Road Traffic Nuisance in Slovenia: State Liability for Non-pecuniary Damage

2018 ◽  
Vol 43 (2) ◽  
pp. 174-196
Author(s):  
Damjan Možina
Keyword(s):  
Road Traffic ◽  
Case Law ◽  
The State ◽  
Protection Measures ◽  
Limit Values ◽  
The Public ◽  
Healthy Environment ◽  
State Liability ◽  
Civil Courts ◽  
Fair Balance

This paper presents and critically analyses the case law of the Slovenian courts with regard to mass individual claims against the state due to nuisance from public roads and railroads. The courts have largely upheld these claims. In awarding monetary compensation for non-pecuniary loss, they have considered the fundamental right to a healthy environment to be a personality right. Moreover, they have held that the state is under a guarantee-like obligation towards the population in that noise arising from public roads and railways will not exceed the limit levels set by the Regulation on Limit Values of Environmental Noise Indicators. As a consequence, new mass claims are being filed, exposing the state to considerable liability. The author considers the approach taken by the civil courts in Slovenia to be misguided on several levels. A fair balance between should be sought public and individual interests. Upholding claims in full by individuals who did nothing to mitigate noise is inappropriate. The problem would be better dealt with by way of regulating noise protection; compensation by way of analogy to (partial) expropriation in the public interest should only be sought if noise protection measures are ineffective or disproportionate.

A Practical Approach to Civil Procedure

2021 ◽  
Author(s):  
Stuart Sime
Keyword(s):  
Road Traffic ◽  
Case Law ◽  
Civil Procedure ◽  
Civil Litigation ◽  
Practical Approach ◽  
Small Claim ◽  
Key Points ◽  
Rule Changes ◽  
Summary Judgment ◽  
Civil Courts

A Practical Approach to Civil Procedure guides the reader through the procedural requirements employed in the civil courts. The volume provides an overview of the key statutory provisions, rules, practice directions, and case law which govern the various stages of a civil litigation claim. Providing practical guidance, the text charts the progress of a typical civil litigation claim, from funding litigation, the importance of alternative dispute resolution processes, issuing and serving proceedings, case management, and through to trial, enforcement, and appeal. Relevant sample documentation is featured throughout and introduces the forms and documents which will be encountered in practice, while key points summaries featured at the end of chapters highlight the essential points covered. This edition has been revised to incorporate rule changes up to the Civil Procedure (Amendment No 2) Rules 2021 and the 129th Update. Changes incorporated into the new edition include: Pre-action protocol for small claim road traffic accident cases and the new PD 27B; procedural aspects of the tariff system for whiplash injuries under the Civil Liability Act 2018; recent case law on service of claim forms and particulars of claim; revised rules on costs management; changes to the rules on statements of truth; revisions to the chapter on summary judgment, including the cheque rule and the approach taken in summary judgment applications for discretionary remedies; replacement PD 51U on disclosure of documents in the Business and Property Courts; case law developments on legal professional privilege and without prejudice privilege; developments on search orders, and case law on imaging orders; further guidance on remote hearings; and debt respite procedures.

Zwierzynski v. Poland

2001 ◽  
Vol 12 (5-6) ◽  
pp. 367-370
Keyword(s):  
Moral Obligation ◽  
The State ◽  
Fundamental Rights ◽  
Public Order ◽  
General Interest ◽  
Public Authorities ◽  
The Public ◽  
The Guardian ◽  
Fair Balance

Any interference with the protection of property had to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The requisite balance would not be struck where the person concerned bore an individual and excessive burden. Where an issue in the general interest was at stake it was incumbent on the public authorities to act in an appropriate manner and with utmost consistency. In addition, the State, as the guardian of public order, had a moral obligation to lead by example and it had a duty to ensure that its organs charged with the protection of public order enforced observance of that obligation.

Reparation and Criminal Justice: Can they be Integrated?

1996 ◽  
Vol 30 (3-4) ◽  
pp. 316-330 ◽  
Author(s):  
Susanne Walther
Keyword(s):  
Criminal Justice ◽  
The State ◽  
Sufficient Evidence ◽  
Criminal Courts ◽  
The Public ◽  
Private Interests ◽  
Justice Process ◽  
Criminal Justice Process ◽  
The Right ◽  
Civil Courts

The role of the victim within the public criminal justice process has traditionally been one of supporting public prosecution. Without the victim's cooperation, police and prosecutors would neither be informed about the occurrence of crimes, nor be able to bring sufficient evidence to secure convictions or extra-judicial settlements. In Germany, for instance, about 90% of all prosecutions are initiated by private complaint.Compared to what the victim gives the state, the state traditionally gives little to the victim. While the victim's procedural position has been strengthened in Germany in recent decades, namely by the expansion of the right to join the prosecution as a collateral complainant, procedural participation alone has not been sufficient to satisfy the victim's need to be made whole. Victimological research indicates that the victim has a profound interest in compensation of damages. However, since according to our traditional understanding, the victim's claims and the State's claims against the offender are inherently different in nature, they ought to be governed by different types of principles and proceedings. Doctrinally, the criminal courts settle the State's conflict with the offender, while the victim's conflict with the offender is a matter for the civil law and the civil courts. Therefore, the legal consequences of crime, it is believed, reflect primarily the needs of the general public and not the “private” interests of the victim (whether defined as to receive: compensation; reparation; satisfaction; vindication).

scholarly journals STATE LIABILITY VIS-À-VIS VICTIMS OF CRIME IN POST-1994 SOUTH AFRICAN CASE LAW – SOMETHING NEW OR A REINVENTED WHEEL?

