Sanctions Regime has provided greater flexibility to target those responsible for serious human rights violations and abuses worldwide, as well as whether the said regime could be seen as an European Union response to a transnational security threat.
Keywords: European Union, human rights, sanctions regime, foreign policy, transnational security threat.
THE FRAMEWORK ON DURABLE SOLUTIONS FOR INTERNALLY DISPLACED PERSONS IN THE SCHOLARLY LITERATURE: A PRELIMINARY ANALYSIS
The number of persons forcibly displaced from their homes, the long duration of their plight, and the manifold negative consequences of internal displacement have intensified the United Nations efforts to come to grips with, what is now called, “the global internal displacement crisis”. At the heart of the new United Nations strategies is a quest for solutions to internal displacement, with the Framework on Durable Solutions for Internally Displaced Persons serving as their blueprint. Endorsed in 2009 by the major international stakeholders in the field, the Framework provided the conceptual foundations for the policies and programmes for internally displaced persons which would go beyond the provision of humanitarian assistance. To understand whether the Framework has had an important role in the development of the scholarship on forced displacement as it has had in practice, the study examines the references to the Framework in scholarly discussions evolving since its endorsement. To this aim, the authors undertake qualitative and quantitative analysis of a sample of scholarly articles in the field of social sciences. The study’s findings confirm that the Framework on Durable Solutions for Internally Displaced Persons represents a standard reference for the concept of durable solutions in academic research on internal displacement. However, the study also shows that a more critical engagement with the text of the Framework is missing.
Keywords: internal displacement, Framework on Durable Solutions for Internally Displaced Persons, United Nations, internal displacement crisis, forced migrations scholarship.
After 1989/1990, with the downfall of the communist regime, the opportunity for the historical memory of the trauma of the 20th century had changed in Hungary as well. In 2004, with other Central and East European countries, Hungary became a member state of the European Union; there was another sweeping change in the Hungarian politics of the memory. Hungary’s remembrance had to be fitted in the European „Holocaust-focused” memory-politics, with its two-folded, „Holocaust- and communism-focused” past. This situation resulted a rival victim-narrative, which effected a huge change in the structure of the Hungarian memory laws. After the downfall of the communist regime, the state approach was rather self-exculpatory, due to Hungary regarding itself just as a victim of the dictatorships of the 20th century. The Hungarian politics of memory does not want to confront the self-inculpatory narrative, despite the fact that no dictatorships could function without Hungarian „perpetrators”. The paper seeks for the reason behind the change between the self-exculpatory and the self-inculpatory approaches of the Hungarian legal governance in the last three decades.
The paper analyses the development and novelties in the regulation of condominium property in North Macedonian property law and comparatively. It dissects the concept of condominium property adopted in contemporary property law and examines the need for its redefining so that it could meet the requirements of modern living. The paper focuses on the practical issues in implementing the novelties in regulating condominium property in North Macedonian law that have been, to some extent, adopted from other legal systems, primarily from the laws of neighbouring countries. As the paper will elaborate, research has shown inconsistencies in regulating condominium property between the basic property law – the Law on Ownership and Other Real Rights and special laws such as the Housing Law. The research has also shown inconsistencies or lack of precise and comprehensive provisions in the Housing law itself. Noting the shortcomings in the regulation relating to condominium property the paper directs attention to necessary amendments of the regulation that can be instrumental in overcoming practical issues in the management of condominiums, protection of rights and interests of homeowners and third parties, and the extent of administrative and judicial intervention in these relations.
Keywords: property, condominium, ownership, housing.
RANGE AND SCOPE OF THE DEFINITION OF STALKING FROM THE ISTANBUL CONVENTION IN NATIONAL LEGISLATION IN BiH
With the adoption of the new Criminal Code in 2017, the Republic of Srpska introduced a new criminal offence, with the aim of harmonizing criminal protection from gender-based violence with the standards contained in the Istanbul Convention. One of them is the crime of stalking. In this paper, we analyse whether formal legal protection against gender-based violence has improved in the Republic of Srpska with the introduction of this criminal offence and compare this crime with the same or similar crimes in the criminal laws of states in the Balkan region and other political-territorial units in BiH. We pay particular attention to the crimes of endangering security, and sexual harassment. We are especially interested in the Federation of BiH, given that this entity does not prescribe an adequate criminal offence in its criminal law in the light of the requirements of the Istanbul Convention (ratified by BiH), but also taking into account the fact that the Convention does not detail the essential features of the nature of the crime of stalking. Based on best comparative practices, and taking into account the jurisdiction of international forums, we will give some proposals de lege ferenda. The paper also includes a specific insight into the criminal offences of stalking and endangering security, which exist in the relevant criminal laws in Bosnia and Herzegovina, and which will serve to prove our hypothesis more reliably. The paper will have a strong gender-based approach, but, to the extent necessary, systemic shortcomings in the prosecution of the crime of endangering security will also be shown in auxiliary categories, e.g. vis-a-vis journalists, as the safety of female journalists is often under attack.
