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VOL. 4 | ED. 1 January 11, 2016

Happy Birthday, Lawyr.it! 10 issues, 10 countries and 3 years of shedding light on opportunities for law students in CEE


We would like to thank our kind supporters Main sponsor CEE Legal Matters www.ceelegalmatters.com

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Institutional partners Law Schools Babes-Bolyai University Law School, Cluj-Napoca, Romania West University of Timisoara Law School, Timisoara, Romania Alexandru Ioan Cuza University Law School, Iasi, Romania Masaryk University Law School, Brno, Czech Republic Central European University, Budapest, Hungary

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LAWYR.IT TEAM Executive Editor Raluca Alexandra Maxim (Babeş-Bolyai University/Jagiellonian University)

Senior Editors Alexandra Mureșan (Babeş-Bolyai University) • Andreia Moraru (Leiden University) • Radu Șomlea (Babeş-Bolyai University)

Junior Editors Adina Ionescu (Babeş-Bolyai University) • Angeliki Mavromati (Aristotle University of Thessaloniki) • Cătălin Sabău (Babeş-Bolyai University) • Berihun Gebeye (Central European University) • Diana Lucaciu (Babeş-Bolyai University) • Henok Gebeyehu (Central European University) • Krisztina Petra (Eotvos Lorand University) • Maria Cojocaru (Babeş-Bolyai University) • Mădălina Moldovan (Babeş-Bolyai University) • Oleksandr Zablotski (University of Vilnius) • Raluca Trîncă-Găvan (Babeş-Bolyai University) • Răzvan Boștinaru (Alexandru Ioan Cuza University) • Simona Elena Ignat (Babeş-Bolyai University)

PR Managers Andrea Nikolic (University of Belgrade) • Andreea Lucaci (University of Bucharest) • Andreea Neșu (Babeş-Bolyai University) • Dora Maria Demble (University of Vienna - Juridicum) • Marek Tesar (Masaryk University) • Maria Belevoni (Aristotle University of Thessaloniki) • Paula Alexandra Ungureanu (Alexandru Ioan Cuza University)

Legal Researchers Adam Nagy (Central European University) • Ana Maria Paponja (University of Mostar) • Angeliki Tsanta (Aristotle University of Thessaloniki) • Daniela Ghicajanu (Babeş-Bolyai University) • Diana Buzilă (Babeş-Bolyai University) • Fotis Kokkinis (Aristotle University of Thessaloniki) • Georgiana Caramihai (University of Bucharest) • Mădălina Enea (Alexandru Ioan Cuza University) • Naida Softic (University of Sarajevo) • Rucsandra Grigoroaia (Alexandru Ioan Cuza University) • Sabina Aionesei (University College London) • Zvijezdana Markovic (University of Banja Luka) • Sarka Silhankova (Masaryk University) Disclaimer: Given that Lawyr.it is a fully student-run magazine, nothing from its pages should be understood as legal advice of any kind. Any questions about legal assertions, conclusions, sources used or representations made in these pages will be re-directed to the person who made them. If you do want to get in touch with one of the authors, please write to us at editors@lawyr.it at any time.


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EDITOR'S NOTE By Radu Somlea

As we enter a new year, we are thrilled to start it by hitting a landmark: our

tenth issue. For the past three years, the Lawyr.it magazine has seen a continuous growth and this issue is a testament to that. Our team now spans over ten countries in Central and Eastern Europe, which means we can reach more and more students, but most importantly, the quality and content of the articles is better than ever. I am also honoured to announce that I will now take over as the magazine’s Managing Editor and take on the challenging task of continuing to improve it. For our tenth issue our editorial team has cherry-picked a number of ten articles covering a wide range of subjects. In the Domestic section you can read about Radu Șomlea subjects such as the hate crime regulation in Hungary, the effects of the Dayton treaty in Bosnia & Herzegovina or joint authorship in unintentional crimes if you’re interested in Romanian criminal law. The International Focus section for this issue is focused on the study of Human Rights. You can find out more about the right to a healthy environment in the EU, or about the right to wear religious clothing, namely the Muslim headscarf. Lastly, the Reflections section provides an analysis of the doctrine of a ‘just war’ according to the Polish scholar Stanislaus of Scarbimiria while also providing some interesting historic background, and a legal overview on the technique of clinical trials. It also contains an article of this issue’s Guest author, Ms. Giulia Priora, on the role of copyright collective societies in the EU. In the context of the highly controversial subject of the refugee crisis that Europe is currently facing, we decided to have a special report section devoted to the subject. Our editors explore, in a comparative manner, how different countries handle granting asylum, offering a thorough analysis on the definition of the refugee within the European Union. You can also find an overview on how two international bodies (the EU and the UN) deal with the refugee crisis as well as a report on the several Human Rights violations during this time. Even the two interviews of this issue deal with this sensitive subject. One of them is with Prof. Peter Rodrigues, Professor of Immigration Law and Chairman of the Institute of Immigration Law of the University of Leiden, as well as former Commissioner of the Dutch Equal Treatment Commission. The other interviewee is Andrés Gascón-Cuenca, the director of the International Human Rights Clinic, at the University of Valencia, Spain. Following the theme of Human Rights, our two debaters for this issue, Xenia Burghelea and Adrian Hodiș, both lawyers, try to argue whether or not access to the Internet should be considered a fundamental right. Last but not least, do not forget to check out this issue’s contributions to the Question of the issue rubric, where our readers have explained whether and how their ideas about being a lawyer changed since they started law school. Make sure to read all the interesting and, at times, surprising answers from law students and legal professionals from all over Europe. With the editorial process now over, we feel that the results are some of the best we have had so far. I will strive, along with the team to achieve the same level of quality in the future, and to hopefully, even surpass it. This would not be possible without your support. Thank you, and enjoy the read! 4


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IN THIS EDITION Briefing Introduction to Greek Law Schools (p.8) The Act on Control over Certain Investments - between the state’s needs and the European legislation. Report on Polish law (p.10) New Project: Lawyr.it Masters Abroad! (p.13) Opportunities for law students: what’s next (p.14)

Domestic Focus The Romanian legislation for environment. What has to be done? (p.18) The refugee crisis: a Bulgarian perspective (p.21) Bosnia: Twenty Years of Dayton’s Bitter Legacy (p.24) Hate Crimes – Hungary’s Twisted Use of the Relevant Law (p.28) Joint Authorship in the Case of Unintentional Crimes: When Reality Demands a Solution to Controversy (p.31)

Reflections Clinical trials: a legal overview (p.38) The right of people to declare war and to a specific wartime conduct in the ‘De bellis iustis’ by Stanislas of Scarbimiria (p.44) Special Guest: The (law?) abiding role of copyright collecting societies at EU level (p.48)

International Focus Comparative Human Rights Law and the Muslim Headscarf: the Position of the UN Human Rights Committee and the European Court of Humans Rights (p.56) The right to a healthy environment in the system of the European Convention on Human Rights (p.60) Special report: On the Refugee Crisis (p.64)

Professional Spotlight Interview: Andrés Gascón-Cuenca (p.84) Interview: Professor Peter Rodrigues (p.88)

Question of the Issue QoI: Have your ideas about being a lawyer changed since you started law school/ job? (p.92)

Devil's Advocate Should access to the Internet be considered a fundamental right? (p.98) 5


BRIEFING


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BRIEFING Introduction to Greek Law Schools This article is an introduction to Greek Law Schools, Hellenic exams, while AUTh accepted 370 students including useful facts about admissions, programme who had scored 18.058/20.000 or higher, and DUTH structure and graduate prospects. 420 who had scored 17.546 or higher. Greece follows the continental European tradition of a civil law system, influenced by both German and French law. At a university level, aspiring law practitioners are given the opportunity to familiarise themselves with a wide range of prominent topics and questions from all legal fields, and observe the developments in their country’s legislation.

Curriculum

During their first semester, students of all law faculties study ‘Introduction to Legal Science’, which aims to shape their legal thinking through a presentation of the basic principles of law. A ‘Legal History’ course is also mandatory; the course focuses on Ancient Greek and Roman Law, and the way they have affected modThree of the Greek public universities offer a law de- ern legal concepts. According to Konstantinos Koulegree: the National and Kapodistrian University of lis, a first year student at DUTh, “these courses help Athens (UoA), Aristotle University of Thessalon- us understand the development of our laws from back iki (AUTh) and Democritus University of Thrace then to today, and give us a general idea of how to (DUTh). form legal arguments properly.” Undergraduate Admissions

All junior students are taught the key principles of the Greek political system in ‘Constitutional Law’, which High school graduates in Greece are admitted into is considered the most demanding course of the first higher education on the basis of their total score at semester. ‘Administrative Law’ is offered in the second national level entrance examinations (‘Pan-Hellen- semester to complete the students’ knowledge of the ic’ exams), which are held once a year in early May. inner workings and organisation of the Greek State. Courses of gravity for Law School admissions are Ancient Greek and History, while candidates also have to UoA and AUTh introduce their first year students sit for exams in Modern Greek, Latin, Greek Litera- to ‘General Principles of Civil Law’, a third semester ture, and in an additional course of their choice from course in DUTh. ‘Public International Law’ is a manthe high school curriculum (Math, Physics, Biology datory course in all universities, but DUTh also offers or History II). After the release of the examination re- ‘European Union Law’ in the second semester, while sults, applications are submitted centrally through the UoA and AUTh choose to begin ‘Criminal Law’ and Ministry of Education. ‘Commercial Law’ courses. All faculties offer a ‘Family Law’ course during the first year. International students also submit their applications through the Ministry in May, and later take their Pan- Each faculty structures its curriculum differently Hellenic exams in September. For those who have not throughout the remaining 6 semesters, but all teach attended a Greek school, an exam in ‘Modern Greek’ a wide range of similar courses from all legal areas. is vital to their admission. ‘Contract Law’, ‘Law of Obligations’, ‘Labour Law’, ‘Law of Succession’, ‘Constitutional Freedoms’, ‘Private Admissions to all three Law Schools are highly com- International Law’, ‘Tax Law’, ‘Law of Industrial and petitive; only candidates who rank among the top 5% Intellectual Property’, ‘Company Law’ and ‘Consumer nationwide in their Pan-Hellenic exams are guaran- Protection’ are among each law school’s core modules. teed entrance. For example, in 2015 UoA accepted 420 Procedural courses regarding civil, administrative and students who had scored 18.223/20.000 at their Pan- criminal courts are also offered. 16 10


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Most compulsory modules are taught in lectures, as well as in tutorials, through which students acquire a deeper understanding of the topics presented in the lecture. For Elen Kharatsidis, a senior AUTh student, the tutorials serve as a good revision. “Through case studies the tutors help us go over the relevant theory once more, and answer any questions we might have. It is a good preparation for exams.”

In the final two semesters, all three universities offer advanced courses in ‘Civil Law’, ‘Civil Procedure’, ‘Public Law and Administrative Procedure’, ‘Commercial Law’ and ‘Criminal Law and Criminal Procedure’, while UoA and DUTh offer an additional advanced course in ‘International Law’. These modules synthesise the individual key disciplines of law, aiming to provide students with a deeper insight into each subject matter, through problem questions and case studies of controversial topics, usually debated in the Greek legal theory and practice. For Angeliki Pantzartzidi, a 5th year student in AUTh, “through the Advanced Courses, students learn to recognise and handle the complexity that is the application of the knowledge they have acquired during their years of study. It is a good opportunity to test ourselves, and prepare for legal practice.”

Further, each Faculty organises a number of educational visits to the local Civil and Martial Courts, and to the Mental Hospital and Rehabilitation Centre, among others. Katerina Hatzidaki, a recent AUTh graduate, recalls a visit to the Courthouse where she and her fellow ‘Criminal Procedure’ students attended a criminal trial: “Our professor himself was litigating, and I could see how he applied the theory he had taught us during class. It was a turning point for me; I realised how important it is to know not only the rel- Teaching language is Greek, but all faculties also offer evant law, but also how to interpret it in a way that will courses in English, German and French. convince the Court to decide on your client’s favour.” Assessment In the course of their studies, students have the opportunity to enrich their knowledge with elective There are two exam periods; January/February for fall modules and seminars from all departments. “AUTh semester courses, and June for the spring semester allows us to choose from a pool of 125 modules, as ones. Re-sit exams for both semesters are held in Sepspecialised or as general and all-encompassing as one tember. The assessment may be in the form of writmight want, taught in four different languages, and ten or oral examination. Each module is marked on a from a wide variety of legal fields,” reports Karolina scale of zero to ten (0-10), with a minimum pass mark Zamanakou. “This gives us the opportunity to test the of five (5). waters in various specialties early on and see which For the award of a law degree (LL.B or in Greek ‘Ptyone we have an inclination towards. Personally, mod- chion’), students must obtain 240 credits (ECTS), ules in the commercial law department like ‘Elec- during a period of 8 semesters (4 academic years), at tronic Commercial Law’ and ‘Regulation of Financial minimum. Successful examination in 41 courses, 31 Markets’ helped me realise that I am interested in a mandatory and 10 elective, is necessary to obtain 240 career in corporate law and finance.” ECTS in UoA; 50 courses, 37 mandatory and 13 elecAmong the many elective modules offered by all three tive in AUTH; and 49 courses, 43 mandatory and 6 Schools each academic year, there are ‘Economic elective, in DUTH. Criminal Law’, ‘Political Science’, ‘International Criminal Law’, ‘Maritime Law’, ‘International Humanitarian Law’, ‘Sociology of Law’. These are often based on student presentations and subsequent debate, training students in legal research and writing. In DUTh, students can obtain a specialised degree, if 5 of their elective courses are allocated to one department on the basis of their subject matter.

Graduate Prospects To practice law in Greece, law school graduates must work as trainee lawyers at a law firm for 18 months, before sitting for the Bar Exam. Successful candidates acquire a licence to practice law, and become members of their local Bar Association.

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BRIEFING The Opportunities Act on Control for law over students: Certain Investments what's next - between the state’s needs and the European legislation. Report on Polish law On August 5, 2015, the President of the Republic of Poland signed a new Act on Control over Certain Investments dated July 24, 2015 (Journal of Laws of 2015, item 1272). On September 30, 2015, the ‘Act’ entered into force in Poland. The law started controversies even before its adoption, because the protectionist attitude of the state was considered to be not only contrary to certain elements of the European legislation, but also to the European Convention of Human Rights and several aspects of international law. The aim of the Act is to create mechanisms in order to protect against hostile takeovers of companies operating in key sectors of the Polish economy (Kluwer Competition Law Blog, 2015). While this goal might be beneficial to Polish companies, the way in which it is put into action is considered to be problematic. Firstly, the law creates a right to veto for the Polish government. The action plan proposed by the Act is that, before the acquisition of shares of strategic companies, the buyer will have to notify the Minister of the State Treasury and to get an official approval. The consequence of the new regulations is that the Minister of the State Treasury becomes a third authority, next to the President of the Office of Competition and Consumer Protection and the Financial Supervision Authority, authorised to control mergers and acquisitions in Poland (Polish Competition Law, 2013).

total number of votes over the last two years, in the decision-making body of the company or holding an equity interest in a partnership with a value of at least 20% of the value of all contributions made to the partnership (Kluwer Competition Law Blog, 2015). As a consequence, the Ministry has the possibility to create a list of entities which are subject to protection under the new law. The main role of the institution is to assess the impact of the possible acquisition on the Polish economy, but it can also evaluate whether the transaction is a threat to the independence of Poland, the integrity of its territory, the respect of human rights or national security or public order. The ministry has a large margin of appreciation when approving a transaction, as the criteria presented in the Act is broad, using statements such as ‘the market share of the entity in question’; ‘the scale of the business’, and the transaction’s potential to ‘upset public order or public security’ (Aleksander Stawicki, 2015).

The decision has to be taken within 90 days from the delivery of the notification or from the initiation of proceedings. For the purchaser, this period might be considered to be too long, as it may negatively influence the development of his business. If the Minister makes an objection, the transaction will be blocked. If the acquisition is made against the objection of the state, or without notifying the Ministry altogether, it The obligation to inform the Minister of the State will be considered null and void. Furthermore, it will Treasury will apply to transactions which involve the be impossible to exercise rights regarding the acquired acquisition of at least a ‘material stake’ in companies shares and all decisions adopted by the decision-makworking in the sectors that are considered to be stra- ing bodies of the company will also be null and void. tegic for the economy. The material stake is defined As far as sanctions are concerned, the failure to comas a situation which influences the activity of an enply with the notification obligation can bring a fine of tity by holding shares representing at least 20% of the

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up to PLN 100,000,000 (EUR 25,000,000) or a penalty of imprisonment between 6 months and 5 years for person acting on behalf of legal person. Decisions will be subject to judicial review by complaint to the administrative court. Judging by its content, the new Polish law introduces an exception to the European Union freedom of capital movement. The control exercised by the state is not related to the State Treasury or to other public entities’ share in the capital of the company, but to the role of the company in the Polish economy and to the fact that the company is restricted from making any changes that might negatively impact the economy. The Act was inspired by laws and other judicial instruments functioning in other EU member states, such as Germany, France and Austria, as well as in other well developed economies, like US and Canada. The decreased levels of international security in the European Union and the state of the economy in Poland have had a significant impact on the adoption of the Act. Another element that conducted to this change was related to recent acquisition attempts of Polish companies that were considered to be contrary to the national security, such as the takeover attempt Grupa Azoty, by Acron, a Russian company. Even though it is not the first of its type, the law seems to be a lot stricter than the anterior and raises some problems regarding the European and international investment law. Some of the strongest critics regarding the Act refer to the conflict with the European law – more precisely, the Treaty on the Functioning of the European Union (TFEU). Articles 52 and 65 of the European treaty refer to the national legislation regarding public policy, public security and public health and the restrictions that the state can impose, as well as the interdiction of arbitrary discrimination or a disguised restriction on the free movement of capital and payments. Based on these articles, it might be considered that the new polish Act provides non-

proportional, arbitrary and discretionary powers to the state. Even if the new law invokes, in a very broad manner, that the interference of the Ministry is justified by the protection of the public order and public security, as well as the state’s integrity and independence, the present situation does not prove in any way that these elements might be as endangered as to justify the new legislation as proportional. On the other hand, the supporters of the Act argue that the state must have the power to prevent issues that can arise from problematic acquisitions. The Polish government has referred to examples of other EU Member States with similar legislation (Marcin Wnukowski, 2015), but whether or not that legislation is as strict as the new Act is a question still left unanswered. Moreover, as far as the investors are concerned, their judicial protection will be impaired by the large autonomy of the Polish state. The objections were raised during the legislative process, when it was also suggested that it would be beneficial to make the new measures proportional and compliant with the EU law. The justifications of the state, as well as of the supporters of the Act, were related to the fact that the situation of Poland and of Europe, generally, makes the case-law of the European Court of Justice ‘outdated’ as far as this form of legislation is concerned (Squire Patton Boggs, 2015). It is essential to know that it is not the first time when the European Commission might start the infringement proceeding against Poland regarding one of its legislative measures. A similar occurrence took place in 2010 and it referred to a similar law on the part of Poland, which was later modified in order to respect the European legislation. The discretionary power of the state, created by the Act, might also be contrary to the case law of the European Court of Human Rights. In cases such as CEC v. Italy, the Court has criticised measures that are ex-

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BRIEFING cessive and disproportionate. In this specific case, the vague criteria used in appreciating the opportunity of the transactions might be appreciated as contrary to the rights of the citizens involved. Secondly, it is essential to take into account that Poland is part of 60 bilateral investment treaties. The purpose of these treaties is to impose the negative obligation of the state regarding the use of unreasonable or unjustified tools that could infringe on the rights regarding the leadership, maintenance, use of the investment, except the situation where this would be justified by public interest, it would not be discriminatory and the investor would receive damages. Based on the role of the state, as a consequence of the Act, Poland might violate the principle of non – impairment, which is imposed by the bilateral treaties. The principle of non-impairment generally refers to the fact that unreasonable or unjustified means may not be introduced if they lead to the impairment of the management, maintenance, use, enjoyment or disposal of the investment (Squire Patton Boggs, 2015). As a consequence of the Act, both the sellers and the buyers will be disadvantaged by the difficulty in selling their shares, due to the fact that the number of buyers is limited by a potential veto of the government. At an international level, the value of the companies might

also decrease, based on the same difficulties, which may be equivalent to an expropriation in the sense of international investment law. Existing companies with foreign ownership could be put on the restricted list, meaning that the law would affect existing investors. These situations are usually solved by means of international arbitration, if all national recourses have already been pursued. Even in this case, it is hard to believe that a national court will be impartial regarding a trial between the state and a private company, which is why critics also warn that this law will create a lack of predictability, which will constitute an issue both as far as transactions are concerned, and regarding the possibility of buyers and sellers to construct a solid long term business plan. In conclusion, even if the Act on Control over Certain Investments might bring certain advantages to the Polish state, it is clear that it will create some problems for both the buyers and the sellers that have been targeted by the law. Taking into account the possible incompatibility with the European law, as well as with many bilateral treaties which were previously signed by Poland, it will be interesting to see which will be the long-term consequences of the change of legislation.