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
John C von Bonde
Keyword(s):  
Public Policy ◽  
South African ◽  
Case Law ◽  
The State ◽  
Legal Remedy ◽  
Victims Of Crime ◽  
Failure To Protect ◽  
State Liability ◽  
Fresh Impetus ◽  
Law Of Delict

Since 1994 South African courts have dealt with numerous cases where victims of crime have sued the State for its failure to protect them from criminal violation. This article explores these cases in order to ascertain the juristic nature of this liability and the criteria applied in ascertaining whether said liability exists under given circumstances. The author concludes that the legal remedy granted victims is based on the normal rules of the law of delict. Despite the constant reference by judges to constitutional imperatives, the matter is guided by the normal delictual criteria of reasonableness and public policy which, granted, have to be ascertained in deference to constitutional norms. The essential test has thus not changed since to the inception of the Constitution. Nevertheless, it appears that the courts have drawn fresh impetus from the Constitution in granting the claim of the victim of crime. South African courts have thus far shown opposition to the granting of punitive or constitutional damages to victims of crime though the possibility of the granting thereof in future has not been ruled out unequivocally.

scholarly journals Atsakomybė už valdžios institucijų padarytą žalą aplinkos srityje

Teisė ◽  
2009 ◽  
Vol 72 ◽  
pp. 129-140
Author(s):  
Ugnė Gailiūnienė
Keyword(s):  
Civil Liability ◽  
Case Law ◽  
Causal Link ◽  
Public Institutions ◽  
Property Damage ◽  
The Public ◽  
Compensation For Damage ◽  
State Liability

Straipsnyje aptariama kompensacinė valdžios įstaigų atsakomybės funkcija, t. y. žalos, jų padarytos aplinkos srityje, atlyginimas. Plačiau nagrinėjama civilinė valstybės atsakomybė už konkrečiam asme­niui ar jo turtui padarytą žalą aplinkos srityje, teismų praktikos pavyzdžiai, iliustruojantys vieną ar kitą atsakomybės sąlygą, – neteisėtus valdžios institucijų veiksmus, asmens dėl tokių veiksmų patirtą žalą ir priežastinį neteisėtų veiksmų ir žalos ryšį. The publication examines the compensatory function of state liability, i.e. compensation for damage caused by the public institutions in the environmental field. It discusses the civil liability of state for the bodily or property damage in the environmental field, as well as the examples of the case law illustrating the liability conditions – unlawful actions of public institutions, damage caused as a result of those ac­tions and causal link between unlawful actions and the damage.

Notes: ‘Observations’ on the State Capture judgment

2021 ◽  
Vol 138 (3) ◽  
pp. 477-500
Author(s):  
Michael Tsele
Keyword(s):  
South Africa ◽  
Case Law ◽  
The State ◽  
Controversial Issue ◽  
Court Decision ◽  
Constitutional Court ◽  
High Court ◽  
The Public ◽  
State Capture ◽  
The Law

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

scholarly journals Analysis of state of public financing of environmental protection

2021 ◽  
Vol 6 (13 (114)) ◽  
pp. 106-119
Author(s):  
Nataliia Yaroshevych ◽  
Volodymyr Stybel ◽  
Bogdan Gutyj ◽  
Oleh Hrymak ◽  
Lesya Kushnir ◽  
...  
Keyword(s):  
Environmental Protection ◽  
The State ◽  
Main Task ◽  
Environmental Tax ◽  
Significant Discrepancy ◽  
Protection Measures ◽  
The Public ◽  
Tax Revenues ◽  
State And Local ◽  
Public Economy

The main task of this study consists in evaluating the state of funding for environmental protection measures and substantiating the ability of the state and local communities to increase investments in environmental protection. To this end, the following was studied from 2010 through 2020: 1) mechanisms of filling and using funds of the Environmental Protection Fund of state and local budgets; 2) proportions of distribution of environmental revenues and expenditures between levels of the budget system. The analysis results showed that opportunities of the public economy sector in terms of environmental investment are reduced because of imperfect distributing mechanisms: ‒ the budgetary expenditures for environmental protection measures; ‒ the environmental tax revenues to the budget funds. It was established that a significant part (about 70 %) of the "environmental" funds of the public economy sector is directed to non-priority goals and measures. Less than half of the amount of environmental tax revenues is allocated for financing environmental activities. This does little to address pressing environmental issues and hinders the sustainable development of the country. There was a significant discrepancy between the tax burden on "polluters" of water bodies (3 % of the total amount of environmental tax) and the levels of their polluting activities (30‒40 % of all costs of the national economy to eliminate the effects of pollution). In order to increase public investments in the reproduction of the environmental and natural resource potential: 1) ways to improve the mechanism of using the Fund of Environmental Protection were proposed; 2) reserves for increasing capital environmental investments from the budget have been identified.