Keywords: Bosnia and Herzegovina, stalking, legislation, gender-based violence, Istanbul Convention.
HUMAN TRAFFICKING IN BOSNIA AND HERZEGOVINA – CRIMINAL LAW, JUDICIAL PRACTICE AND IMPLICATIONS FOR HUMAN SECURITY
Human trafficking represents one of the most serious forms of human rights violations in Bosnia and Herzegovina. The Criminal Code of Bosnia and Herzegovina criminalises human trafficking as an offence in the category of crimes against humanity and values protected by international law. The drafters of the international conventions, which served as a model to the domestic legislators, did not approach human trafficking solely as an organised crime or transnational crime, for the reason of which the criminal codes in Bosnia and Herzegovina also criminalise domestic human trafficking. The starting point of this paper is the interrelatedness between plea bargaining in procedural law and lenient penal policies, which represents an obvious problem with profound security implications for Bosnia and Herzegovina. In this context, we begin with the analysis of the notion of human security, the essential element of which is the protection of human rights and, thus, the rights of victims/aggrieved parties in criminal proceedings. Human trafficking is a result of structural inequalities at the global level and within a country’s boundaries.
Keywords: human trafficking, plea bargaining, victims/aggrieved parties, human security.
Sustainability has received more and more attention over the past years and its environmental, social and governance (hereinafter ESG) factors even more so. The theme has long passed the stage of being just about the environment or the climate. The term ESG has a very wide scope. It encompasses an extensive range of considerations, including tax. Major international organizations have recognized the role that taxation could play in achieving the United Nations Sustainable Development Goals. Contributing their fair share to public revenue has become a reputational risk, especially to multinational businesses. Through the lens of ESG factors, aggressive tax optimization and harmful tax strategies are against the sustainable future. In order to give a more realistic view of how the interaction of ESG and taxation can promote economic sustainability, this paper explores the following issues. The fundamentals of ESG in finance underline the emerging role of transparency in taxation by analysing the adopted measures in the reporting frameworks around the globe. The article examines the Balkan region by highlighting and comparing the completed ESG specialised tax measures in Serbia, Croatia and Hungary.
Keywords: sustainability, ESG, taxation, tax compliance, tax evasion.
THE IMPACT OF EUROPEAN INTEGRATION ON THE DEVELOPMENT OF SERBIAN MONETARY LEGISLATION
The subject of the paper is the impact of European monetary integration on the formation and development of domestic monetary law, and as its subject of legal regulation. European monetary law is a hybrid branch of law understood as a set of legal norms defining the monetary unit for the denomination of public debt. As such, it represents a good example of flexibility, dynamism, complexity, and the vital importance of the contemporary monetary legislation, the significance and relevance of which, in both academic and practical terms, are reflected in the preservation of monetary stability, as an essential public good, and monetary rights of the monetary citizen, i.e. citizens who live under domestic monetary jurisdiction, to have a stable and sound domestic currency. The impact of European monetary integration is particularly noticeable in the harmonisation of regulations within the competence of the central bank with supranational lex monetae. The same is true for the central bank’s competence to adopt monetary legal rules from acts of secondary monetary legislation defined within the new models of macroeconomic governance in EMU during the debt crisis, which enables the harmonisation of national banking policies at the EU level. Also, the new competencies of the supreme monetary national institution with regards to the aim of maintaining financial stability, its function as the bank of last resort for preventing the financing of terrorism, and competencies related to the fight against financial crimes, confirm the thesis about the evolution of central bank competencies towards common European values and axiology of European monetary legislation. By applying the dogmatic, comparative, and axiological methods, the paper seeks to identify existing differences between domestic and European monetary legal solutions and the achieved de lege results. The paper also offers certain de lege ferenda guidelines for shaping future monetary nomotechnique aimed at providing the optimal and sustainable monetary legal answers to the issues arising in the realm of the law of value.
Keywords: monetary law, EU, lex monetae, monetary stability, central bank.
INSIGHTS INTO REGIONAL DEVELOPMENT FINANCE INSTITUTIONS – REGULATORY AND INSTITUTIONAL FRAMEWORK
Development Finance Institutions are legally independent, state-supported institutions that foster sustainable development through private sector investments in developing and underdeveloped countries. Their role is not only financial and investment, but this type of institution is also focused on achieving sustainable development goals such as job creation, poverty reduction, financing of micro, small and medium enterprises and entrepreneurs, as well as on supporting projects of environmental protection, energy efficiency, renewable energy sources. Giving a brief sketch of the conceptual ground and practical significance of DFIs, the paper provides insights into the regulatory and institutional framework of countries of the region in this field, by using normative and comparative methods. Accordingly, recommendations in terms of tackling the global challenges i.e. sustainable economic growth, social inequalities, and environmental protection ought to be identified based on the analysis of the Slovenian, Croatian and Serbian legislation in the developing finance sector and on the ground of critical consideration of national normative and institutional solutions.
Keywords: development finance institutions, sustainable development, regional countries, institutional framework.