THE ABSENCE OF UNFIED ORDER OF INTERNATIONAL CONCILIATION AGREEMENTS ENFORCEMENT

This article analyzes the problem of absence on international level enough legal regulation for unobstructed enforcement of international conciliation agreements, concluded in mediation, as well as contains the possible way of solving the problem through adjustment of domestic law with international framework.

Europejski Trybunał Praw Człowieka wobec totalitarnej destrukcji porządku własnościowego w Polsce. Część 1

The aim of this article is to analyze the role of the European Court of Human Rights in overcoming totalitarian regime in the area of proprietary rights in Poland, the only state not adopting special legislation to meet these claims. It is the destruction of this part of the traditional legal system after World War II that can be considered as a key element of totalitarianism itself. However, this paper is not focused on historical developments, but rather on their current consequences, trying to evaluate links between them and modern legal order — particularly important in terms of limited temporal court jurisdiction over the area. In terms of the rule of law principle, it is essential how can a state cope with making good damages suffered by the victims. Careful research has proved practical application of the domestic law as well as functioning of public institutions to be based on serious systemic deficiencies making effective legal protection very difficult and sometimes impossible. They were rulings of the court playing a crucial role in supporting national authorities and setting standards of better protection — also achieved through judicial dialogue with the national judiciary. This very case-law also has a more general meaning, as it pictures a mode of ECHR’s jurisdictional activity and quite functional approach to the interpretation of the convention. This article is divided into two parts. The first one presents the general meaning of the area, the genesis of the protection, and major trends in the case-law development. The second part will offer a legal analysis of art. 1 and careful a systematization of leading rulings.

The concept and social essence of extremist crimes

The article actualizes the problem of understanding the concept of «extremism», which is due to the variety of research approaches that currently exist in legal science. The author draws attention to the need for an unambiguous interpretation of the phenomenon under consideration, especially in terms of the harmonization of international and domestic law, in order to increase the efficiency of law enforcement practice. An attempt is made to determine the social essence of extremist crimes.

Foreigners and persons without citizenship as subjects of administrative judiciary

The right to go to court, including administrative, is one of the most important rights of citizens guaranteed by the Constitution and laws of Ukraine. In addition to the general constitutional right to judicial protection, in particular, Art. 7 of the Law of Ukraine «On the Judiciary and the Status of Judges» of 02.06.2016 № 1402-VIII, guarantees everyone the protection of his rights, freedoms and interests within a reasonable time by an independent, impartial and fair court established by law. Foreigners, stateless persons and foreign legal entities have the right to judicial protection in Ukraine on an equal footing with citizens and legal entities of Ukraine. Access to justice for every person is ensured in accordance with the Constitution of Ukraine and in the manner prescribed by the laws of Ukraine. However, along with the guaranteed right to apply to the court of foreigners, stateless persons (refugees, migrants, immigrants), such a category of subjects of administrative proceedings as apartheid remained outside the scope of domestic law. In order to eliminate the shortcomings of the legislative regulation of the legal status of apartheid in Ukraine, the author came to the conclusion that it is necessary to eliminate the existing shortcoming by amending the Law of Ukraine «On Legal Status of Foreigners and Stateless Persons» of 22.09.2011 № 3773-V. Keywords: legal status, foreigners, migrants, apartheid, justice, legislation

Correction and resocialization of convicts and related concepts

Correction and resocialization of convicts today is a stable legal structure that has been repeatedly used in legal acts and leading research. Meanwhile, historically, “correction” has been used in domestic law alongside “re-education”. “Rehabilitation” and “reintegration” are familiar to international law. The mixing and unsystematic application of the above and a number of other legal terms is not uncommon, which encourages a more detailed study of their essence and relationship between them. The article is devoted to the research of the terms “correction”, “education”, “resocialization”, “social adaptation”, “social rehabilitation” and “reintegration”. The authors set out to focus on a generalized study of: 1) the historical context, 2) the period of existence of legal relations, defined by the relevant term, 3) the essence and content, 4) features of regulation and based on analysis of the provisions of current legislation and views in the scientific literature to outline the boundaries of each of the above terms and indicate the features of their relationship. To conduct the widest possible analysis, the authors used the current legislation of Ukraine, domestic and foreign scientific literature, dictionaries, draft laws, provisions of ECtHR decisions, and documents prepared by the UN Office on Drugs and Crime. The analysis was conducted taking into account not only the criminal-executive understanding of the above concepts, but also their philosophical, social, political, medical and so on. According to the results of the research, a generalized understanding of each of these terms was formed and compared with each other. The authors came to the conclusion that the current legislation needs to be modernized and brought in line with international regulations, where instead of “correction” and “resocialization” of convicts use the terms “social rehabilitation” and “reintegration”.