scholarly journals Balancing the Doctor’s Right to Respect to Business Reputation with the Public’s Right to Freedom of Expression (Based on the Case Law of the European Court of Human Rights)

Medicne pravo ◽  
2020 ◽  
Vol 2020 (2) ◽  
pp. 24-33
Author(s):  
I. O. BOGOMAZOVA ◽  
◽  
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Ethical Behavior ◽  
Freedom Of Expression ◽  
Case Law ◽  
Negative Information ◽  
The Public ◽  
European Court ◽  
Ethical Norms ◽  
Fair Balance

The article covers the issue of dissemination of negative information about the doctor on the example of the European Court of Human Rights case law. It has been emphasized on the circumstances in which it seems possible to strike a fair balance between a doctors’ right to protect their business reputation and the freedom of expression of others. It has been established that the business reputation of the doctors is closely related to the ethical norms of their behavior. Dissemination of negative information, in particular, about the doctor is one of the manifestations of freedom of expression. However, it is important to remember that such negative information shall be true; otherwise, this activ- ity would not comply with the law. In the case of a restriction of a person’s right to freedom of expression, the European Court of Human Rights proposes to take into account the following factors: whether such a restriction was based on law, whether it pursued one or more legitimate aims and whether it was necessary in a democratic society to achieve those aims. Of course, the dissemination of negative information about a doctor affects his or her business reputation, but in order to achieve a fair balance between competing interests in this area (provided that such information was true) the public interest will prevail, because the dissemination of health information is of particular interest for the public. A fair balance in these relations will also provide such circumstances as: good faith and ethical behavior of those who publish negative information, the way the material is presented, the validity of the information disseminated, the real ability of the doctor to respond to these allegations. Key words: business reputation of a doctor, dissemination of information, European Court of Human Rights.

scholarly journals Direitos, deveres e responsabilidade civil: uma análise da prestação do serviço público de energia elétrica através do diálogo das fontes

2017 ◽  
Vol 1 (36) ◽  
Author(s):  
Bruno Nubens Barbosa Miragem ◽  
Ítalo Bronzatti
Keyword(s):  
Public Service ◽  
Service Providers ◽  
Rio Grande ◽  
Case Law ◽  
The State ◽  
State Court ◽  
Rio Grande Do Sul ◽  
The Public ◽  
The Difference

RESUMOO presente trabalho analisa o serviço público de energia elétrica através do método do diálogo das fontes, como instrumento capaz de garantir a aplicação das normas a fim de proteger os consumidores desses serviços. Diante da pluralidade normativa que envolve o fornecimento de energia elétrica, que pode representar ameaça aos direitos dos consumidores, avalia a prestação do serviço de energia elétrica, analisando os direitos dos consumidores e os deveres dos fornecedores, no que diz respeito aos princípios protetivos: adequação, eficiência, segurança e continuidade. Por fim, analisa a responsabilidade civil dos fornecedores de serviços públicos, examinando a jurisprudência do Tribunal de Justiça do Estado do Rio Grande do Sul acerca da responsabilização das concessionárias no caso de falha na prestação dos serviços, bem como a diferença na caracterização entre caso fortuito interno e externo.ABSTRACTThis paper analyzes the public electricity service through the dialogue of sources method, as an instrument to ensure the implementation of laws in order to protect these services' consumers. Due to the normative plurality involving the supply of electricity that can represent a threat to the consumers' rights, it evaluates the provision of electricity service by analyzing consumers' rights and suppliers' duties, regarding the following protective principles: adequacy, efficiency, security and continuity. Finally, it analyzes the civil responsibilities of public service providers, examining the case law of the State Court of Rio Grande do Sul about the responsibilities of the concessionaires in case of failure in the services provided, as well as the difference between internal and external fortuity.

Conclusion

2016 ◽  
Author(s):  
Kurt X. Metzmeier
Keyword(s):  
State Government ◽  
Case Law ◽  
The State ◽  
The Public ◽  
The 1950S

By the late 1870s, Kentucky legislators recognized that the system of reporting developed by the nominative reporters had become so regularized that it could be absorbed into the (still undersized) machinery of state government. In 1878 a new law was passed that put the printing of reports in the hands of the public printer and retained copyright for the state. The existing nominative reports (including the much criticized Sneed’s Decisions and Thomas B. Monroe’s legally questionable second volume) were renumbered volumes 1–77 of the new Kentucky Reports. They soon faced an aggressive national competitor, West’s South Western Reporter, established in 1886. By the 1950s, the South Western Reporter had become so preferred that the state discontinued the official Kentucky Reports. Today, the Westlaw Next database contains all Kentucky case law from Hughes through the South Western Reporter.

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