By Georgiana Caramihai

Are you looking for new challenges? Would you like to do something useful and interesting, but you do not know where to look? Check out our

Opportunities section

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New Project: Lawyr.it Masters Abroad! In the last three years, Lawyr.it managed to prove its value for law students in the Central and Eastern Europe, by creating a platform where law students in the region can develop their skills and access opportunities. To continue to do this, starting with this year, the Legal Researchers’ team developed a new project entitled: Lawyr.it Masters Abroad. But this project, as a new opportunity for law students, is the result of the whole Lawyr.it team cooperation. The project will be focused, primarily, on a research work on master programmes in different countries and universities. Being at the beginning, the team is a small one but eager to grow. Hopefully, this year we will have an insight in most of the European countries which have English taught LL.Ms. The main purpose of this new born Lawyr.it area is to bring fresh information for law students willing to expend their legal studies. Our research will help both undergraduates and graduates law students to find a master in almost any European country. The idea of this new opportunity came out as a wish to help other law students in their attempt to apply for a foreign LLM. Any opportunity to study abroad is welcomed not only for the social and cultural benefits that it brings, but also for the professional ones. Our team of researchers hopes to give the information you, law students, need for your choices to study abroad. 2016 will be a year full of opportunities for any law student so stay tuned with Lawyr. it. And please - if you would prefer to read about masters from a specific country, write us at editors@lawyr.it! We will prioritise them, so you will get your information as soon as possible. By Daniela Ghicăjanu Project Coordinator

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BRIEFING Opportunities for law students: what's next January January 19: Rome Model United Nations

February 14: Alternative Dispute Resolution Summer School

The Central European University offers students the opportunity to learn the necessary skills of Alternative Dispute Resolution, by attending either of two standalone sub-courses: a one week ‘International Business Negotiation’ or a one week ‘Mediation Theory and Skills’ programme. The tuition fee for each sub-course is 300 EUR. Postgraduate students in law or business, professionals in law, social science, public administration, psychology, social work, public policy, political science, government and labour relations are invited to apply. They must complete the application form, January 25: Advanced Programme in Law and as well as submit a CV, a letter of recommendation, a statement of purpose and a statement of interest in the Economics in Riga case of the ‘International Business Negotiation’ subRiga Graduate School of Law offers an Advanced Pro- course. gramme for public officials, representatives of civil soFebruary 14: Summer School in Human ciety and academia in European Neighbourhood PolRights Litigation icy countries, Central Asia, and the Western Balkans. The objective is to provide training on the relation- The Central European University, in cooperation ship between the international community and the with Open Society Justice Initiative is launching a EU with the targeted countries. All interested public week-long summer school on Human Rights Litigaofficials, representatives of civil society and academia tion which has the role to help human rights profesfrom are invited to apply by supplying a motivational sionals to develop the skills and knowledge needed to letter, a description of present job function, a CV, cop- successfully bring cases to the regional human rights ies of university diplomas, a recommendation letter, systems and the UN Treaty bodies, and to use those and a confirmation of the ability to undertake studies cases to achieve practical change. Human rights litiin English. gators and activists are invited to apply by completing Model United Nations will be held in Rome between March 5-8, 2016, on the topic of ‘Youth and Future Global Challenges’. High school students in their final two years, undergraduate, postgraduate and Doctorate students, as well as recent graduates are invited to apply by filling the application form, as well as becoming a member of the Giovani nel Mondo Association, and taking an English Language Test. There is a fee of 250 EUR for each delegate. 100 scholarships are also available.

February February 1: Human Rights Essay Award Academy on Human Rights and Humanitarian Law is accepting essay submissions for its Human Rights Essay Award 2016. Participants must choose any subject related to the substantive law relevant to the field, including international human rights law, international humanitarian law and international criminal law. The essay must be written in English or Spanish. Candidates who hold a law degree and have demonstrated experience or interest in international human rights law are invited to apply.

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SUN’s online application form, attaching a full CV, a statement of purpose and a brief summary of a human rights related case they have been involved in. The tuition fee is 300 EUR. February 18: International Civil Aviation Organisation Internships

The International Civil Aviation Organisation is offering 5 internships at the Air Transport Bureau in Montreal. The interns will support the work programme related to economic policy and regulation of air transport, including the organisation of air transport related events. Postgraduate students or recent graduates


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with a second-level university degree or higher in a field of study related to economics, law, commerce or public administration can apply. Fluency in English is also required. Applicants must fill the online form and send a recommendation letter from their educational institution. April April 1: 4th International Law Congress of Youth

have a bachelor’s degree in law, economics, finance, or business as well as be fluent in English and French or German. Interns will be paid EUR 1,000 per month, as well as receive refunding for transport. Applications should be sent as soon as possible. Internship at the United Nations Office on Drugs and Crime The United Nations Office on Drugs and Crime selects unpaid interns on an ad hoc basis. The goal of the Programme is to offer students from different academic backgrounds a practical experience through work assignments within the international environment of the UN. In order to apply, students must be enrolled in a graduate or postgraduate university and be available for a minimum of two months. Applicants must also be fluent in at least one of the working languages of the United Nations. The internship will take place in Vienna.

The International Law Congress of Youth 2016 will be held in Istanbul, Turkey from April 21 to 22, 2016. All students are invited to attend and submit individual papers, media practice contributions and posters, sharing their ideas on the topics of Rights of Refugees, International Migration Law, Nationality, Globalisation and Industrialisation, The Development of Cultural, National and Global Identifications, Sustainable Development. Applicants must fill in the registration form and submit their papers along with a 250 Internship at the ICC Sales Administration words individual abstract to ilcy@maltepe.edu.tr. The selected papers will be announced on April 8, 2016. The Sales Administration unit offers the opportunity to students willing to complement their studies with On-going opportunities a contact with the professional world to acquire a practical experience in an international organisation. Legal Fellowship with Minority Rights As Sales Administration Interns, students will have Group the opportunity to work across several departments Minority Rights Group International is offering a fel- (Training and Conferences, Publications, and the Inlowship with its 2016-2017 Legal Cases Programme, stitute of World Business Law). focusing on strategic litigation on minority rights The applicants must undertake the application proand indigenous issues. The fellowship will last for a cess two or three months in advance. period of 12 months. The Fellow will be responsible for undertaking research on international law related Internships at the Organisation for Secuto minority rights, as well as assisting with on-going rity and Cooperation in Europe cases. Law graduates with strong research skills, a good understanding of electronic legal databases and The OSCE is offering unpaid internships from one to experience conducting human rights research in the six months to young people interested in working in field are invited to apply. MRG positions remain open the organisation’s sphere of interest. Interns can work in one of their offices in Viena, Warsaw, Prague or the to applicants until they have been filled. Hague, as well as with the OSCE’s missions in AlbaInternship at ISS Brussels nia, Armenia, Bosnia & Herzegovina, Croatia, Kosovo, Serbia, Montenegro, Ukraine. Candidates must ISS Brussels is looking for corporate governance re- be in their last year of studies, or fresh graduates, and search interns for the spring of 2016. For the posi- must speak English fluently. The age limit is 30. tion of Custom Research Analyst, interns will assist in providing vote recommendations regarding client More opportunities can be found on www.lawyr.it, in specific guidelines for shareholder meetings of global the Opportunities rubric. companies in the client’s portfolio. Applicants should By Georgiana Caramihai

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DOMESTIC FOCUS The Romanian legislation for environment. What has to be done?

Introduction

According to the Emergency Ordinance 195/2005 concerning the protection of the environment, by sustainable development we generally mean a development which corresponds with the necessities of the present, without compromising the possibility of future generations to satisfy their own needs. According to the National Sustainable Development Strategy Romania 2013(starting year)–2020–2030, the theory of the concept can be realised through public policies aimed at restoring and maintaining rational harmony, on the long run, between the economic development and the integration of the environment into forms that are understandable and acceptable for the majority of the society.

The geographical environment, the natural framework of existence and historical evolution, has always been a support and an influential factor in the socioeconomic field, putting its mark on the evolution of Cătălin Pop social sciences, and thus on the legal system as well. Being one of the most significant factors in determining laws - a material source of law (Boboş, Buzdugan & Rebreanu, 2010), the circumstances and relevant problems which it 1. The problems and the gaps raises are becoming a subject of day by day rising interest in our society. The situation of environment-related legislation in Romania is characterised by an absence of concrete The aim of this article is to present a different point of regulations, from the highest to the lowest level of view upon the increasing necessity of concrete legenactment. The result is a lack of information when islative intervention into the sphere of environmenit comes to how the population and specific authorital issues, the importance of the scientific funding ties are supposed to act. Take for example the Emerof legislation, technical regulations, and the plans gency Ordinance 57/2007 on the regime of protectregarding the prevention of and the fight against ed natural areas, conservation of natural habitats, environmental problems. Furthermore, the current wild flora and fauna, and the Emergency Ordinance paper intends to reflect on the relevance that a bet195/2005 regarding environmental protection. Arter cohabitation with the geographical environment ticle 1 of the first E.O. states that its purpose is to has the consequence of a sustainable development. guarantee the conservation and the sustainable use of natural heritage, a major objective of public inEnvironmental law is one of the newest branches of terest and fundamental component of the national the legal system in Romania, regulating – by means strategy for sustainable development. Moving on of law – the protection of the environment, with to the second one, the E.O. 195/2005 declares in its regards to the consequences of human activity. In first article that the purpose of the ordinance is to the framework of this new branch of law, ‘sustainset an ensemble of legal regulations on environmenable development’ should be in the foreground. tal protection, a major objective of public interest, 18


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based on the principles and strategic elements that lead to sustainable development. It can be observed that the actual legislation only guarantees rights and obligations, establishes typologies, aims, but there is no concretization of what is the plan to be put into practice, so it cannot really be efficient. To emphasise the lack of efficiency in preventing and combating actions against environmental problems, the case of the Protocol of Kyoto can be brought into the scope of the discussion, through which signing countries have pledged to reduce greenhouse gas emission for the next two decades. An international monitoring coalition – the Climate Action Tracker – has made a graph showing the actions taken by the governments to limit global warming. Romania and other EU member states were placed in the ‘Insufficient’ category, implying that the actual policy of Romania to fight against greenhouse gas effects is not developed and efficient enough. 2. Changing the perspective on the issues Some international conventions have been ratified in the form of laws (for instance, see Law 86/2000, which ratified the Aarhus Convention on June 25, 1998) which establish that, in the scope of protecting the right of any person, from current or future generations, of living in suitable environment, every citizen must be granted the right to participate in public decision-making processes, as well as the right to access to information and justice in environmental problems.

appear somehow necessary that this liberty shall be limited or ‘coordinated’ by the state, so this way society’s ‘boredom’ will become the future one’s greatest weight? Maybe, in some cases, thinking about the disastrous short-term consequences of the natural and anthropic hazards, the involving and the participation of the citizen will not be enough. Sometimes, overriding or limiting some of the basic rights of the contemporary individual – such as the ownership right – the law could discard of the free will of the people and concentrate on the common welfare and future. What is after all more important and closer to the interest of the public: the freedom of an individual to build houses where one pleases, for example, on the riverside; or the prevention of a possible damage and a state-wide intervention to save those whose homes have been flooded, through banning the building of some apartments in floodable zones, ignoring, in a way, the right of the land-owner? 3. What can be done? To this, from a legislative point of view, there are basically two answers. First, technical regulations, action plans, concrete strategy and programs have to be implemented, with the intention of directing citizens and authorities concerning how, where and when to act. In order to achieve efficiency, these measures must not be vague, abstract, with complicated texts, thus being understandable for the public in general. The works that exist regarding environment are of vast number and type, covering problems related to all elements of the environment, so these have to be examined and studied. The concrete solutions brought up by these, have to be extremely well transported transposed into the legal system.

But can a simple guarantee of access to information be considered enough? Whereas interest regarding actual environmental problems is continuously growing, would there be a need for a forced ‘taxation’ of information? The liberty of every individual to act as they wish has to be respected. However, due to the fact that the problems regarding the environment are getting delicate and affect future Second, the examples offered by the experience of generations to an ever-growing extent, doesn’t it other countries could also be feasible solutions. 19


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DOMESTIC FOCUS There are several EU member states that Romania can take as example. An eloquent instance for the efficient and well-thought implication of a country’s legislation in the field of environment is Germany. In the 2000s, the law of reusable energy, which started from the ‘Energiewende’ (Energy transition), was passed. The crucial principle of the project was that producers of renewable electricity have the right to feed the network, and utilising companies have to pay them a ‘feeding fee’. The German law was passed on the basis of this idea: a simple citizen would buy and use a renewable energy system and the surplus of energy would be placed in the national or regional network. For this extra energy, the individual would get money based on the quantity he gave. The financial advantage of this idea and the fact that profitability could be realised, made the cost of solar and wind power to lower and become competitive in many regions with the cost of energy based on fossil fuels (Kunzig, 2015).

can become operational (Ghereş, Şerban & Rebreanu, 2010). Based on the statements made above, it cannot be overemphasised that it is essential to create environmental consciousness. However, this cannot be achieved without simple, free and guaranteed access to decision-making. Bearing in mind the sensitivity of the problems and the significant negative impact on future generations, I believe that it is necessary to impose the forcing of the information’s reception through diverse ways for every individual. Conclusion

All in all it can be stated that Romania could find solutions for the question ‘what has to be done’ by concretizing certain laws for its own geographical characteristics. The analysis of other legislations concerning more or less unforeseen situations in other countries (e.g. global warming, natural catastrophes) should help develop strategies, as well as 4. Is there anything else that can be done? examining the result of the implementation of laws aimed at preventing and/or stopping such events in Along with the necessity to elaborate legislation on our country. a scientific basis, it is also needed to raise awareness concerning the level of pollution, and create envi- I believe that such lead to a better cohabitation of ronmental consciousness. We can realise that the the socio-economic field with other geographic domere existence of a well-constructed legislation is mains (especially the biosphere), contributing to not enough. Awareness needs to be raised among the accomplishment of sustainable development. the members of the population. Informing citizens The result will be a more advanced level of ecoabout environmental problems and the possible so- nomic and social development, and, consequently, lutions is the first step in raising consciousness in it would contribute to the evolution of our legal sysconnection with the impediments that may occur tem. For all that, what could really disquiet us fordue to pollution. Ecological education starts with wards is how much time will pass until such ideas being well-informed. take form. Then, the citizen needs to become directly involved in solving the problems, through participation in the legislative process, in formulating and applying decisions. This is the only way that public opinion 20

By Cătălin Pop


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The refugee crisis: a Bulgarian perspective

Lidia Peneva

‘We have full reason to claim that migration has become a major feature of international life’. UN Secretary General Kofi Annan /Report by the UN Secretary General, Presented before the UN General Assembly in 2006

1. The main issue and aim of the article

legal definition under Article 1 of the Convention is the accepted meaning of the notion ‘refugee’, namely that a refugee is any natural person leaving their country of origin out of necessity, no other choice having been presented usually. This person’s chief aim is to seek protection, peace, a place to live with no threats. In the Republic of Bulgaria, under the regulatory framework, four types of protection are granted to refugees: refugee status, asylum, humanitarian status, and temporary protection. To receive a refugee status the person has to request the reception of this status as soon as possible and of their own will. Whether the said person has entered the territory of the Republic of Bulgaria legally or illegally is irrelevant to the reception of the refugee status.