Przedterminowe zwolnienie z kary pozbawienia wolności skazanych za ludobójstwo, zbrodnie przeciwko ludzkości i wojenne na mocy orzeczeń międzynarodowych trybunałów karnych „ad hoc” oraz ich sukcesora w postaci Mechanizmu Rezydualnego ONZ

In the last decade of the 20th century, a war in the former Yugoslavia broke out, once again making Europe a witness to an armed conflict. Almost at the same time, another local ethnic bloodshed started, but this time in distant Africa — in Rwanda. Both these events included the most horrifying international crimes against humanity: genocide and war crimes. To prosecute the most important commanding figures involved in these conflicts and hold them criminally responsible, two ad hoc United Nations tribunals were created: International Criminal Tribunal for the former Yugoslavia in Hague and International Criminal Tribunal for Rwanda in Arusha. They finished their operation in 2017 and 2015, respectively. The tasks of conducting and completing all ongoing proceedings, including law enforcement, after the completion of their mandates have been entrusted to the UN International Residual Mechanism. One of the crucial assignments of the tribunals and later the Redisual Mechanism was to deal with the request on behalf of the convicted for granting them early release. Although none of the statutes of the aforementioned courts provided any ground for early release, soon it was accepted that both tribunals, as well as their successor, were entitled to proceed despite this issue. As soon as in 2001, the first convict was granted early release, but with no conditions. It is estimated that, to date, more than 2/3 of all convicted by the Tribunals have been released before the termination of their sentence. This should raise the question of how to rehabilitate that kind of offender, convicted of genocide, war crimes, or crimes against humanity, to ensure they do not pose a threat to society anymore. Especially since the offenders serve their punishment outside the country of their origin — meaning, different rules apply according to the domestic law regulation of the state that voluntarily agreed to enforce the sentence. This article analyzes the juridical approach of the tribunals and the Residual Mechanism on the issue of early release of the convicts involved in the armed conflicts in the former Yugoslavia and Rwanda.

International legal personality in public and private law: problems of theory and practice

At the present stage of the development of international relations, an important aspect is the specification of the rights and obligations of the subjects of international law, which are elements of international legal personality, which is subject to multifaceted study. The research of its problematic elements is fundamental to improving the rules of international law in general and domestic law in particular. The work aims to study and identify problems of theory and practice of international legal personality in public law. The object of research is international legal personality in public law. The subject of the research is problematic aspects of the theory and practice of international legal personality in public law. The following methods were used in the study: observation, historical method, method of analysis, comparison, generalization, the system method, method of analysis of normative documents. As a result of the research, the institute of international legal personality, in general, was analyzed, its peculiarities and problematic aspects were determined.

Denial and Rejection: International Law and Donald Trump’s Foreign Policy Agenda

Since Trump’s Administration took office, this elusory question has haunted most issues in the international law. So far, the Trump Administration has been in office for a little over forty-four months, a tumultuous period that has disrupted international law and international politics. Another looming question is whether the Trump Administration’s many initiatives will permanently change the nature of America’s foreign policy? In particular, this paper will discuss Trump’s foreign policy, since his emerging philosophy seems to be a general rejection of the Obama approach: not “engage-translate-leverage,” but rather, “disengage black hole-hard power.” Wherever possible, the Trump instinct seems to be to disengage-unilateralism or, as he calls it, “America First.” The United States of America and Trump are sturdy actors in the making and unmaking of international law. But the basic idea underlying international law is that international law is no longer just for nation-states or national governments. What Jeremy Bentham once called “inter-national law”, the law between and among sovereign nations, has evolved into a hybrid body of international and domestic law developed by a large number of public and private transnational actors.