These words sparked some thoughts regarding the refugees and the problems related to them – their migration from one country to another, their fight for a better and more peaceful way of life. In this 2. The legal framework adopted by Bulgaria article I will present the refugees’ position and the actions and powers which the Republic of Bulgaria I mentioned above that the refugee problem is not has in connection to them. new and in this respect I want to point out that in 1993 the Republic of Bulgaria ratified the UN’s GeThe refugee waves, the constant and tireless move- neva Convention relating to the status of refugees of ment of migration flows are not a new phenomenon July 28, 1951 and the New York protocol amending it for the world, but now the refugee problem is la- in 1967 with which the country acknowledged refubelled as a leading one in the politics of numerous gees’ right to protection – natural persons who, due European countries. To a certain extent this is un- to a valid reason, fear or prosecution, were forced derstandable due to the large migration masses that to leave their country of origin, and do not wish to cause chaos and sometimes disorder in the receiv- avail themselves of the protection offered. Conseing country, but let us, above all, not turn a blind eye quently, as a country that has ratified and adopted to these people’s fight and search for peace and let us the regulations of the UN’s Geneva Convention reshow empathy to their, I would say, strenuous fate. lating to the status of refugees of 1951, the Republic of Bulgaria is a country which is to adhere to these Firstly, speaking of these refugee flows, it follows regulations and fully respect the rights of refugees, that I should clarify the nature of the notion ‘refu- among which is the right to religion, legal grounds gee’. In the Republic of Bulgaria, as a country hav- in Article 4 of the Geneva Convention, the right to ing accepted the United Nation’s (UN) 1951 Geneva personal status under Article 12 of the Geneva ConConvention relating to the status of refugees, the vention, the right to access to courts under Article

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DOMESTIC FOCUS 16 of the Geneva Convention, the right to employ- ers seeking or having acquired protection, the status ment under Chapter 3 of the Geneva Convention, acquisition process, and so on. This law consideras well as a number of other rights. ably eases the solutions of a number of problems related to refugees. Naturally, the Republic of Bulgaria applies the socalled national regime (Article 26, line 2 Constitu- 3. Illegal border crossing as a problem tion Of The Republic Of Bulgaria), to all foreigners on the territory of the country, namely that any In the remainder of my article I want to tackle a maforeigner entering the country’s territory, regardless jor current problem connected with refugees – their of the way in which this was done - legally or il- illegal crossing of borders. I decided to explore the legally, as a subject of civil law, is to be given the problem, because we have witnessed global migrasame rights as the Bulgarian citizens. For me, this tion movements recently, which are followed by is quite legitimate as otherwise we would fall within numerous tragic events, precisely because of illegal the scope of discrimination, which is unacceptable crossing of state borders. This illegal crossing as well considering both Article 3 of the Geneva Conven- as the so-called human smuggling is the root of a tion and Article 14 of the European Convention on number of incidents with fatal outcomes. Nearly Human Rights. every day people are informed through means of mass communication of hundreds of drowned miAfter the Republic of Bulgaria’s entering the Euro- grants who tried to cross a border by water or who pean Union in 2007, another regulatory basis relat- died as a result of being hunted by border police. To ed to refugees can also be seen – as a member-state, me all this seems a very grey picture whose protagoBulgaria endorses the idea presented in Article 61 nists are people seeking peace for their families and of the Treaty establishing the European Community children who instead fall victim to smugglers giving (Article 67 of the Treaty on the Functioning of the all their money away with the sole hope of receiving European Union) for the gradual creation of an area the so yearned-for peace which, regrettably, they do of freedom and security. To my mind, this is an in- not receive or live to see in many cases. This moticredible opportunity for providing refugee groups vated me to orientate myself in the direction of this with a much calmer and safer living environment as problem as well. the percentage of children among them is considerable. 4. Bulgarian Criminal Code regulations on crossing state borders without due authorisation Everything mentioned so far is the basis on which I shall present my grounded belief that the Republic The armed conflict in Syria as well as the aftermath of Bulgaria is a country that would provide timely of its onset necessitates a number of changes not protection and support, as well as equal rights for only in the way of life of an entire people, but also each refugee in his/her search for a better life. their consolidation by different countries. In this respect, a number of issues arise which deal with the The asylum and refugees law existing in Bulgaria, in regulatory framework of many of these European effect as of December 1, 2002, aims to establish the countries that accept Syrian refugees. Such is also main positions regarding refugees, like the types of the issue of illegal border crossing into the accepting special protection, the rights and duties of foreign- state done by refugees or as I would call them, peo-

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ple desperately seeking escape and peace for their families and children. The Republic of Bulgaria is a country that accepted a number of refugees whom the state appropriately accommodated in the refugee centres fitted for that purpose and gave refugee status to many of these people. However, the Republic of Bulgaria also acts as transitional territory for these migrants, whose ultimate aim is a bigger and more cosmopolitan European country. This, of course, should not become a reason for finding fault in the choice of these desperate people as they strive for a better life for their families and it is likely that such a better-developed country can provide it. The problem with Syrian immigrants, which affects not only the Republic of Bulgaria, but other countries as well, is illegal border crossing. With a view to the high level of public danger faced by those who cross state borders in this way and the fact that such a deed represents a crime, I believe reviewing this problem is of paramount importance. In the Republic of Bulgaria, in accordance with our criminal legislation, crossing the state border without due authorisation is an incriminating act, the performance of which incurs a penalty specified by law. In this respect, it follows that I familiarise the readers with the regulatory framework of the Republic of Bulgaria. In the Penal Code, Chapter VIII, Section I: Crimes Against the Governmental Order, under Article 279, line 1, an act constituting entering or leaving the country’s borders without due authorisation by the competent authorities is defined as incriminating and punishable by law. The legislator, in creating this regulation, has directed its application to a wide range of individuals. In this sense there is no prerequisite for the one crossing the state border of the Republic of Bulgaria illegally to be a citizen of another country, thus even if a Bulgarian citizen commits this transgression, he/she would incur the sanction specified by the Bulgarian legislator.

Noteworthy is also the way in which this crime can be committed – by entering the state without due authorisation, meaning without the necessary for this purpose international passport, which also certifies the holder’s identity. On the other hand, looking at the contents of the regulations, it can be concluded that in the cases when the required documents are present, if the state border crossing is not done at the specified places – Border Checkpoints which in the Republic of Bulgaria are located in regulated places where the country borders Romania, Serbia, the Republic of Macedonia, Greece and Turkey, the act is incriminating nonetheless. However, despite this, I mentioned a few times above that no matter whether a refugee enters the territory of the Republic of Bulgaria legally or illegally, he/she can request protection in the four forms the state offers. Conclusion The refugee issue however cannot be solved merely by the provision of a certain number of rights or status. The matter about the integration of these people and their families into society is what arises. The foundations of the Common policy regarding integration of refugees and migrants were laid with the adoption of the Hague programme of the European Union Presidency. I personally believe that the integration, acceptance, inclusion, help and support to a person in need, regardless of his/her religious beliefs, race, sex, nationality or other aspects, make us better, because, above all, we are all people and each of us has a heart that can give hope. I would like to encourage everyone to be more tolerant and open-minded towards refugees and everybody in need of help and support. I sincerely hope my article can contribute to a better outcome of the migrant problem and make a wider range of individuals think about it and show tolerance and fairness.

By Lidia Peneva

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DOMESTIC FOCUS Bosnia: Twenty Years of Dayton’s Bitter Legacy 1. A background sight In the time of commemorating the 20th anniversary of the most successful project of the international powers, the Dayton Peace Accords, I am carefully examining the current situation in Bosnia and Herzegovina. Even today, many Lejla Hodzic believe that the inefficiency of the institutional set up reflects in the best light, the consequences of the artificially imposed peace. What has Dayton brought to us and will the political willingness for constitutional reforms ever come? Being able to walk through Sarajevo today, for many people who experienced the longest siege in contemporary time, the city can seem as a treasure. For those same people, not being able to walk through their city during the siege was hardly comprehensible. It was not just an armed conflict that happened in this city and in this country, but a psychological war which shattered the feeling of being human. Even though many people appreciate the fact that they can walk freely through their city, without being in danger of snipers from the surrounding hills and mountains, the freedom and serenity of the steps we take every day is disputable. Twenty years after the war, many people understand that peace does not come with the ceasefire, but with strong commitments to reconcile the differences that used to tear us apart.

Agreement approaches, trying to find crumbs of progress to blindfold the nation becomes the main challenge of Bosnia’s politicians. While the scarred post-conflict society struggles in the false sense of peace and security, foreign diplomats reflect on the successful project of imposed and artificial institutional set-up. In the same time, Bosnia’s politicians softly and quietly welcome the referendum which puts the country’s sovereignty and unity in question. 2. The Dayton Peace Agreement – a unique treaty Dayton Peace agreement is one of the most important, ambitious, and subtly utopian accomplishments of the diplomatic forces in the contemporary age. The goal of the agreement, which in the mainstream media overcomes the underlying plan for the small country, was to bring an end to the armed conflict and establish permanent peace. By looking at the state itself, we can see the irrational ambitions of the agreement and the success of the externally imposed, highly loose sense of peace, and freedom. The name of the agreement itself is very ambiguous and confusing even in the country. While it is a result of peace negotiations, it is more a state-building agreement, rather than a peace agreement.

‘The Dayton peace agreement was unlike any other peace treaty of modern times, not merely because it was imposed by powers formally external to the conflict, but because of the far-reaching powers given to international actors, which extended well beyond military matters to cover the most basic asAs the 20th anniversary of the Dayton Peace pects of government and state’ (Chandler, 2006). 24


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The text of the agreement makes more references to rebuilding a fractured society, pushing the country from the reminiscences of socialist state into an unknown, Western-like state structure, than to reconciliation and peace. Even though, at first sight, the plan itself seems carefully designed, it was a stride for which Bosnian war-torn society was clearly not ready.

war in Bosnia and Herzegovina’ (OHR Introduction, 2012). Even though its role is supervising, the presence of the Representative and his powers could be understood as putting in doubt the sovereignty of the country. On the other hand, there is a praise of his presence among the people, because he is highly authoritative among the politicians in the country.

The agreement’s stipulations

Strong international impact, expensive government structure, and inability of the state to govern its own affairs in certain areas are the least controversial flaws of the imposed state structure of the Dayton Peace Accords. In the past few years, there was a strong push for amending the constitution which the European Court of Human Rights (ECtHR) found discriminating, in the case of Sejdić Finci v BiH, 2009. ‘The applicants complained of their ineligibility to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina on the ground of their Roma and Jewish origin’ (Case of Sejdić Finci v Bosnia and Herzegovina, 27996/06 34836/06, 2009, P 3). It was found that the absence of minority representatives during the peace negotiations can be justified by the urgency of ceasefire, but the Court also found that “the maintenance of the system in anyevent does not satisfy the requirement of proportionality” (Case of Sejdić Finci v Bosnia and Herzegovina, 27996/06 34836/06, 2009, P 35). However, the power of amending the Constitution lies with the State Parliament, whose failure to adopt the amendments brought to end fruitless efforts to make the operating of institutions less ethnic-focused.

The agreement (General Framework Agreement for Peace in BiH 1995) is supplemented with eleven Annexes, whose content is the bedrock of state functioning, among which is the state constitution, embodied in fourth Annex. Annex 2 of the Agreement provides the boundary line between the two entities, Federation of BiH and Republika Srpska (The General Framework Agreement Annex 2, Art. 1). This is highly artificial and has been convenient for the nationalistic rhetoric of the politicians coming from the two entities. The boundary line was set on the basis of ethnic divisions between Bosnian Serbs and Bosnian Muslims, which have put their arms down twenty years ago, but continue the rhetoric of hatred and intolerance. The boundary line is just a part of the highly complex, costly, and inefficient structure which was supposed to be changed as part of the Constitutional reforms which started in 2005. ‘International mediators had hoped to kickstart constitutional changes and secure a deal on the remaining criteria necessary for the Office of the High Representative in Bosnia and Herzegovina to be closed’ (Bieber, 2010). Endeavours of the external powers to strengthen their impact in BiH are visible through the institution of the Office of the High Representative (OHR), which is an ‘ad hoc international institution responsible for overseeing implementation of civilian aspects of the Peace Agreement ending the

3. Dayton and politics in Bosnia In the time of remembering the Dayton, many people of Bosnia despise the agreement as an internationally designed trap which prevents any progress and development and emphasises ethnic 25


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DOMESTIC FOCUS divisions. We could say that the ethnic divisions are not as strong as they are pointed out. The floods that struck the country in May 2014, showed the unity and collective effort to help those in need, regardless of the artificial entity line between them. In the Republika Srpska entity (‘RS’), Dayton is very important, as it is the constituent of the entity itself. Politicians of RS glorify the Dayton Peace Agreement for establishing RS, as if they do not know that the territory of RS existed long time before the agreement. If the context was not as such, and if BiH did not depend on the mercy of the external powers, RS would not exist, at least not in the form as we know it today. Expecting the diplomats around the world to emphasise the success of Dayton in the upcoming anniversary, we must underline the context in which Dayton is used in the present in Bosnia. It is used as leverage of Republika Srpska for any action their leadership takes, and which in many cases questions at least, the existence of BiH as such. Dayton has ceased to be the saviour of Bosnia’s people a long time ago. It has become instead a merciless pitfall from which the state is desperately trying, and in the same time failing, to get out.

of the Serb population by the state institutions, politicians in the entity consider the referendum necessary and vital for interests of its people. One does not have to be an expert in law to understand the absurdness of the question, which undoubtedly puts a shadow on the sovereignty of Bosnia and Herzegovina. It questions the validity of its institutions and tends to limit their political power to one ethnicity only, calling for the decentralized government to part forever. Key political figures in RS often expressed their nostalgia for the ‘genuine’ Dayton. What is this ‘genuine’ Dayton? Is it what would divide the country in two, purporting a highly decentralized government structure and allowing the country’s existence only within the outline tailored by the external forces? Is that the Dayton whose envisaged viable state structure has put the country before the greatest challenge after the war? The so called ‘genuine’ Dayton turned the country into an adventurous political playground, in which the politicians’ key task is to make sure a democratic and prosperous vision of our country disappears in favour of more important, vital national interests. A challenge is there, and it is a chance for courageous politicians of Bosnia to take the issue seriously and show eagerness in deIn the Serb-dominated entity, a referendum on the fending what is left of the freckled sovereignty of authority of BiH institutions has been announced the Balkan beauty. and has become the new pastime of reckless politicians in the country. ‘The referendum question is: 4. Bosnia and Herzegovina nowadays Do you support the unconstitutional and unauthorized imposition of law of the High Representative of ‘Sarajevo was the first European city to use a tramthe international community in Bosnia and Herze- way system in 1885. At the time, the trams were govina, particularly the imposed laws on the Court pulled by horses or mules’ (CoE, Bosnia and Herand the Prosecutor’s Office and the implementation zegovina). As an important symbol of the city, of their decisions on the territory of the Republika observing the trams in Sarajevo today gives us an Srpska?’ (Minutes From the 10th Special Session impression of what the country has turned into. of the National Assembly of RS P 2, 3). The ques- Some of the trams from the time of Yugoslavia are tion itself has been disputed as biased the least. still operating, while most of them are a generous Basing its arguments on alleged unfair treatment gift of other countries. This is not only the case 26


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with public transport, but with other segments of this city. Dayton is a creation of international powers, but many people feel that the country has become their creation as well. Due to this, younger generations have lost the sense of belonging, while the older generations feel the nostalgia for the socialist Yugoslavia. The public transport reflects the image of the country, which has become a marionette of international powers, which are present in almost all segments of everyday life. Even people are assured political decisions and moves are made only upon approval of external powers, but the question is which of the powers should be followed. For such a small territory, there are too many international players. 5. What is next for BiH? It is true that BiH is struggling in trying to find a path towards progress. As all other Western Balkans countries which chose EU integration, BiH sees its future in the European family. Nevertheless, the process is often stalled due to previously mentioned issues and complex government structure imposed by Dayton. It is not impossible for Bosnia to function under Dayton, but changes must be made. Dayton has been often mentioned in the political speech and used as mechanism for raising ethnic tensions. It would be better if political speech would be limited, because the law in BiH does not impose limitations on speech of public figures. Considering the sensibility of topics in political sphere, such law would make the political scene fair. Politicians should maximize their efforts in negotiating a better solution for structure and organization of the state, bearing in mind that all sides will have to leave irrational and nationalistic aspirations aside, at the benefit of all citizens of Bosnia. Only by having a secular society, where rights and freedoms of all are respected, could our country prosper. Considering our aspirations to become a member of the EU, member-

ship could be a strong motivation for politicians to maximise their efforts in negotiating. After all, the accession process itself would eventually serve all of these questions upon our authorities. It would bring negotiations which would follow in political, economic and other reforms, which are desperately needed for our country to continue functioning. If this is where we see ourselves in the future, we should employ strong efforts to become a member of the European Union. Conclusion Twenty years after, Dayton is better at preserving the inefficient government structure, than at preserving peace, sustainability, and freedom. While many may argue that it did bring an end to a bloody conflict, other can, with justification, say that it gave life to an oppressive nationalistic sentiment which wrapped the country. In such environment, everyone seeking a normal life and opportunity for progress leaves Bosnia, without much motivation to come back. When left to mercy of the political unwillingness, people start wondering what would have happened without Dayton. Would the conflict lead to a clear victor and would it be easier for the state to govern its own internal affairs? The opinion of many may be surprising, but we are not here today to ask the questions which will remain unanswered. Bosnia and Herzegovina, for many European leaders, is at a crossroad. The options the state has are not clear, not even to most experienced legal professionals, constitutional lawyers and scholars, and because after all, this government structure is part of the piece of art called, Dayton.

By Lejla Hodzic

This article expresses solely the author’s personal opinion, and it should under no circumstances be associated with the principles or views of the Editorial team. 27


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DOMESTIC FOCUS Hate Crimes – Hungary’s Twisted Use of the Relevant Law

No one would think that

the measures taken to promote equal rights and securing equal opportunities can be turned around and cause even more disadvantages to underprivileged groups of society. However, the decisions based on Hungary’s current law on Emma Varnagy hate crimes (Section 216, Act C of 2012 on the Criminal Code) have proven the contrary. Ever since its introduction in 1996, despite some progressive amendments, the relevant section has never been used to convict perpetrators for actually committing violence against a member of the community (Ivany, 2012), the title by which hate crime regulations appear in criminal codes. Hate crimes mean extreme threat to fundamental human rights such as the right to safety, bodily integrity and even to the right to privacy. They are also considered to be the most extreme violations of the right to human dignity and the principle of equality, because they have both direct and symbolic impacts on minority groups and on the society as a whole, as well (Jernov, 2009). Furthermore, their psychological effect is much stronger than in the case of other, non-hate-motivated assaults, not only causing harm to the individual victim, but potentially intimidating the entire group whose member has been attacked, thus generating, sustaining or even aggravating social distance or conflicts between minority groups and the majority of the society (Coleridge, 2014).

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Hate crime regulations therefore have a dual function and impose bigger penalties than in the basic cases of assault. Their primary purpose is to increase the protection of vulnerable groups, and also to send a strong message to society that it shall not tolerate intolerance (Perry, 2014). There are two main problems with the current standards of identifying and treating hate crimes by legal means in Hungary. The first is the tremendous extent of institutional racism and the lack of professional preparedness of the police compared to international standards. The second problem is a part of the relevant section in the Criminal Code, which allows for a problematic interpretation. In this essay I will focus mainly on the latter. There are two approaches to the function of hate crime laws in international legal practice (Jovanovic, 2013). One of these presents them as measures to protect minorities, which compensate for the disadvantaged, underprivileged status of the victim groups in the society. To help the official proceedings there is usually a detailed list of the vulnerable groups in the norm text, or a supplementary comment to the relevant section of the criminal code. The other standpoint emphasises the identity-protective function of such laws. This point of view indicates that only the adverse biases as motives justify the more severe legal steps, namely a highly aggravated imprisonment. In order to decide whether the perpetrator had committed the crime on discriminatory grounds, the court assesses the ‘state of mind accompanying the act’ (Quill, 2011). If any circumstances indicate adverse biases – for


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example the time or place of the assault has a symbolic significance, or the offender has records of previous prejudiced manifestations – it can easily be differentiated from a crime committed on impulse. Section 216 of the Hungarian Criminal Code regulates Violence Against a Member of the Community. Under it, any person who displays an apparently anti-social behavior against others for being part, whether in fact or under presumption, of a national, ethnic, racial or religious group, or of a certain social group, in particular on the grounds of disability, gender identity or sexual orientation, of aiming to cause panic or to frighten others, is guilty of a felony punishable by imprisonment not exceeding three years. The current judicial practice in Hungary accepts that the relevant section is primarily intended to protect minorities. In the first part of the text of Section 216, there is a substantive list of the protected identities, including the mention of sexual orientation and gender identity, which is a positive result of a recent amendment of the law in 2012. The ‘certain social groups’ category provides a degree of liberty to the presiding judge to apply the law to the prevailing social and political state of the society, but at the same time is the basis of a very problematic interpretation. As we can see, both of the earlier mentioned international approaches appear in the text. However, the Hungarian legal practice does not follow either of them consistently, but applies the law on hate crimes in a particular way. The best approach to understand the twisted logic lying behind the way the Hungarian legal system applies this section is to examine the purpose of the law and the characteristics that have or could have fallen into the ‘certain social groups’ category. Even though the preceding judge has a certain

degree of liberty in applying the law so that it reflects upon the current social context, it is a common practice that the protected characteristics are listed in detail in either the relevant section itself or other legal references, so any attributes on the list may be taken into consideration under the ‘other’ category. In Hungary, the Equal Treatment Act of 2003 should provide guidance with a twenty-item, open-ended list, which is generally referenced in discrimination cases.. These attributes do not always constitute a minority group but are most likely subjects to oppression of some sort. The serious moral dilemma lies in the correct application of the specially designed paragraph. More specifically in the question whether it is to support anyone who has been assaulted because of certain characteristic, regardless of its underlying content and social context, or it is to differentiate between cases of systematic oppression and other sorts of biases. To me it seems that Hungarian judicial practice tends to be ignorant both in regard of the social context and the systematic or other nature of the inducement. ‘In this case the defendants by their actions described in the statutory definition – that is, attacking Jobbik [a Hungarian radical nationalist party] sympathizers because of their identification in a narrower sense as a certain group of society (i.e. members of a specific political party) and generally because of their Hungarian nationality – have differentiated themselves from the Hungarian majority, despite their Hungarian citizenship’ (Fk. 1188/2011/217). Based on these grounds, eight Romani offenders were convicted and sentenced for committing hate crime in late 2013. It is not the only case where the current law was used against members of an apparent vulnerable group, and there are plenty of examples of obvious hate crime cases where law enforcement remained passive.

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DOMESTIC FOCUS The problem with applying hate crime laws to protect members and sympathisers of a radical right wing party with the impression that political views should be under protection is dual.

fectively, worthy of its original purpose, a series of measures can be taken. There are two solutions suggested by professional organizations. Either the category in question should be removed from the text of the regulation, or a very specific, exOf course, there are several other laws designed clusive list of the identities to be under increased to protect freedom of expression, and other fun- protection should be included, in order to outline damental rights related to bearing a certain politi- a very clear rule for procedures. cal view. There are also a number of other means to punish whoever violates these, for example the Most importantly, however, the detection of hate section on hate speech is just as strict as the law crimes prior to court proceedings should be imon hate crimes (Section 332. Act C of 2012 on the proved. To do so investigation protocols should Criminal Code). The huge difference is whether comply with international standards, including we encourage someone in practicing their op- above all efficient service trainings for the police pressed identity, or providing everyone with the on the topic of hate crimes. General awareness right to safety. raising in the subject would also be beneficial, eventually forcing the authorities to apply approProtection of political views under hate crime leg- priate procedure, which represents the original islation suggests that this extremely exclusionary purpose of the law. and hateful belief system is acceptable and should be protected as an important attribute of a per- Hungary’s example of interpreting hate crime son’s identity. The message that the protection of legislation shall remind both legal practitioners extremists conveys will cause even more fear and and civil society actors to think carefully about intimidation in minority groups. Therefore, both the social groups, or more abstractly social valprimary functions of such laws – namely the in- ues to promote and support. I strongly believe creased protection of vulnerable groups, and the this should be the protection of human dignity curbing of discriminatory practices in society – in a democratic society. This requires good faith fail to be effective. in promoting equal rights and securing equal opportunities.  To avoid such interpretations that lead to the malfunction of the law in the future, and to use it ef- By Emma Varnagy

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Joint Authorship in the Case of Unintentional Crimes: When Reality Demands a Solution to Controversy

The beauty of law, as a

ered to be the author of robbery. If a person only threatens the victim whereas another one takes the concept, will always reside goods in the victim’s possession, both are considin the fact that each legal ered joint authors of robbery (Radu, 2013, p. 101). text or provision is subject to interpretation. The sole Why is it so important to establish penal participapurpose of interpretation tion? The process is essential to a correct enforceis to offer the best possible ment of the law based on finding out the truth solution to a real situation about the crimes committed. Moreover, it has an by applying that certain effect upon the individualization of the punishlaw/text. However, when ment because there are numerous cases in which Vlad Bota interpretation fails to pro- either the accomplice or the abettor get harsher vide such a solution, espe- sentences than the authors because of their sigcially in the area of criminal law, a specific and ex- nificant contribution to the result of the crime. For clusive meaning has to be provided and enforced example, if the author is a first offender whereas the abettor has a prior conviction, it is likely that identically in every situation. the abettor will get a harsher sentence considerThe purpose of the following article is to analyse ing the provisions of Article 74 of the Penal Code whether, under the current form of Article 46 of (Supreme Court of Romania, penal sentence the Romanian Penal Code, joint authorship can no.75/11.01.2008). be admitted in the case of involuntary crimes, and what are the possible consequences of admitting In order to establish participation, the facts and the existence of this form of criminal participa- the people involved need to undergo an analysis based on specific conditions. Further, I will anation. lyse the compatibility of the general conditions of To begin with, in order to consider a person as an penal participation with the joint authorship in author of a felony and punish him adequately, it the case of crimes that are not intentional but are must be certain that the person has committed an more of a reckless or a negligent nature. action that is illegal under the penal law, he had no justification for his act, he is guilty of the act, and First of all, an act which is punishable by law must his action is reprehensible. Whenever such an act be perpetrated. There can be no penal participais committed by two or more parties, the individu- tion without an unlawful act. The Romanian law als are considered to be joint principals or joint defines theft as ‘taking of another person’s propauthors of the same act, although the crime could erty without consent, in the purpose of self-enhave been successfully carried out by only one of richment’. If an individual takes a book from a them. For instance, if an individual threatens an- friend’s library without consent, being previously other person and takes her purse, he is consid- informed by his accomplice exactly where to find 31


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that rare book, both he and his accomplice will be convicted for theft, in different forms of participation. The author behaves in a similar way to what the law defines as theft. As the doctrine claims, without the correspondence between the action and the norm, there can be neither criminal liability nor any conviction for the participants (Streteanu, Nitu, 2014, p. 264). The same condition is necessary for unintentional acts also, in order to establish penal participation. Bearing in mind the previous distinction between intentional and involuntary crimes, the joint authors have to contribute in a substantial way to the result of the crime. In the case of negligent crimes, either the authors foresee the consequences of their behaviour and do not accept that they will occur, or though they should have foreseen the consequence of their action, they failed to do so. The parties involved in the commission or omission of the action must have a material contribution to the result of the crime. The most eloquent example is the case of traffic collisions. Consider the following hypothesis: one driver enters a one-way street driving on the wrong side of it while being under the influence of alcohol when another is driving his car the right way of the street but at an excessive speed. If, at some point, before the imminent collision of the cars, a blind pedestrian crosses the street, gets caught between the two colliding cars and dies, both drivers should be responsible for the death of the pedestrian. The reckless action of the two drivers caused the incident. However, if only one car was on the road, in the same situation, the driver might have avoided killing the pedestrian. The actions of multiple individuals caused the final result being of little importance if one of them had a more consistent contribution to the result than the other. It is easy to see that, from an objective point of view, more than two people can contribute to a result that is punishable by criminal law. I must underline here that the national courts have been, on multiple occasions, adamant in sanc-

tioning such acts (ArgeČ™ Tribunal, penal sentence no. 2567/1972; Alba Tribunal, penal sentence no. 128/1972). The subjective link between the participants is the most problematic condition to analyse when it comes to the existence of joint authorship. Without such a link, there is no participation, and the individuals will be convicted for different crimes. The punishment will be determined regardless of the impact that this type of bond can have upon a felony. It is, therefore, no surprise that some Romanian scholars dismiss the idea of joint authorship when talking about reckless crimes solely on the basis of the impossibility of determining a subjective link between the authors of such a crime (Bogdan, 2009, p. 76). The same author proposes an alternative solution for the situations where multiple culpable actions determine one harmful result considering the impossibility of forming a prior subjective link. Known as ‘material-complementary plurality’ in the Romanian doctrine, the concept defines the situation where the actions of two individuals cause one harmful effect, but without any link forming between them. Based on this concept, the authors can both be sanctioned for contributing, in a substantial way, to a result sanctioned by criminal law. They are not considered joint authors, but are sanctioned in a similar manner. Without neglecting the merits of this theory, I consider material-complementary plurality a viable solution only for the situations where establishing a subjective link between the authors is absolutely impossible, from an objective point of view. For instance, two people working in the same office, without knowing the one about the other, hate their supervisor and decide to kill him by poisoning using the same substance. Not being informed, each of them pours 30 ml into his coffee in the same day without seeing the other. It is proven that the respective substance can only pro31 33


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DOMESTIC FOCUS duce the death of a human being if it is ingested in diligence imposed by a legal text. This means that quantities larger than 50 ml. when a person acts in such a manner, he assumes the risk of a negative outcome that is punished by Based on the aforementioned concept, both will be penal law. I must add that being aware of the risky sanctioned as authors of murder. The same can be nature of a certain activity – throwing a beam applied in the case of reckless crimes. For instance, from a building, drinking before driving a car et al a person cleans his home by throwing objects out is exactly what justifies punishing this kind of acts. the window causing a haemorrhage for another I strongly believe that nobody can argue that when individual that was passing by. He is also left untwo people perform an activity that is risky by itconscious. If a neighbour living in the flat above self and they decide to increase that risk by actthe first person, throws other objects out the wining outside the legal frame imposed, even though dow that hit the person already unconscious and they do not anticipate the exact consequence, they causing another haemorrhage, apparently both at least assume that an illegal outcome might ocwill have committed separate crimes. On the other cur. Consequently, if two or more people assume hand, if that person dies because of the cumulated the same risk, they can only be held responsible effect of the two haemorrhages, they will be both together. Going back to the example with the consanctioned, based on the material-complementary struction workers, manipulating construction plurality, for involuntary manslaughter. These are materials high above the ground is an inherently situations where it is impossible to determine any risky activity, but when you decide to make your link between the authors. work easier by throwing them from that height, There are, however, countless others where the it is obvious that both participants have assumed link is not only present but, based on it, joint au- they might hurt someone but were both willing to thorship can be determined. The standard exam- take that risk. ple provided by the scholars is the following: two One last argument that can be made is that Article people throw a wooden beam from the top level of 46 of the Romanian Penal Code defines the joint a building because they did not want to carry it all authors as being the ones who commit the same the way down. The beam lands on a third person crime without any interference. The same article and kills him (Mitrache, Mitrache, 2003, p. 300). does not condition this form of participation by The main argument for joint authorship in this the form of culpability of the authors. When the type of cases is that the authors have a subjective legislator intended such conditions, they are menlink related to performing a determined action – tioned in the texts – e.g. Articles 47, 48 of the Penal throwing a beam, driving with double command Code – aiding and abetting can only be done by et al. It is of no importance if the authors foresee intent. the consequences of their actions because their link is strictly related to the common action. Be- There are two more conditions to be verified for ing able to predict the outcome and even wish it is the existence of joint authorship, but they are not specific to penal participation based on intent but relevant when discussing about reckless behavthat does not mean that it has to be present in the iour. The fact must be qualified as a felony at least case of reckless behaviour. for one of the participants. Lastly, the participation of multiple individuals must not be a requisite of a Recklessness consists of acting contrary to the 34


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specific criminal legal text (e.g. Article 367 of the authorship based on intent but I see no real imPenal Code) or being a natural form of commit- pediment why this could not be used when joint ting a felony (e.g. Article 198 of the Penal Code). authorship based on recklessness or negligence is manifestly related to a specific real case. Based on the previous analysis, one can only conclude that joint authorship is not only possible in To conclude, based on all the arguments and excase of reckless behaviour but it is necessary. amples, I consider that joint authorship regarding reckless crimes is more than just a subject for exApart from being a controversial subject in the Rotensive debate between scholars. It is a solid judimanian legal literature, joint authorship can have cial reality. When it comes to sanctioning defiant dire consequences upon the punishment estabculpable actions such as causing the death of more lished for the participants. In order to understand people because of gross negligence in administratthe importance of this institution, a recent tragedy ing a business, the practical side of joint authorfrom Romania must be taken into consideration. I ship is obvious. It is the legal and conceptual basis am talking here about the fire in club Colectiv (for for aggravating the responsibility of those found details, see www.reuters.com). Three men were guilty by a national court. associates in a limited liability company, having equal powers and responsibility. The company op- By Vlad Bota erated in the public entertainment sector providing venues for public indoor concerts. One of the obligations of the three associates was to guaranWould you like to do a Masters tee the security of the people who attended such abroad, but don’t know where? Do concerts. They constantly allowed access in such a venue for more people than the building could you need need funding? safely house, and moreover, they have used below the legal standards insulation when soundproofing the location. A fire broke out at such a concert and spread rapidly because of that low quality insulation, and the people could not get out fast enough, for the place was overcrowded. Around 60 people lost their life because of asphyxiation. A national court might find the three guilty of involuntary manslaughter of two or more people under Article 193 §2, §3 of the Penal Code. In my opinion, in such a case, in the eventuality of a conviction, the court could also give effect to the aggravating circumstance from Article 77 a) of the Penal Code, when a crime is committed by three or more persons together. Thus the court could add two more years to the sentence if the maximum penalty of Article 193 would not be enough given the severity of the crime. Traditionally, Article 77 a) is only applicable in the case of joint

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REFLECTIONS Clinical trials: a legal overview

Ever

since its occurrence, drug testing on human beings has been considered a “grey” ethical area. Self-evidently, for the benefit and progress of medical science, new drugs have to be tested thoroughly, so their results can be Angie Pantzardzidi determined and their counter-effects may be minimised.

1.1 An overview of clinical research – types and characteristics First of all, it is important to note that clinical research can be divided into two categories. On one hand, we can recognise the clinical observational studies in which patients are suffering from the same sickness. The doctors measure their everyday conditions and draw conclusions based on the measurements symptoms they perceive. Observational studies do not affect the patients’ health, since no drug is given and no intervention takes place. Therefore, the conditions for observational studies to be allowed are remarkably less severe than those for the other type of clinical research, the interventional studies. In these studies, doctors are trying to measure the effect of a new drug given to the participants, by observing and comparing the results of its use. On several occasions, participants given a placebo (ineffective treatment) instead of the drug that is being tested are randomly chosen, in order to better comprehend the effects on patients.