„PACIJENTOVO PISMO“ KAO PRAVNI OSNOV ZA PRIMENU PASIVNE EUTANAZIJE

The subject of the paper is the relationship between the duties of physicians and other medical professionals towards the dying patient (as a provider of medical services) and the patient's right to personal choice and preservation of his own right to self-determination in relation to body and life, which is a special subjective civil right. The author discusses the legal-medical (but also ethical) issue of the patient's ability to freely decide not to agree to a medical measure of artificial prolongation of life or suspension of already started measures. The issue is examining the limits of the so-called permissibility of “passive euthanasia”, which is indirectly recognized in domestic law by the Law on Patients' Rights and the legal basis for its application in one particular modality, the so-called "Patient letter" (living will) which is an established legal instrument in some foreign legislation and practice. Analyzing the experience of some foreign countries, the author supports the introduction of such an institute - as a kind of anticipated directives in domestic law, referring to the patient's constitutional right to self-determination, which embodies the supreme good, even more valuable than (unwanted) life. Such a solution is in line with the principle of human will autonomy, freedom to dispose of life as a personal good, and potentially a reflection of the so-called "the right to die", which is the reverse of the right to life

PROBLEM OPSTANKA BRAKA NAKON PRAVNE PROMENE POLA JEDNOG OD SUPRUŽNIKA

By its decision in case Goodwin v. United Kingdom (2002), The European Court of Human Rights has established positive obligation of states parties to find appropriate means of achieving legal recognition of one’s gender reassignment in the context of the right to protection of private life. Under the direct influence of the mentioned judgement, Constitutional Court of Serbia was deciding on constitutional complaint of a transsexual in 2012 and made the decision that administrative authorithies dealing with civil status registry have subject-matter jurisdiction to enter gender reassignment data in birth records. After, The Law on Civil Records was amended in 2018 enabling adoption of by-law act that esentially involves substantial requirements for legal recognition of preferred gender in birth records. Hence, it is possible for a transsexual to have his/her preferred gender legally recognized during the marriage. Since domestic law still does not allow same-sex marriages, the issue of such marriage survival may arise when both spouse accept legal gender reassignment deciding not to break up their marriage bond. The problem of marriage survival after legal gender reassignment in states that have enabled same-sex marriage is part of legal history. However, for legislations that insist on the heterosexual idea of marriage, these cases give rise to legal difficulties. The historical-legal and comparative-legal approach indicate that after the legal change of gender during the marriage, the values of marriage and the right to gender identity are viewed as opposites. In this regard, a transgender person is required to sacrifice marriage or to renounce his or her right to gender identity. However, the law of Serbia on this issue is, to put it mildly, indefinite. Thus, on the one hand, the Serbian Constitution supports the heterosexual view of marriage, while on the other hand it guarantees the freedom of divorce and the inviolability of human dignity. At the same time, the existing rules on the conditions for legal gender reassignment do not regulate the question of the fate of such a marriage. At the same time, within the framework of the domestic legal order, there is no direct legal means by which the mentioned same-sex marriage would end against the will of the spouses. Ultimately, there is a dilemma as to whether the preservation of the institution of marriage can be insisted on at the expense of the will of the spouses as individuals. According to domestic law, a legal change of gender in the birth records occurs on the basis of a constitutive administrative act of the municipal or city administration responsible for keeping the civil records. The mentioned administrative act determines the gender reassignment on the basis of the certificate of the appropriate health institution. The effect of gender reassignment is tied to the date of the decision of the administrative body and is valid for the future. Thus, a legal change of gender does not affect the parental relationship that may have been previously established between the person who legally changed the gender and the child. Therefore, imposing the termination of a marriage after a legal reassignment of gender of one of the spouses cannot be acceptable. However, as marital status is only one segment of the legal status of transgender persons, it is necessary to enact a special law that would regulate their legal status and eliminate problems that may arise in practice. In the case of a possible procedure for assessing constitutionality and legality, the decision of the Constitutional Court of Germany from 2008 should serve as a guide for the Constitutional Court of Serbia. According to this decision, the marriage would remain valid even after the legal change of gender of one of the spouse until the special legislation that would determine the manner of exercising the right to gender identity is adopted in cases when spouses do not want divorce.