These tests need to be performed on individuals, since they will be the recipients of the drugs and medicaments. However, clinical trials on humans still remain an attack on dignity, taking into account that individuals are used as objects, or, at least, as means to a certain extent, while modern legal systems rely heavily on the common acceptance that any person is a subject of rights. The participant’s consent in fact eliminates the illegality argument with reference to the attack on dignity, but only in case it is informed, and therefore valid. 1.2. The process of clinical trial Based on these statements, the relevance of the isIn order to fully understand the problems occursue of clinical trials can be clearly identified. ring in connection with clinical trials, it is necesIn the present article, my primary aim is to provide sary to gain an understanding of their functioning, an overview of some important legal problems the process itself, and analyse their legal aspects. concerning drug trials on human beings. First, I Four phases of clinical trials may be differentiated. intend to explain the process of the clinical trial, Each of them is evaluated separately, and, if sucand then I will look through the most relevant in- cessful, leads to the next. (Naturally, before the formation on the requirements of proportionality studies could be applied to humans, the testing of and consent. Finally, I am going to discuss certain the drugs on animals has to take place). significant questions imposed and propose my In the first phase, the drug is tested on a small numpersonal thoughts on the issue. ber of healthy participants (usually, between 50 and 100 participants). These trials are usually brief 1. Clinical trials in general 30 38


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and their goal is the initial estimation of the safety of the product and its necessary dosage. Therefore, its usage on subjects with no health problems will reveal the most imminent dangers of the drug that didn’t occur when tested on animals. On the second stage, except for the short-term safety of the drug, the efficacy of the previously tested dosage is examined with regards to more subjects (100-500 subjects) who are patients. The criteria based on which the subjects of the trials are selected may vary significantly. The main point of this stage is to unveil certain implications and side effects of the drug when used by patients, and its first results to the patients’ health. The third step is made up of two main elements: more patients are included (1,000-5,000 patients), and the efficacy, the shortterm and long-term safety, as well as the effects of the exceeded dosage are tested. There may also be a comparison with drugs already used for the same illness, with the latter given to a group of patients (instead of the new drug tested), without them knowing. This is the stage where placebos are commonly used, in order to enhance the certainty of the results of the trial. In addition, this phase includes the participation of academics and doctors, familiarising them with the new tested drug. Nevertheless, the final phase is conducted while the drug is on market, in real life, without supervision in which the most relevant factor is the careful recording of analyses and feedbacks on the drug and its use. 1.3. Relevant legal regulations After the revelation of the horrors of human experimentations carried out by the Nazi regime, it was clear that as much as development in medicine was necessary and instilled hope for humanity, it also imposed a big risk. Thus, a regulation was needed. The first regulations concerning drug trials on individuals were declared in 1947, with the Nuremberg Code. It raised (quite vaguely) the important issues of the participants’ consent and

the proportionality of the risks to the benefits of the trial, as well as set the first ethic guidelines that should be followed. In 1964, the Declaration of Helsinki, which was a work of the World Medical Association, supplemented the already existent rules with certain necessary guidelines, but was still lacking of the necessary depth of the regulations it included. The Declaration is not a legally binding document, but influenced many national legislations, and has since been updated numerous times, in order to be synchronized with the modern medical and ethical developments. The most recent modification was made by the 64th WMA General Assembly in Brazil, in October 2013. The next step was made by the ICH GCP E6 Guideline (International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use), published in 1996. Its objective was the harmonization of the standards of the conduct of clinical trials in the European Union, Japan and the United States. The Oviedo Convention of 1997 followed the Guideline of the ICH. This is one of the most significant documents on the control of clinical trials to date, given that it is the first legally binding document devoted to bioethics. The Convention heavily relies on the principle that the interest of humans must always come before the progress of science. It also prohibits the conduct of clinical trials based on discrimination, especially for genetic medical tests. It must be noted that the Oviedo Convention under tight conditions permits research on persons unable to give consent, something that was criticised at the time. The European Union took action in 2001, with the ‘Clinical Trials Directive’ (2001/20/EC), which was faced with heavy criticism because of its complexity and bureaucracy, with doctors complaining that it slowed research. In May 2014, the ‘Clinical Trials Regulation’ (EU No 536/2014) was issued, introducing a more contemporary aspect into the connected European legislation, as an effort to re39


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REFLECTIONS spond to the critics of the Directive and accelerate the procedure of clinical research on humans. Unlike the directive, the regulation has binding legal force in all EU member states. Important innovations include a central database and a partly coordinated review system. Both of these steps help simplify the review system and improve the quality of assessments. In addition, they make the collaboration between member states on the conduct of clinical trials far easier. 2. The requirement of proportionality A common element in every regulation – national or pertaining to the European Union – regarding clinical trials on humans is the requirement that the risk for the participant cannot be disproportionate compared to its potential benefits (‘requirement of proportionality’). This principle, along with the general rule that the subject’s welfare always has to take precedence over the interests of science and community, can be found in the aforementioned Nuremberg Code, the Oviedo Convention, the Declaration of Helsinki, the 2001/20/EC Directive, and in almost all national legal systems. However, it is a remarkable tendency that the latter modifications of these documents, as well as the 536/2014/EU Regulation, seem to show more tolerance towards the scientific aspect – even with slightly different phrasings that allow more flexible interpretation. An example thereof is the language of Article 28 of the Regulation: ‘A clinical trial may be conducted only where all of the following conditions are met: (a) the anticipated benefits to the subjects or to public health justify the foreseeable risks and inconveniences and compliance with this condition is constantly monitored...’ The Article does not demand that the expected benefits for the patients’ health are at least equivalent to the possible risks, which leaves space for participation in clinical trials even if it may lead to health risks. 30 40

In opposition, the Oviedo Convention provisioned in Article 16 ii that a research on humans may be undertaken only if ‘the risks which may be incurred… are not disproportionate to the potential benefits of the research’. The word phrasing of the most recent legal documents leaves room for the doctors to conduct trials that test the proportion between the possible risks and side effects of the trial and the need for medical progress. In addition, with regards to the condition that the expected benefits for the subjects’ health exist, the interpretation of the term ‘benefit’ can be broad in order to justify the conduct of research, especially on individuals who are not able to give an informed and legal consent (such as minors or mentally-deficient adults). Such interpretation can be crucial, given that participation in clinical trials always includes the possibility of health risks that cannot be assessed because of the experimental approach on a new, relatively unknown drug or medical technique. However, this attenuation of the requirement of proportionality is considered necessary for the development of healthcare. Many diseases and sicknesses are still under examination by the medical community, and the world always needs new drugs as a solution to health problems. In addition, new diseases, or stronger forms of already existing ones, are a common phenomenon, due to the hazards of modern living (such as exhaust gas, genetically modified food, the greenhouse effect etc.). Therefore, medical progress is a constant need. In any case, clinical research on humans is possible only if robust scientific data support it, and if the research previously conducted on animals had good results. These conditions create the required safety for the participants. There are other requirements, such as the explicit guideline that patients have to be aware of all the relevant information in order to reduce the range of risk. This can be viewed as an effort


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to find equivalence between the ethical side of the participants’ benefit and the scientific need of research and progress. It is, after all, evident that the requirement of proportionality must be regularly reviewed and re-interpreted, in view of the ever changing medical and pharmaceutical needs of the population. 3. The requirement of consent Considering the aforementioned contrast between the necessity of medical progress and not only the participants’ welfare, but, above all, human dignity, the existence of an informed consent from the side of the participant in a clinical trial is extremely important (‘requirement of consent’). Therefore, doctors and researchers have to provide explicit information regarding: (1) the nature, (2) the objectives, (3) the benefits, (4) the implications, (5) the risks, and (6) the inconveniences of the clinical trial. The subject shall be informed about the rights and guarantees regarding his or her protection, in particular his or her right to refuse participation and the right to withdraw from the clinical trial at any time without having to provide any justification. The individual also has to gain knowledge of the conditions under which the clinical trial is to be conducted, including the expected duration of the participation and the obligatory rules related to it (for instance, smoking might be forbidden). Legal provisions have special relevance in the aspect that the individual must be aware of the fact that all of his or her personal medical data will be treated confidentially. Furthermore, he/she should be informed that all the collected biological samples will be used for the purposes of the particular research only. The duty to inform the subject also stretches to the applicable damage compensation system and the availability of the trial’s results. Usually, more information is required according to the specific needs of the individual participant. All the above constitute the requirement of con-

sent, which was first vaguely mentioned in the Nuremberg Code, and by the time expanded by the modern regulations. As a result, the EU Directive and Regulation impose a very strict and explicit legal framework regarding the duty of the conductor of a research to inform the participants. There has been criticism about these provisions, as it is regarded that they may cause problems in the conduct of a clinical trial. The interest of the participant, though, justifies the obligation for the doctors to provide full information. Moreover, the principal of consent is a way to secure that the remission of the principle of proportionality remains reasonable and does not permit extreme experimentation. This leads to the conclusion that the provisions regarding the principle of consent must be implemented without hesitation, however bureaucratic and time consuming they may be. Another important issue concerning the consent of the participants arises when the trial is conducted on participants not able to consent. This issue was not addressed by the Nuremberg Code. On the contrary, the latter indirectly allowed clinical trials only on patients with legal capacity. All the subsequent regulations, including the Helsinki Declaration of 1964, mention that special caution must be taken in order to conduct a clinical trial on incompetent participants or on children. In addition, they all specifically underline the importance of taking special care of vulnerable populations that participate on a trial. ‘Vulnerable populations’ include children, mentally incapacitated patients, as well as pregnant women and prisoners. For example, Articles 19 and 20 of the Helsinki Declaration mention that ‘19. Some groups and individuals are particularly vulnerable and may have an increased likelihood of being wronged or of incurring additional harm. All vulnerable groups and individuals should receive specifically considered protection. 20. Medical research with a vulnerable 41


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REFLECTIONS group is only justified if the research is responsive to the health needs or priorities of this group and the research cannot be carried out in a non-vulnerable group. In addition, this group should stand to benefit from the knowledge, practices or interventions that result from the research’. There are, as a result, special conditions concerning their participation in a clinical research. When the subject of a clinical study is not able to give a legal consent, the person who must be informed and sign the legal documents is his or her legal representative, acting on the subject’s behalf. In these cases, the individual (if he or she is a minor or a mentally challenged individual), must, in addition to his or her legal representative’s informed consent, have clearly expressed the wish to participate in the trial (which must relate directly to the medical condition from which the subject suffers), and have received the aforementioned information in a way that is adequate to his or her level of understanding. All necessary information to all participants must be provided in writing, in order to ensure that the participant is aware of all the aspects of the conduct. When an individual, despite the detailed information he or she has obtained, fails to meet a rule set for all participants during the conduct of the trial (for example, he/ she smokes when is instructed not to do so during participation), the doctors have the right to exclude him or her from then on. Conclusion

principle of private autonomy and self-determination. These two factors strongly suggest that the requirements for the conduct of clinical trials shall not be too severe. Given that the modern day health hazards require attention from the medical community, and there is always need for new medicaments for the protection of people, the right path is to further expand the conduct of clinical trials, especially if we consider that it is getting easier and easier for the members of the society to be informed on their legal rights. The criticism regarding the recession of the requirement of proportionality seems more and more outdated, in view of the progress of the medical science in all directions (such as assisted reproductive technology, cloning and transplants), which tests the limits of bioethics. As a result, it is essential to secure the progress of medical research, but always with limitations regarding respect of human dignity and avoidance of unnecessary human pain. Therefore, we must insist on the guarantee of proper medical data that have to support the trial, and on explicit, complete information for the participants without minding the increase of time needed and the bureaucracy. It would not be useful to further expand the scope of the requirement of proportionality, given that the goal of clinical trial is to determine the pharmacological activity and side effects of a new, unused treatment. Therefore, health risks will always be significant, but can be justified with the purpose of medical progress. As a conclusion, clinical trials should be done taking into consideration the limits of the necessary level and the potential benefits for the patients participating, but without exaggeration on the efforts of safeguarding ethical principles that may pose unnecessary limits to the medical progress.

Undoubtedly, clinical trials on humans raise a number of questions related to ethics and law, however, the necessity of progress in the field of medicine increases with time. The dogma of the higher value of one’s life and health has been used as a guidance principle for a long time. Therefore, it can be considered an interesting tendency that the legal community starts to lean towards the 30 42

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REFLECTIONS The right of people to declare war and to a specific wartime conduct in the ‘De bellis iustis’ by Stanislas of Scarbimiria The idea of just war, which even denied the admissibility of a military attack as a way to resolve disputes at all, derives from the earliest times of humanity and both are nearly as old as the war itself. Not to mention the famous words from ‘The Book of Isaiah’ about beating the swords into Wojciech Bańczyk ploughshares, a great deal of doctrines, most of them similar, appeared throughout the ages. One of them was the one introduced by a fifteenth century Polish scholar, Stanislas of Scarbimiria, in his ‘Sermon on just wars’. This first codification of a body of public international law based on a professional scientific research, objectively deals with a great deal of problems regarding the justified declaring war and of wartime conduct. Both in his way of writing and his approach to examined matters, Stanislas seemed to be much closer to the modern points of view on the law of war, unlike his contemporaries.

Stanislas was one of the main supporters of the process (which finally led to the reopening of the University in 1400) and became its first rector. Afterwards, he served at the royal court and produced significant works on international public law and philosophy. He died in 1431. (Ożóg, 2007) At the beginning of the 15th century, Polish politics was mostly focused on the problem that was the Teutonic Order, a substantial power, neighbour to Poland, aiming to increase its influence and reign – especially on the territories of Lithuania (the last pagan country in Europe, to the Christianisation of which the Order was settled on the Polish-Lithuanian border). However, Lithuania allied to Poland and was Christianised by it. Then the Order lost its chance to control Lithuanian territory itself and, in fact, became useless on those terrains.

Therefore, the conflict between the Order and Poland emerged both on military and judicial fields. The dispute was debated at the Council of Constance as well (at the time the biggest summit meeting of the world, focused mainly on reforming the Church). Even though the greatest authorities, the Pope and the Em1. The doctrine of Stanislas of Scarbimiria in the peror were initially supporting the Teutonic Order’s context of Polish politics point of view (especially on the admissibility to forceStanislas was born in 1365 in the city of Scarbimiria, fully convert ), eventually inclined to the argumentaLesser Poland. He was a priest in a diocese of Kraków, tion on religious tolerance, self-determination of peoeducated in liberal arts and canon law. In his career he, ple, peaceful coexistence of nations and equal rights however, mostly focused on academic and diplomatic to all humans. This was mainly presented by Paulus challenges and served the country within both these Vladimiri, a Polish representative during the Council (Tronina, 2011, p. 77). Having finished his studies, and a Cracovian University scholar (a little younger he started cooperating with the office of King Jagiello than Stanislas, strongly influenced by him). and his wife Jadwiga. When Jadwiga died in 1399, she 2. The main characteristics of the sermon “De bellis left as heritage in her will a considerable amount of iustis” (About the just wars) jewellery, to serve for the restoration of the University of Krakow (later Jagiellonian University in Kraków). Although the form and the contents of Stanislas’s 30 44


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writings were objective and focused on an academic, systematic study, they were deeply concerned with the geo-political positioning of Poland in his times. Unlike Vladimiri, he did not concentrate on persuasive issues. In an educational method, he made a perfect display of previous academic works in order to support his own ideas (Stanislas forms a comparative framework from the Bible through Cicero, St. Augustine, St. Thomas Aquinas, Pope Innocent IV to other great canonists). Having some of the most enlightened predecessors in his area of research, Stanislas produced a consistent piece of work in the specific manner of his times, which can play an important role even nowadays. The sermon “De bellis iustis” has a specific way of argumentation inclined on clearly depicting what an individual may and what he may not do. This aspect is also visible in the part where Stanislas emphasises the role of human conscience and underlines the people’s will to every undertaken action. This issue is later analysed in a context of responsibility for activities. (Ehrlich, 1955, p. 43) Being, however, designated to a well-read audience the sermon might have successfully acted like a scientific treatise or an academic lecture. 3. The right to declare war (ius ad bellum) Taking into consideration the overall characteristics of Stanislas’ doctrine, it is important to begin the analysis of the law of war from the role and importance of peace. Though in the 15th century such inversion in the description of international public law using its two vital elements would have been regarded as ridiculous, it seems to be pretty obvious now. It was also exceptional to begin the sermon with military law, from the description of the cruelties of war (Scarbimiria, 1955, p. 93) and to finish it with a prayer for the common peace (Scarbimiria, 1955, p. 145). Stanislas strongly indicates that peace is the natural state of the world, to which it should aim (Scarbimiria, 1955, p. 129). His view seems quite close to the current state of the public international law doctrine, which had been

established in the following five centuries of many bloody wars. The war is therefore described as one of the ways to achieve peace, renounce law and order and restore the affairs to the position before the war. Even though it is regarded as a threat to global stability, it is accepted as a way to resolve international disputes, when they cannot be solved in any other way (Scarbimiria, 1955, p. 101). Vladimiri conditions the admissibility of war, even in self-defence, on an additional factor – an obligatory judgement of an international tribunal (Ehrlich, 1968, p. LVIII). In contrast, Scarbimiria regards unjust war as a symbol of evil, stating that it must be eradicated. Stanislas repeats Raymond of Penyafort’s idea and develops his five conditions a war must fulfil in order to be regarded as just, which is the only admissible form of war. It must be conducted by an approved subject (persona) who is not clerical (these are not allowed to be active during warfare). It must have an object (res), aiming at either regaining the state of possession from times before the war or at protecting the fatherland. At the same time, Stanislas regards all aggressive wars (leading to retribution higher than actual losses or punishment) as unacceptable (unlike, for instance, Francisco de Vittoria’s opinion on this matter). The war must have the just reason (causa) of necessity to regain or reach the violated peace. It must be followed by a proper, fair will (animus) of heirs to fight, but only for justice and within the law and love of God and the people, neither based on revenge, greed nor hatred. Finally, it must be authorised (auctoritas) by law, a sovereign or the Church (Ehrlich, 1955, p. 57; Scarbimiria, 1955, 95-101). The special regulation is given for the war in self-defence as a qualified example of a just war. This was based on a Roman and canonistic maxim meaning that force can be answered with a use of force (vim vi repellere licet) and a natural characteristic of every creature’s right to protect its own living and confront with violence undertaking inevitable measures (Scar45


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bimiria, 1955, p. 115). An attacked country can immediately use force to cease the danger, even without authorisation, but cannot simultaneously make use of such situation in the form of an aggression to ensure profits (Scarbimiria, 1955, p. 105). The right to use military force in self-defence is admissible even now, based on Article 29 of the United Nations Charter, as an exception to the prohibition of the usage of force in international affairs. This right is also limited in time and concerning its subjects. 4. Right to a specific wartime conduct (ius in bello) Conditionally accepting the existence of war in the global politics, Stanislas draws rules for a war to be just, not only in the moment of declaring it, but also during its course of action. Starting his consideration on possible measures to be undertaken during the course of a war, he again stressed the role of peace and accepted acts of undeniable wartime violence when they were necessary and could help reaching the state of peace. These, however, are certainly admissible in a just war only, since unjust war is inadmissible at all.

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It is acceptable to kill people during wartime, but only if it is inevitable in a just war (bellum iustum). Stanislas believed that not only was such action free of consequences, but could also be a source of blessings as gratitude for the bravery presented in love of God and the country (Scarbimiria, 1955, p. 109). Warriors could make use of traps, ambushes, war machines like crossbows as well as the help from pagans (just like any military equipment can be used, under the condition of necessity, unlike the opinion of Alberico Gentili – Ehrlich, 1955, p. 47, Scarbimiria, 1955, pp. 129-131). The circumstances are reversed in an unjust war, in which both monarchs and soldiers were not even allowed to use force. Although it was compulsory to carry out orders, only those justified constituted a proper obligation (Scarbimiria, 1955, p. 143). This idea is extended by Vladimiri, who admitted the right to reject the subordination to the monarch, whose decisions were legally or morally improper (Vladimiri, 1968, p.


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72).

visions of natural law (for example, they are in equal possibility to make a use of the right to self-defence – Scarbimiria, 1955, p. 131). Pagans were, after Pope Innocent IV, given the right to reign countries and possess goods which were created by God for all humans and even the Pope could not take their possessions away (Scarbimiria, 1955, p. 137). The territories, however, were at first owned by the human community as a whole, but this led to disagreements so the lands became considered as being primarily occupied by some people (regarded as groups or individuals). This granted them the right to property, inviolable by anyone else. They could have used force to protect their terrains from enemies, which included an opposition against conversion with a use of force (Scarbimiria, 1955, p. 137). However they were not allowed to oppose peaceful conversion, which was supposed to be acceptable and even desirable (Scarbimiria, 1955, p. 133).

Regardless of the motives of any war, it is very likely to cause destruction. If damage is caused during a just war and within the necessary good faith of the fighting men (their harmful behaviour was not affected by malice), it does not have to be redressed. The existence of such devastation was accepted both on the terrains of an attacked country and on the land of their people as well – as a material contribution to the fight of the other people for one’s own country (Scarbimiria, 1955, p. 111). The participants were also allowed to keep their warfare prizes as their personal property (Scarbimiria, 1955, p. 107). Nevertheless, the situation is to change significantly, as the conduct of the unjust war (iniustum bellum) implies, indeed, extended responsibility of the aggressor. Based on legal, moral and religious sanctions, the monarch was obliged to redress the damage caused to the other side, either by himself or his soldiers. Moreover, he was also responsible in the eyes of his own people for the destruction 6. Summary done by the other side. We can admit that the work of the Polish scholar Evaluating the damage shall be done by permanently could have played a vital role in the history of the relating to the role of the remedy. It aims at restoring world, having been able to prevent some of its cruel the pre-war state and is supposed to restore the social, happenings. Proposed in the early 15th century, it political and economical balance, which were violated gained some form of recognition in the international by the military attack. These measures seem to derive law and politics of those times and among a great deal from the provision of international law and even the of scholars throughout ages. However, the actual recgeneral principle of law which states that the violation ognition of the doctrine, with the concepts of human of obligation (to maintain peace, for example) leads to rights and limited admissibility of war, came half a the necessity of redressing its consequences. millennium later. That is the reason why we can prove that Stanislas’s works are not only useful, but also 5. The inadmissibility of a religious war somehow inevitable on a long way to the global unAlthough during the 15th century Europe was deeply derstanding of peaceful coexistence of nations, equalreligiously discriminative, some doctrines, even with- ity of people, and codification of international public in Canon law, stated that the rights of pagans were law. They seem to be quite obvious now, but according equal to the rights of Christians. Stanislas underlines to Stanislas they were equally obvious back in the 15th the importance of human dignity, which establishes century. equality between people and distinguishes them from By Wojciech Bańczyk all other creatures (Scarbimiria, 1955, p. 131) and derives from it further rights (Bańczyk, 2015, p. 82). Both pagans and Catholics are subject to identical pro-

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SPECIAL GUEST The (law?) abiding role of copyright collecting societies at EU level Our guest for this issue is Giulia Priora, who is pursuing a double degree in Italian and German Law, at University of Turin (Italy) and University of M端nster (Germany), as well as a Research Assistant at the Institute for Information, Telecommunication and Media Law (ITM), University of M端nster. We invited her to adapt and publish her article in our issue after presenting it at the Undergraduate Summer Conference - Voices of a New Generation, an event organized by the CEU Legal Department between August 27 and 28, 2015. We hope you will enjoy the read! consequences is, in fact, hardly ever provided. This article aims to highlight how some recent technological advancement might suggest changes in the legal framework of our society, thus binding the institutions to take such digital progress into account in order to develop adequate responses.

Giulia Priora

Introduction Some immediate observations about the digital environment around us are its distinctive netshaped nature and its ever-increasing potential in terms of efficiency. Both these features, albeit true, might lead to hasty statements concerning the effects of the digital world on legal regulations. The impact of the Internet is taken into consideration in almost every field of research and production, but a full analysis of its 48

The field of analysis chosen is the current scenario of copyright legal protection in Europe. In accordance with the fundamental principles of territoriality and non-discrimination, European copyright regulation counts 28 different national frameworks. The EU has been showing the firm intent to harmonize the legal framework and reach a level playing field through a sectorial approach. The harmonizing attempt goes together with the modernization of copyright promoted by the 1994 TRIPS Agreements and 1996 WIPO Treaties. The InfoSoc Directive 2011/29/EC has broadened the notion of communication to the public by embracing online exploitations, too. This has had massive consequences within the paradigm of copyright management. Generally speaking, copyright exploitation deals with the value of the created work, which sets itself onto the market. Hence, copyright as legal entitlement has acquired an ever more economic


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justification and relevance in terms of growth of both national and European GDPs. In this expanding scenario, technological progress has also enlarged the extent of copyright protection and its exploitation. Through the establishment of neighbouring rights, in fact, the copyright holders are no longer only the authors, but also the performers, producers and broadcasters. The justification of such move is purely economic. Additionally, the number of users potentially willing to access the created content for either private or commercial, primary or secondary purposes has become almost infinite, thus leading to the notion of “mass users” (e.g. internet providers). In such situation, neither the copyright owners nor the users could possibly manage to carry out in first person all the operations involved with the exploitation of the copyrighted content. The right holders find extremely difficult to know who is interested in exploiting their works and how; whilst the exploiters have the arduous task to trace all the copyright owners and obtain the authorization for the desired use. For this reason, this article focuses on the role played by collecting societies (hereinafter CS). Between copyright owners and copyright addressees, CSs interpose themselves for the purpose of running the information, administration and enforcement of the rights involved. Since the second half of the nineteenth century, these ad hoc entities have been platforms where the right owners’ needs can meet the users’ interests. Throughout the EU legal framework, CSs are deemed as natural market players and their establishment is taken as granted. In addition, the definitions provided are few and extremely broad.

tional ways; nonetheless, common aspects can be detected. In every EU Member State there is at least one CS managing either specific rights (e.g. German GEMA and GVL, Slovakian SOZA) or all rights of only certain right holders (e.g. French SACEM, Italian SIAE, Belgian SABAM). In most of the cases, CRM presents a voluntary basis. According to Art.11bis(2) and Art.13(1) of the Berne Convention, CRM can be introduced as mandatory model in national legislations as far as non-exclusive remuneration rights are concerned. At EU level, mandatory CRM is provided for cable retransmissions (Art.9 Satellite Directive) and possible for the right to equitable remuneration in rental and resale (Art.4 Rental Directive and Art.6(2) Resale Directive). Many countries, such as Germany, have relied very much on such provisions and have built up their national copyright systems based on extended mandatory CRM. In those countries, the axes between CSs and big copyright-based industries are particularly strong and limit the flexibility of copyright management regulations.

In order to have a closer look to the functioning of CSs, the record music sector will be taken as pilot model. Compared to other branches of the creative industry, it presents the unique feature of a strong demand of the whole global repertoire. Plus, the early consolidation of its operating bodies and practises has made it the most mature field of experimentation of copyright management systems. During the last two decades, the music sector has clearly experienced major changes in the communication, processing and distribution of content. The legislative response has not been consistent enough to avoid fragmentation and therefore The collective rights management (CRM) modthe EU has recently gone beyond its standard el has been evolving in numerous different naissue-specific approach and adopted the Direc49


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SPECIAL GUEST tive EU/26/2014, which will be implemented by rights revenue among the CS members and, in April 10, 2016 in all Member States. case, invest or use part of it to promote the cultural industry. The active participation by the 1. How do collecting societies work? members in these decisions as well as the exCopyright owners waive some of their rights to ternal control over the adopted policies are the the respective CS through mandate agreements, cornerstones of a lawful modus operandi by a which set the licensing and trading conditions CS; nonetheless, these aspects were not harmounder which the works will be exploited in a nized at EU level until the most recent Direcworldwide scale. The extent of such transfer tive EU/26/2014 and national regulations have must be limited to the rights and the time pe- presented so far extremely problematic loopriod being specifically mentioned in the agree- holes. ment. High-profile case law (among which, the Both the abovementioned spheres of activity European Commission decision in Banghalter started being faced with the transnational naand Homem Christo v. SACEM, 2002) highture of the digital environment. In particular, lights in fact the unlawfulness of any transfer CSs issue standardized licenses that have doof all rights together or for an unlimited period mestic validity. Yet, the right owners stipulate of time. The only strict limitation to right ownmandates with CS which cover worldwide exers is the prohibition of double membership, ploitation of the work. This is possible thanks leading to the fact that the same rights on same to international reciprocal agreements between territories cannot be waived to different CSs. CSs. Through them, a CS can manage in its naSince moral rights normally cannot be alien- tional territory the rights of foreign CSs´ reperated, CSs mostly deal with the exploitation toires. Every CS has therefore two repertoires: of economic rights. These can be exclusive or the one of its own members, which they mannon-exclusive. Even though exclusivity has al- age worldwide, and the international ones of ways been the milestone of intellectual prop- the represented members, administered only in erty rights, exclusive rights have turned to be national territory. As stressed by the ECJ in case practically almost unenforceable in the mass Minister Public v Jean-Louis Tournier, 1989, digital environment. On the contrary, non-ex- the twofold scope of reciprocal representation clusive rights have found widespread applica- contracts is to guarantee common conditions tion within national laws on fair remuneration for use of protected music works in all MSs and to let CSs rely on sister CSs. Such international and compensation. agreements undoubtedly facilitate the transnaOnce the rights are transferred, the CS can act tional functioning of the CRM model, but raise on the right owner´s behalf, accomplishing major legal issues. several tasks, which can be grouped into two areas of activity: the licensing of rights and Firstly, until now and with the sole exceptions of the rights enforcement. Compared to direct le- the Santiago and the IFPI Simulcasting Agreegal relationship and negotiations between the ments, European CSs could provide multi-terparties at play, the collective dimension of this ritorial licenses only for their own repertoire, model of copyright management requires the but not for the one represented foreign ones. additional step of distributing the collected Secondly, the model seems to lead CSs towards 50


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a monopolistic position on the national territory in providing international repertoires. In other words, it causes an unjustified partitioning of the market, which is in strong opposition with the EU single market. The new Directive aims to solve both these problematic aspects by promoting the principles of transparency and good governance and by introducing a multiterritorial multi-repertoire licensing system for rights of music repertoires for online uses. 2. Pros and cons of collective rights management In the interest of reaching a broader audience and higher legal protection, the right holders have been largely opting for CRM. For more than one century CSs have been operating as the only solution to the problem of unfeasible collection of authorizations and royalties in person. By means of it, they safeguard the protection of copyright owners, increase their bargaining power, ensure the availability of their works onto the market and, hence, might increment the profit gained from their exploitations. In addition, they strongly reduce the transaction costs of licensing and present a very inclusive connotation, as they cannot exclude members from other MSs nor refuse to license a user without legitimate reason.

hardly ever been subject to structural changes and its functioning is jeopardizing the EU single market. The static nature of CSs finds its roots in standard model contracts which do not necessarily always meet the needs and preferences of the parties; fixed costs and distribution policies, whose fairness is faced with the problem of highly burdensome processes of use monitoring and data collection; and finally, the dominant position acquired and strong tendencies towards path dependence in the practices. Evidence of such effects can be found in the fierce opposition of some CSs against normative and institutional changes, especially about the increase of competition within their operating field. This scenario collides with the interconnectivity of the Internet, which, on the contrary, leads to information exchange and transparency, also in the monitoring of CS activities, and therefore to broader competition and alternatives. 3. Digital rights management: an alternative? If not collective, the management of copyright can be individual, being based on the freedom of contracting of the parties at stake. Through individual rights management (IRM) practices, the right owner has full control on the price of his/her works and on the access to it by third parties. The feasibility of such model has been brought up by the digital technologies which have developed ways of managing the needs through measures of protection and access control, called technological protection measures (TPM). If the right owner wants to exploit the work online under specific conditions, he can administer it through TPMs, which monitor access and uses mainly of the copying process through ad hoc hardware or software devices.

The question arising at this stage of analysis is therefore which are the problems related to CRM. The main legal issues concerning CSs stem from their static economic position. The efficiency of CRM as a model finds in them a powerful market agent which may be the solution of a market failure. By acting as “one-stopshops�, though, they tend to leave the parties involved with no other choice than to accept the conditions and costs of their licenses and policies. The regulation of CRM, although pre- The rights management model behind it has dominant as a model throughout the EU, has been named digital rights management (DRM)

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SPECIAL GUEST and is applicable by individuals as well as by CSs. The main -and still lively debated- advantages of it reside in the possibility of so-called “cherry picking”, generating diversification of the digital content and price discrimination through an incredibly large range of different TPMs. DRM represents a highly suitable example for the point I am stressing. Which is that technological progress does not only highlight where the regulatory gaps are; it might fill them, suggesting new models, showing trends of interests, sometimes even replacing existing legal structures. DRM should be therefore hold as a response to an actual need, rather than an alternative model system.

Yet, Internet is showing us the contrary: a dominant imposition of CS model in the music sector and a subsequent lack of competition in the market, which play the roles of real obstacles in the system, not allowing to reach the level of protection for the right owners and the one of access for the users which they both should be granted with. Conclusions For the purpose of understanding the future legislative developments, some points have to be clearly stated. The first one is that CSs have proved to be an effective response to the need of protection of right owners and of public access. Their role is essential to the creative industry markets and they hold a strong cultural and social role, being crucial crossroads between market agents. National and European institutions accept their dominant market position, while rejecting only the abuses of it.

Yet, the model is not self-sufficient, mainly due to its highly technical connotation, leading first of all to the impossibility of recognize whether the uses of the works are legitimate or not and secondly to some harsh restrictions on Nonetheless, the CRM model has begun to users rights. show some weaknesses, raising concerns about The practice has seen only strong market play- its own self-sufficiency. The Lisbon EU Council ers in the music sector detaining premium wanted to achieve the most competitive and dyrepertoires being willing to opt for individual namic knowledge-based economy of the world management in the form of DRM. by 2010; now the objective is the Digital Single Market, a smart, sustainable, inclusive growth A further observation to make is that the digital by 2020. For this reason, the idea of using the technologies have intensified the extent of the digital environment to create not a substitute, market failure in the promotion and diffusion but a complementary tool for the implied parof copyrighted content as “quasi-public” goods. ties to match their legitimate claims brings to In other words, the copyright management opthe second part of the answer: we still need CSs erated by CSs might be seen as a solution to the but we might need not only them. copyright “paradox” pointed out by Prof. Gervais between the structure of copyright and its Recalling the fact that right holders are free to purpose, in the sense that they provide a rec- waive only part of their rights to a CS in specifonciling response to the conflicting interests ic territories as well as to withdraw their rights at stake with an efficient organizational model, and administer them individually, copyright significantly reducing the role played by exclu- protection can be diversified and managed in sive rights. multiple ways. The EU goal of reaching a level 52


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playing field through the brand new mechanism of pan-European multi-repertoire licensing together with the implementation of good governance, higher transparency, flexibility about duration and scope of the mandates and the safeguard of the possibility for copyright owners to manage individually their rights seems to inspire an harmonized horizon of, on the one side, competition and, on the other, cultural diversity.

of CS might raise and find an institutional setting. Rediscovering their social and cultural role (other and more substantial than the limited amount of investments they go with for promotion of cultural funds), CSs should focus on the core of their management activities, that is granting the authors not only protection and representation, but also information, training and counselling on all copyright management models available. This would solve one of the current main inefficiencies, namely the lack of CRM arose as a respond to the difficulties of information notwithstanding the complexity of IRM to secure income to the authors and public such management. interest in the access. Today the scenario has deeply changed and the evolution of CSs into In other words, CSs should lean more towards “businesses of yes� -as Prof. Gervais named it- the assistance of right owners in identifying is very anachronistic. As far as they their com- risks, costs and suitability of the copyright pliance with competition rules is under control management models available. This might be and abuses of dominant position are avoided, an effective, self-sufficient solution to the parCSs represent the most efficient institutional adoxical aspects of copyright management, as response to the clash of interests on copyrighted argued by Prof. Hilty and Prof. Nerisson. In works, but not without room for improvement. addition to that, the recent EU legislative acThe effort should be towards the understand- tion intervening in the copyright management ing of changes within the paradigm, keeping for digital uses may be seen in light of a less into account that music demand is a constantly sectorial approach. If in the future a pan-Eusignificant presence in the creative industry. In ropean copyright entitlement will be reached, order to avoid regulatory inefficiencies, which CSs could still be the advocates of the essential currently represent the only reason of econom- bond of copyright to the parties involved within ic loss, flexibility towards a self-sufficient new a facilitated transnational, digital system. Here solution should be embraced, broadening the again, a closer combination of CRM and IRM licensing offer and therefore the authorized ac- would be of great benefit in such a scenario. cess to works in the EU digital single market. By Giulia Priora Remarkable inputs towards change are given by projects such as the Copyright Hub in the UK and the Cultural Commons Collecting Society (C3S) in Germany. Additionally, some CSs have started to adapt their operating schemes towards a more flexible structure, providing for instance dual licensing and allowing to the right owner to individually license and manage rights for non-commercial uses. Therefore it is not inconceivable that a new conception 53


INTERNATIONAL FOCUS


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INTERNATIONAL FOCUS Comparative Human Rights Law and the Muslim Headscarf: the Position of the UN Human Rights Committee and the European Court of Humans Rights

Introduction

judgment of the ECtHR, Dogru v. France (2009) and one decision of the HRCtee, Hudoyberganova Cultural diversity and the v. Uzbekistan (2004). principle of religious plu1. Sources ralism are axiomatic for a democratic society. Un- Freedom of religion is a fundamental human doubtedly, the world is right grounded in the text of various instruments, dealing with an increase adopted at international and regional levels. In the in religion intolerance. In United Nations context, Article 18 of the ICCPR the aftermath of the Sep- is the core article that warrants protection for the tember 11, 2001 attacks, said right. Under the Council of Europe frameLavinia Iușan the misplaced concern work, Article 9 of ECHR is the key provision (Taythat the overt practice of Islam is a proxy for ‘ex- lor, 2005). tremism’ led to xenophobia and discrimination toAccording to the two articles, freedom of religion wards Muslims (Taylor, 2005). An appraisal of the embraces not only the inner-life but also the pubdevelopment of freedom of thought, conscience, lic manifestation of religious beliefs, which inand religion as embodied in Article 18 of the Include the freedom to wear religious clothing (Elternational Covenant on Civil and Political Rights Gallal, 2014). The ‘forum internum’ (i.e. the inner (ICCPR) and Article 9 of the European Convenfreedom of religion) is inviolable and subject to tion on Human Rights (ECHR) has never been no restrictions under both articles. In contrast, more challenging. using slightly different language, Article 18(3) ICAs EL-Gallal observes, ‘religions provide their CPR and Article 9(2) ECHR allow governments members with a sense of identity and security’ to limit the freedom to wear religious symbols (El-Gallal, 2014, p. 23). Therefore, not only the under certain circumstances (Bantekas & Oette, common norms and values but also religious sym- 2013). Less egregious infringements involve quesbols unite people of the same religion. The Muslim tions as to whether they are prescribed by law or veil has triggered intense debates about freedom whether they are justifiable restrictions under the of religion. The enactment of national regulations ‘necessity’ requirement (Parker, 2006). The ECHR which ban the right to wear a hijab in public plac- provides an additional condition, the interference es brought several cases before the human rights to be ‘necessary in a democratic society’. Thus, it monitoring bodies, such as the Human Rights must fulfil a pressing social need and must be proCommittee (HRCtee) or the European Court of portionate to the legitimate aim pursued. Human Rights (ECtHR). 2. Comparative synthesis This article aims to compare the practices of the 2.1 Facts ECtHR and HRCtee when dealing with a limitation of the right to wear the Muslim headscarf. For The controversies surrounding the wearing of rethe purpose of the comparison, I will consider one 56


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ligious clothing and symbols in public institutions such as schools or universities found their way to the HRCtee and the ECtHR (Carolyn, 2006). The decision in Hudoyberganova v. Uzbekistan (2004) involved a university student of the Muslim faith who was expelled for wearing a hijab. The applicant refused to abide by the Institute`s regulations that barred students from wearing religious dress in school. The UN HRCtee found a violation of Article 18 ICCPR, which prohibits ‘coercion that would impair the individual`s freedom to have or adopt a religion’ (Hudoyberganova v. Uzbekistan, [2004], at 6.2.). In the judgment Dogru v. France (2009), Belgin Dogru, enrolled at a public secondary school in France, refused to remove her hijab during physical education classes. As a consequence, she was expelled from school on the reason that she breached the duty of assiduity and did not comply with the school`s regulations governing safety and health. Under these circumstances, the applicant alleged a violation of her right to religion and education. The Court held that there has been no violation of Article 9 of the ECHR, but did not examine the complaint based on Article 2 of the Protocol no.1 to the Convention (Dogru v. France, [2009], at 78 and 84). 2.2 Merits A glimpse at the reasoning of the two human rights bodies shows that both the Court and the Committee agree that freedom of religion includes the freedom to wear religious symbols, such as the hijab (Hudoyberganova v. Uzbekistan, [2004] at 6.2., Dogru v. France, [2009] at 47). Consequently, both bodies ruled that a ban on wearing a headscarf in a public school or university represents a restriction on the right to manifest ones religious beliefs (Dogru v. France, [2009] at 48, Hudoyberganova v. Uzbekistan, [2004] at 6.2.),

freedom of religion meet the requirements of Article 9(2) ECHR and Article 18(3) ICCPR. In Hudoyberganova, the Committee found that the expulsion of a female student from a university because of her refusal to comply with a regulation that prohibited the wearing of Islamic headscarf constituted a violation of Article 18 ICCPR. Five years later, in Dogru, the Court reaffirmed its contrasted legal position, holding that there has been no violation of Article 9 of the Convention (Dogru v. France [2009] at 78). Firstly, in determining whether the restriction is ‘prescribed by law’, the ECtHR held that ‘the interference in question had a sufficient legal basis in domestic law’ (Dogru v. France [2009] at 50 and 59). Referring to its previous case law, the Court reiterated that the concept of ‘law’ must be understood in its substantive sense (Dogru v. France, [2009] at 52). Therefore, the law must meet three conditions: to be accessible to the persons concerned, formulated with sufficient precision and to a degree that is reasonable in the circumstances that a given action may entail. Reaching the same conclusion as the Court, the Committee held that in Ms. Hudoyberganova’s case the exclusion was based on the internal provisions of the University’s regulations (Hudoyberganova v. Uzbekistan, [2004] at 6.2.). However, the UN HRCtee did not refer to the quality of the law in question.

Regarding the second condition, the ECtHR held that the interference pursued the legitimate aims of ‘protecting the rights and freedoms of others and protecting the public order’ (Dogru v. France, [2009] at 60). On the contrary, the Committee notes in para. 6.2 of the Hudoyberganova decision that the State Party has not invoked ‘any specific ground’ for which the limitation imposed on the applicant could be understood as necessary in order ‘to protect public safety, order, health, or morals or the fundamental rights and freedoms However, striking divergences can be observed beof others’. The only justification the Government tween the approach of the HRCtee and the ECtHR brought was that Ms. Hudoyberganova infringed in determining whether the interferences with the 57


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INTERNATIONAL FOCUS the internal regulations of the University (Hudoyberganova v. Uzbekistan, [2004] at 4.3). One could say that the different conclusions reached by the two HR bodies are due to an absence of arguments presented by the parties.

the UN HRCtee in Hudoyberganova had a different approach, focusing on the particular circumstances of the case. The Committee reasoned its position in one single paragraph, avoiding to apply the notion of ‘margin of appreciation’. Instead, the HRCtee held that the measure at stake, which Lastly, the Court considered the requirement that restricts access to education, amounts to coercion the infringement is ‘necessary in a democratic soand cannot be justified solely by the principle of ciety’, a condition not assessed by the Committee. secularism. An interference which is ‘necessary in a democratic society’ must be shown to fulfil a ‘pressing social The Court failed to prove the proportionality test need’ that is proportionate and relates to the legiti- when it supported the grounds provided by France mate aims pursued. In a pluralistic society, legiti- to justify the ban, namely protecting the secular mate limitation on the freedom of religion may be order of the state and the rights of others. It did necessary ‘if the freedom clashes with the aim of not consider if the social need was addressed in protecting the rights and freedoms of others, pub- Belgrin Dogru’s situation or if the limitation of lic order, and public safety’ (Parker, 2006, p. 119). her right to wear a hijab was the least restrictive The Court did not assess the proportionality test, limitation possible. The ECtHR afforded France a but it recognised that a ‘margin of appreciation’ wide margin of appreciation to determine what is must be afforded to the Member States (Dogru v. necessary in a democratic society and it refrained France, [2009] at 71). A hijab ban imposed during from examining the proportionality test. Granting physical education classes was found to be reason- a state a wide margin of appreciation poses serious able because it was necessary to comply with the concerns, for it affects a series of rights, including school’s internal rules on health and safety. The the right to education (Bantekas & Oette, 2013). consequence was not disproportional as she was States should not enjoy such a wide autonomy to able to continue her schooling by correspondence define secularism in cases concerning freedom of classes (Dogru v. France, [2009] at 73). religion. 2.3 Clash of jurisdictions The comparative analysis of the legal reasoning in the two cases reveals that at a regional level, the Court seems to be more willing than the Committee to allow States to limit individuals’ freedom of religion while the Committee approaches a view in line with the principle of religious neutrality (Scheinin, 2012). In determining which body has a stronger legal reasoning, one must look at the approaches the ECtHR and HRCtee had taken in assessing Member States’ margin of appreciation when deciding how to enforce the fundamental rights. While in Dogru the ECtHR gives France a wide margin of appreciation for defining whether the limitation is necessary in a democratic society, 58

From my perspective, the Committee had balanced the interests of the individuals and of the state better than the Court, in this way managing to protect the applicant’s right to freedom of religion. This is why I assert that the legal reasoning of the HRCtee is stronger than the one of the regional body, irrespective of its non-binding character. However, I believe that it is noteworthy to stress that in Hudoyberganova, the Committee states that Uzbekistan had not actually put forward any particular reasons for limiting the applicant’s freedom of religion (Hudoyberganova v. Uzbekistan, [2004], at 6.2). The Government of Uzbekistan had a right to limit fundamental rights on the ground of public order (Kuznetsov, 2014). Hence,


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if the limitation had been possible to explain by the same ground advanced by the government in Dogru, the legal reasoning of the Committee and the Court could have been similar (Temperman, 2014). In order to uphold my opinion, I must emphasise that the ECtHR was constant in its judgments concerning the freedom to wear religious symbols (for instance, in the 2004 Leyla Șahin v. Turkey). However, in light of the principle of a ‘living treaty’, the Court found that UK violated a citizen’s right to manifest her religion when the applicant was not allowed to visibly wear a cross necklace at work in the recent case of Eweida v. UK (2013). Judicial borrowing is present between international Human Rights bodies. Even if the ECtHR in Dogru did not choose to follow the reasoning of the UN HRCtee in Hudoyberganova, the recent case shows a shift in the Court’s legal reasoning.

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Conclusion This article has focused on the differences and similarities in the legal reasoning of the HRCtee and the ECtHR. The two cases discussed raise questions about the future of freedom of religion, especially in countries where the constitutional principle of secularism is enshrined. The Human Rights Committee, in its decision, wisely managed to balance the applicants’ rights vis-à-vis the state’s interest, protecting the rights of persons belonging to minorities. The judgment is an example of the way in which the European Court of Human Rights affords a wide margin of appreciation to States. But, in analysing the case under Article 9, the ECtHR should not refrain from analysing the proportionality test and it should not neglect to address other provisions. I hope that the two human rights monitoring bodies will reflect ‘a spirit of tolerance and respect for human rights’ in their future cases. By Lavinia Iușan

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INTERNATIONAL FOCUS The right to a healthy environment in the system of the European Convention on Human Rights

My aim is to outline the

main aspects regarding the evolution of the case-law of the European Court of Human Rights concerning environmental matters and more specifically, to bring into focus the dynamics of perception regarding the right to a healthy environment. I will start by preSabrina Matei senting the initial position of the European Court of Human Rights (hereinafter the ECtHR), its conversion over time and finally, I will reveal the current state of affairs concerning environmental matters as reflected in the ECtHR’s contemporary jurisprudence. The environment is one of those concepts that are easy to understand, but difficult to define. It is common, it is familiar, it is our home. But strangely, though obviously important to all of us, it has been efficiently ignored, that is, up until recently. People started to become aware of the danger that had been ironically created by themselves only after World War II. Our attitude towards the environment is inexcusable, but still, kind of natural, as people tend to relish in the indifference that springs from the comfort of the present. Due to the pressing international need to protect the environment, countries around the world have promised one another to protect the environment by means of international legally binding instruments and political documents (such as the 1972 Stockholm Declaration, the 1992 Rio Declaration, the 1998 Aarhus Convention and many other conventions with clearcut targets, concerning specific regions of the planet). However, these instruments mainly institute procedural obligations (and, consequently, procedural rights for

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people) for countries to take appropriate measures to protect the environment. They are compulsory in order to “facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided” (Principle 10 of the Rio Declaration). It has been noted that the focus on procedural rights to the detriment of substantial ones arises from the states’ concern that trying to enforce the latter in the context of environmental variability is most likely bound to fail (Shelton, 2010, p. 4). The relevant issue that remains is whether there is a substantial right to a healthy and proper environment guaranteed for humans by a legal binding document that would entitle them to seek redress in case of an infringement. This is achievable only where an international jurisdiction exists. I will further focus my attention on the most successful European jurisdiction, the ECtHR. This Court enforces the European Convention on Human Rights (hereinafter the Convention) as a legal binding instrument signed by the member States of the Council of Europe. It establishes whether or not a State has infringed on a right guaranteed for Europeans by the Convention. The significant question is: does the Convention provide the right to a healthy environment? Not even remotely. It might seem strange that such a powerful human-rights instrument does not mention anything about the environment, despite its current importance for humans. Still, we must not forget that the Convention was signed in 1950. The reason no environmental aspect can be found in it is that the drafters did not foresee that the environment would come to be an international priority. But the ECtHR soon realised its importance, though not precisely at this macro level.


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The Convention protects a limited number of fundamental rights. So when the ECtHR started to be confronted with individuals seeking to have their right to a proper environment protected, it had no other choice but to dismiss all applications as ill-founded from the perspective of subject-matter jurisdiction (ratione materiae). The reason is that the right invoked in these applications was not provided by the Convention (ECtHR, Dr. S. v. the Federal Republic of Germany, 1969; X and Y v. the Federal Republic of Germany, 1976). However, as time passed, this detail did not stand in the way of the ECtHR. Though not legally able to extend the protection of the Convention to other unmentioned rights, the ECtHR was creative enough to indirectly accomplish this by means of interpretation and by moving the spotlight to other expressly guaranteed rights. The resourcefulness of the Court should be appreciated, even more due to the fact that it managed to indirectly bring environmental aspects into the Convention’s protective range (García San José, 2005, p. 6) without transgressing its jurisdiction ratione materiae. The ECtHR motivated its position by stating: ‘the Convention is a living instrument, to be interpreted in the light of present-day conditions’ (ECtHR, Hatton and Others v. the U.K., 2003) and by reiterating that a dynamic and progressive approach is necessary to accomplish its mission. That is to guarantee rights that are ‘practical and effective, not theoretical and illusory’ (Shelton, 2010, p. 7). Consequently, the Court found that environmental aspects are closely interlinked with other rights, under many aspects. It initially discovered that some of the mentioned rights (such as those protecting health and ultimately life) may be directly affected by adverse environmental conditions, giving potential rise to violations. Also, such ill factors can constitute legal basis for other procedural rights of citizens, such as the right to be informed, to participate in decision-making processes concerning environmental issues and to enjoy access to court in these matters. Finally, this issue can be viewed from a different perspective. It is a well-known fact that some of the rights protected by the Convention are qualified rights, which means that

they can be subject to legitimate limitations. Therefore, the protection of the environment may constitute a legitimate aim that justifies interference with these rights. For instance, it may interfere with the right to peaceful enjoyment of possession (Council of Europe Publishing, 2012, p. 8). The European Commission for Human Rights (a special tribunal that had previously functioned alongside the ECtHR as an application filter) was the first entity which warned that improper environmental conditions could interfere with some of the conventional rights (The Commission, Arrondelle v. the U.K., 1980 - noise; Baggs v. the U.K., 1985 - noise; Powell and Rayner v. the U.K., 1990 - noise; Zander v. Sweden, 1992 - water pollution). Moreover, it noticed that the protection of the environment could very well fit into the ‘legitimate aims’ category requested by the derogatory clauses of Articles 8 to 11 and Article 1 of Protocol 1. This condition is required by the Court in its analysis of the legitimacy of interference on behalf of the states, in respect to the rights provided by the previously mentioned articles (The Commission, Hakansson and Sturesson v. Sweden, 1987; Pine Valley Development Ltd. and others v. Ireland, 1989; Allan Jacobsson v. Sweden, 1995). Ever since, the Court has provided some landmark decisions, especially in matters such as pollution. In the judgement of Powell and Rayner v. the U.K. (1990), the applicants complained of excessive noise caused by air traffic from Heathrow airport. The Court identified no violation of Article 8, since the state had not exceeded its margin of appreciation. In this context, it is important to underline that in environmental matters, the Court has recognised a wide margin of appreciation in favour of the Contracting States (Anton and Shelton, 2011, p. 501). Article 8 is a landmark of the case-law in question as it guarantees protection of home and private life. In some of its cases concerning adverse environmental conditions, the Court has found that there were some interferences with the provisions of this article. For instance, in the famous case of Lopez Ostra v. Spain, 1994, Mrs. Lopez Ostra complained of inconveniences produced by a waste-plant situated a few meters away 61


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INTERNATIONAL FOCUS from her home. The Court concluded that the state had not respected its obligation to strike a fair balance (Christoffersen, 2009, pp. 192-193) between the town’s economic well-being and the applicant’s effective enjoyment of her rights (García San José, 2005, p. 13), these amounting to a violation of Article 8. Consequently, an issue will arise under Article 8 if an environmental factor seriously affects the private life or home of the applicant. When this violation results from an act of the state, the Court will examine whether the adopted measure was provided by the law, followed a legitimate aim, and was proportionate to the aim pursued (Mowbray, 2007, pp. 596-598; Council of Europe Publishing, 2012, p. 20). If so, no violation of Article 8 will be found. Even though case-law revolves around the right to private life and home (ECtHR, Fadeyeva v. Russia, 2005; Taşkîn and Others v. Turkey, 2005; Hatton and Others v. the U.K., 2003), I believe Article 8 is also applicable when sole physical integrity of a person is affected. The reason is that this article has been indeed found to safeguard the aspect of private life (ECtHR, Bensaid v. the U.K., 2001). I will further analyse a remarkable relevant case against Romania. In Tătar v. Romania (EctHR, 2009), the applicants lived near a gold ore extraction plant, in Baia Mare. They frequently complained to the authorities that use of sodium cyanide in the extraction process entailed significant risk to their health. The assurances given by the authorities remained meaningless when a large quantity of polluted water spilled into various rivers, crossing several borders and affecting the environment of several countries. Although no official document could establish how much of a threat the company’s activity posed for citizens, based on the internal environmental studies subsequent to the spilling, the ECtHR concluded that a serious and concrete risk existed for the applicants’ health. Therefore, the State failed to comply with its positive obligations to adopt reasonable and sufficient measures in order to protect the well-being of the applicants by safeguarding the environment (ECtHR, Tătar v. Romania, 2009). It is interesting that the Court emphasised the importance of the precautionary principle, first established in the Rio Declaration. It mainly states that a substance 62

or activity posing a threat to the environment must be prevented from adversely affecting the environment. This measure is to be respected even if there is no conclusive scientific proof linking that particular substance or activity to environmental damage (Cameron and Abouchar, 1991, p. 3). It can be perceived as a `better safe than sorry` guiding principle. Besides Article 8, Article 2 is also likely to be applicable in environmental cases as it ensures enhanced protection of people’s health by safeguarding life. In the case Öneryildiz v. Turkey (ECtHR, 2004), an explosion occurred on a municipal rubbish tip, killing thirty-nine people. The Court concluded that the State did not act in respect to its positive obligation to take appropriate measures to protect the lives of the applicants, as the danger was concrete and foreseeable (Council of Europe Publishing, 2012, p. 37; Mowbray, 2004, p. 16). Therefore, Article 2 had been violated. It should not be understood that positive obligations in environmental matters are different than the common ones that are incumbent upon the States by virtue of the ECtHR’s case-law (Mowbray, 2004, pp. 4-6). However, in this particular field, analysis of case-law proves specific positive obligations have also been established to be incumbent upon States. Positive obligations are obligation of means (‘de moyens’), not of result. This means that the State is not to be held liable if it diligently does everything in its power to attain the desired outcome and to protect the rights of its citizens, even if the efforts do not eventually pay off (Hofstötter, 2004, p. 533). Specific obligations are related to the rights of individuals to be active participants in decision-making process regarding environmental issues. Specifically, individuals must be thoroughly informed of possible measures that could affect their lives and to be able to make representations to the public authorities in order to express their position. Where public authorities have to deal with complex issues of environmental and economic policy, the decision-making process must involve appropriate investigations and studies in order to predict and evaluate in advance the effects on the environment. This should be done in order to keep a


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fair balance between the various conflicting interests at stake. Public access to the conclusions of such studies and to information which would enable individuals to assess the danger to which they are exposed is crucial (ECtHR, Hatton and Others v. the U.K., 2003). The Court is therefore competent to assess the substantive merits of the government’s decision to ensure that it is compatible with Article 8. It may also analyse the decision-making process to verify whether interests of the individuals have been taken into consideration (Council of Europe Publishing, 2012, p. 89). However, this does not mean that decisions can be taken only if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided (ECtHR, Hatton and Others v. the U.K., 2003; Tătar v. Romania, 2009; Taşkîn and Others v. Turkey, 2005). In any case, there must be a possibility for individuals to appeal such decisions to the courts if they consider that their opinions have been ignored (Harris, O’Boyle, Bates and Buckley, 2014, p. 584). A significant aspect that greatly influences the Court’s decision is the presence of environmental impact assessments, as shown in Tătar v. Romania. In this case, the finding of a violation of the Convention was mainly based on the authorities’ lack of prior assessment of risks (Council of Europe Publishing, 2012, p. 91; Harris, O’Boyle, Bates and Buckley, 2014, p. 584). Regarding the environment as a ‘legitimate aim’ was mainly established by the Court in the context of Article 1 of Protocol 1 (protection of property). In Hakansson and Sturesson v. Sweden (ECtHR, 1990), the applicants had bought an agricultural estate at an auction, but later found that if they did not acquire a specific permit to retain their property, they would have to resell it. Not being able to obtain the permit, their property was sold at a compulsory auction. The ECtHR stated that the measure was legitimate as it was motivated by the general public interest (rationalization of agriculture), that is, the environment (García San José, 2005, p. 17). In Fredin v. Sweden (ECtHR, 1994), the applicants owned several plots of land, one also comprising a gravel pit. They were allowed to exploit gravel until a law was enforced, allowing authorities to revoke their permits, which indeed occurred.

The Court concluded the measure was legitimate as it was driven by the desire to protect the environment. Furthermore, it was foreseeable for the applicants that their exploitation would not last indefinitely. The environment may also constitute a genuine aim in the analysis of the legitimacy of interference in Article 8, as shown in the case of Coster v. the U.K. (ECtHR, 2001). The applicants were of Roma ethnicity and wanted to station a caravan on their land. However, the authorities did not grant them permission because the stationing of a caravan would have interfered with the land planning policy. The Court admitted that in matters such as land planning, the States enjoy a wide margin of appreciation and the protection of environmental aesthetics is a legitimate aim in the meaning of the derogatory clause of Article 8. In conclusion, at a first glance, it might seem as though the Court fails to safeguard the environment in cases in which it is obviously damaged, rejecting some applications which aimed to put a stop to environmental degradation. Yet, we should not forget that the Convention is an instrument created for people. This is why an application is admissible only when based on infringements on the rights of Europeans. The Court is not competent to censor the states’ behaviour in matters which do not affect the citizens’ conventional rights, regardless of any environmental damage. However, irrespective of an explicit provision regarding the environment in the Convention, the ECtHR extended the protective shield of the Convention to important environmental aspects when the right to a healthy environment interfered with the rights guaranteed by the Convention. By this, the ECtHR enhanced the protection of other rights, complying with the duties the Court had committed to. I believe the Court’s creative efforts of interpretation of the Convention to be a relevant step in enforcing respect for the environment. In my view, the environment should be a world-wide top-priority for all countries simply because without a habitable environment, all the other international issues are at risk of becoming irrelevant.

By Sabrina Matei

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Special report: On the Refugee Crisis • • • •

Refugee Status Determination Procedures across the World Report on Human Rights violations during the refugee crisis The refugee crisis, through the lens of the EU and the UN The Refugee Definition within the European Union’s Protective Framewo


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SPECIAL REPORT Refugee Status Determination Procedures across the World The Office of the United Nations High Commissioner for Refugees in the international agency which sets the main standards concerning refugee related problems, such as the refugee status determination procedures, ensuring that their rights Alexandra Mureșan are respected. However, the UNHCR has an advisory role, each country being responsible for establishing rules regarding asylum and granting refugee status to vulnerable people, in accordance with the guidelines of the UNHCR. In the next part of this section, we will analyse the particularities of the refugee status determination procedures in a few law systems around the world, as well as emphasise the rights of asylum seekers and refugees. JAPAN Even though Japan has one of the best refugee assistance programmes, the country’s policy towards asylum seekers has been quite strict. One of the reasons the authorities deny a large part of the applications is the fact that the funds assigned to resettling refugees are lower compared to the ones of other states. Any person who seeks asylum has to fill in an application (shinsei) and address it to the Japanese Government through any immigration office of the Ministry of Justice. The applicant is called 30 66

for one interview (at least) with an immigration officer, being required to bring identification documents (such as identity cards, passports, documents attesting party membership, school certificates) and any other evidence to support the claim. Using false information to obtain refugee status is punished by fine and/or penal servitude or imprisonment. Processing the asylum application may take up to several months, but in exceptional cases it can take a few years. During this time, the person who seeks asylum may obtain permission for provisional stay, which prevents him/her from being detained. The applicant can appeal the Immigration office’s rejection decision, at first at the immigration office and then, if the appeal is denied, through a court review. However, being denied the refugee status does not mean the person will necessarily be subject to detention or deportation. In some situations, the Japanese Government may offer the Special Permission to Stay on Humanitarian Grounds (Zairyu Tokubetsu Kyoka). Asylum seekers who are eligible to receive assistance based on criteria established by the Refugee Assistance Headquarters (RHQ) receive monthly allocations and may have medical expenses covered. They can also be offered legal counseling services by the Japanese Legal Aid Association (with free counseling each Thursday). Furthermore, there are NGOs which offer social and legal counseling, job placement support, and limited financial assistance. The people recognised as refugees receive longterm resident status in Japan, which is renewable after one or three years. Refugees can benefit from the National Health Insurance, accommodation in Takadanobaba, Tokyo, and different integra-


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tion programmes (including language courses, garding the asylum claim, answer the questions job placement support, and financial assistance). of the caseworker, and bring any evidence which can sustain the claims. The asylum seeker can ask THE UNITED KINGDOM for a legal representative and support for paying Contrary to expectations, the British government the legal advice. has been somewhat conservative concerning the Usually, the authorities usually make a decision United Kingdom’s asylum policy. UK’s perspecin six months. If they give permission to stay, the tive is regarded by many EU leaders, analysts, and refugee has the right to settle in the United Kingeven British legal professionals as inappropriate. dom for five years. After five years, the refugee However, the British authorities have promised can apply to settle in the UK. If de application is to take in a few tens of thousands of refugees in denied, the applicant might be asked to leave the the following five years. country or forcefully removed from the United The asylum seekers must register the applica- Kingdom. However, the asylum seeker may aption upon arrival in the United Kingdom, at the peal against the caseworker’s decision. Border Office, or, for those who are already in The UK offers housing and financial support to the UK, soon after becoming eligible under UNasylum seekers in need. This includes accomHCR criteria. After this step, the applicant will modation and breakfast, a limited amount of be screened, a procedure which intends to idenmoney, sometimes free healthcare (which covers tify the person making the application. During expenses for dental care, prescriptions for medithe screening, the asylum seeker will be photocine, eyesight tests and glasses). Children (aged graphed, have his/her fingerprints taken, and five to seventeen) must attend state schools and meet an immigration officer. Documents attestmay also get free meals at their school. Pregnant ing identity, such as identity certificates, birth women and mothers who have children under or marriage certificates, passports, travel docuthe age of three are given extra payments. ments, police registration certificates, and other written evidence to support the application SWEDEN should be brought at the interview. The applicant Up until recently, Sweden’s policy concerning can ask for an interpreter if he/she does not speak refugees had been generous, with both the auEnglish. thorities and the population supporting the reMost of the time, after the screening, the asylum settlement programmes of asylum seekers. Howseeker receives an application card or a standard ever, the government seemed to change its view, acknowledgement letter, but in some situations after it failed to reach an agreement with the he/she might be detained at an immigration re- Danish authorities regarding the management moval centre. However, children, elderly, families of the tense situation created at the border bewith children, pregnant women, victims of traf- tween Sweden and Denmark. As the Swedish auficking, or people suffering of mental or physical thorities voiced their concern over reaching the illnesses cannot be subject to detention. maximum capacity for accepting refugees, some asylum seekers were denied entry into the counSoon after the screening, the applicant will be try from the Danish territory. Later, Denmark interviewed by a caseworker, during which the blamed Sweden for its mild policies and urged asylum seeker should provide information rethe Swedish side to take in the asylum seekers 67


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SPECIAL REPORT who were trapped at the border.

their refugee status determination have the same rights concerning health care as Swedish chilAccording to the Swedish Migration Agency, in dren. the week leading up to November 4, 2015, around 9,200 applications for asylum were registered in Sweden does not offer accommodation for asySweden, the majority of them being from Syria, lum seekers. The authorities might give accomAfghanistan and Iraq, but also from Eritrea and modation to families with children under the age Somalia. of eighteen if there are enough places in accommodation centers. In case of emergency, Swedish People who seek asylum in Sweden are required municipalities get involved in accommodating to submit an application at a Migration Agency asylum seekers in some evacuation shelters, such application unit or at the border police (for the as sports halls or schools. Furthermore, private ones who are entering Sweden). However, Sweindividuals are encouraged to help asylum seekden offers two levels of protection for the ones ers with shelter, by registering at the Migration who are not eligible for the refugee status. The Agency. first one refers to the subsidiary protection based on European Union regulation, for the ones GERMANY who might be at risk of suffering injuries due to Taking in refugees has been regarded by the Gerarmed conflicts, who might be subjected to torman authorities as a historical and humanitarture, physical punishment, or other inhumane ian obligation. Germany’s recent, more permisor degrading treatment, or sentenced to death if sive approach to asylum, particularly to granting they stay in or return to their home country. The asylum to Syrians affected by war, has been quite other type of protection is the one offered in accontroversial. While most of the EU leaders and cordance with Swedish laws. German politicians supported this view, many In all these situations the person is granted a resi- other opposed to it over security concerns. dence permit, usually for an unlimited period of In 2015, Germany has received more than time. In order to respect the best interest of the 300,000 applications for protection status, out child, Swedish authorities have a series of special of which more than 80,000 people were granted rules that are applied when the person claiming refugee status. The top three countries which the refugee status is a child. In such cases, the have citizens who have sought refuge in Germachild has the right to speak and be heard, and ny are Syria, Iraq, and Eritrea. According to the his/her application may be assessed separately German Asylum Procedure Act, people seeking from the ones of his parents, as all of them might protection are transferred to a reception centre, have different reasons for claiming asylum. Furwhere they can apply for asylum. Their applicathermore, children have the right to be accompation is sent to the Federal Office for Migration nied by a parent, a public counsel or a trustee at and Refugees, which has a branch that will exthe hearings concerning asylum. amine it and take a decision. The Federal Office Asylum seekers are offered emergency health for Migration and Refugees assigns case workers care, with maternity care being offered to preg- who question each person seeking asylum about nant women. The children who are waiting for the reasons they need protection and about their 30 68


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travel route. While their application is analysed, and Refugee Board of Canada. asylum seekers are given the preliminary right to Those granted the status of protected person by stay in Germany. the Immigration and Refugee Board can apply The protection seekers who are granted refugee for a permanent residence in Canada. If the claim status receive a temporary residence permit and is rejected, the applicant might request a decision have the same rights as German citizens regard- review before being asked to leave the country. ing social welfare, social insurance, child beneCanada runs a resettlement assistance profits, and integration support. gramme for refugees who arrive in the country, CANADA which offers temporary accommodation and support in finding permanent housing. TemCanada has had one of the most positive attitudes porary health care services are available free of concerning asylum seekers thus far. Probably, charge for refugees and asylum seekers. The authis has roots deep in the history of the country, thorities have also set the Immigration Loans which had been built on immigration. Program, which is designed to help people seekThere are two ways a person can seek protection ing protection to cover the costs of their travel in Canada. The first one is at the arrival in any to Canada and of the documents needed to enter airport, seaport or land border, where an officer the country, as well as the expenses of medical will asses the claim and decide whether to report examinations required before travelling. it or not to the Immigration and Refugee Board THE UNITED STATES OF AMERICA of Canada (which is an administrative tribunal that makes decisions on immigration and refu- So far, the United States of America has been gee matters). However, the applications of asylum criticised over its response in the current refugee seekers arriving via the Canada-United States of crisis. Compared to other countries in the world, America border will be rejected, unless the asy- taking in a larger number of refugees would barely lum seekers have their family in Canada. This pressure the social system of the USA. However, rule has been introduced after Canada and the due to security concerns, the government does United States signed an agreement which obliges not soften its approach towards asylum seekers. people seeking protection to claim asylum in the In 2015, the United States of America resettled first safe country they arrive in. almost 70,000 refugees, most of them coming The second way of claiming refugee status is by from Burma, Iraq, and Somalia. However, the filling all of the forms in the application package, authorities are planning to accept more applicawhere the asylum seeker should mention any tions in the following years. The USA might acuseful identification and background informa- cept around 85,000 applications in 2016, out of tion, also stating the reason for requesting refu- which 10,000 places will be available to Syrian gee status. The next step is submitting the pack- refugees. The number of resettled refugees might age to any of the Citizenship and Immigration be 100,000 in 2017, which will probably be the Canada offices. Only the asylum seekers who largest number of refugees admitted in the councompleted all the forms are appointed for an in- try since the Balkan wars (in 1993, 142,000 peoterview with an immigration officer, who can de- ple were granted refugee status, as a response to cide if the claim will be heard by the Immigration the tense situation from the Balkans). 69


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SPECIAL REPORT There are two ways a person can request asylum. First one is through an affirmative process and it is applied if the person is located in the USA, regardless the fact that he/she is making the request at a border office or after a period of time from the arrival in the country. Nevertheless, the application must be submitted within one year after the arrival in the USA, with only a few exceptions. The application must be submitted to a Citizenship and Immigration Services officer, who will schedule an interview to determine if the person is eligible for the refugee status.

source of many disputes between the French and the British government, with both of them failing to integrate the people trying to cross the French – British border illegaly, via Calais. Recently, after the Paris terrorist attacks, the French government has asked for stricter controls at the borders of the European Union, in order to detect asylum seekers or illegal immigrants who use false ID cards or passports to enter the EU.

French authorities have struggled to manage the situation of the asylum seekers who previously reached France. One example is the rather problematic issue of the refugee camp situated on the outskirts of Calais, a city which also shelters many illegal immigrants. The camp has been the

POLAND

France received around 12,000 refugees in 2015, from which large numbers are citizens of Iraq and Syria. However, according to recent statisThe second way to apply for the refugee status tics, France rejects more than 74% of the applicais through a defensive asylum processing, if the tions of asylum seekers. person is considered ineligible at the end of an Before applying for refugee status, asylum seekaffirmative processing, or if the person seeking ers must register a claim at a Prefecture, providasylum is not legally staying in the US or not having information regarding their identity, civil ing proper documentation at a port of entry in status, travel documentation, and address (if the the country. In this case, the asylum seeker will asylum seeker already stays in France). They are be part of a procedure consisting of a removal given an asylum claim certification and advice on hearing in an immigration court with the Executheir rights and obligations throughtout the next tive Office for Immigration Review. steps of the procedure. The asylum seeker can appeal the decision denyLater, asylum seeker can officially apply for asying refugee status. In this case, the final deicision lum. The applications must be filled in with all will be given after the additional hearings with the required information in a complete manner, the Board of Immigration Appeals or, someaccentuating the reasons for submitting the aptimes, with federal courts. A person granted refplication. The asylum seekers shall write their apugee status receives emplyoment authorisation plications in French and submit it to the French and depending on several other factors, might Office for the Protection of Refugees and Statebe given financial and educational support, acless Persons. The asylum seeker can object the comodation, and health care assistance. decision on the asylum claim before the AdminFRANCE istrative Court.

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Poland has been one of the EU’s skeptics concerning asylum seekers. The Polish government did not completely reject the idea of resettling refugees in Poland, but asked for stricter border


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controls and efficient common refugee plans in the European Union. Poland received more than 8,000 applications in 2015 and granted refugee status, subsidiary protection, and humanitarian protection to 550 people. However, in 2015’s autumn, the country still had around 3,000 applications to assess. The majority of the protection requests came from Russia, but only a small number of them were admitted, the applicants being granted refugee status or any other form of protection. Even though only a few hundred applications came from Syrian and Iraqi citizens, none of the applications assessed by September 2015 were rejected.

Report on Human Rights violations during the refugee crisis Hungary According to Human Rights Watch and Amnesty International, Hungary has, since the beginning of the refugee crisis, changed its refugee law and policies, allowing the State to hold asylum seekFotis Kokkinis ers in detention centers, sometimes for weeks even, under poor conditions. The European Commission initiated two infringement proceedings (September 23) and sent a formal letter to Hungary (October 3), the first step to infringement proceedings, because of its partial failure to implement the legislation of the ‘Common European Asylum System’. Hungary has been holding asylum seekers in detention, some of which are vulnerable (unaccompanied children, physically ill, pregnant women) and has adopted a strict deportation policy, mostly to Serbia, but also the countries from where the individuals have fled.

The applications must be submitted to the Commander (or District Commander) of the Border Guard, which sends it to the Office for Foreigners. Elderly persons, persons with disabilities, pregnant women, persons in hospitals or imprisoned can submit their application via postal mail. The travel documents provided by the asylum seekers will remain at the Head of Office for Foreigners, but asylum seekers are given a temporary ID document, which gives them the right to stay in Poland, for an initial period of ninety days, then for six months. The validity of the ID document prolonged every six months by the Head of the Office for Foreigners until the authorities give Turkey the asylum seeker a final decision regarding his/ Since the beginning of the Syrian warfare, but her application. also because of other tension causing situations Those granted refugee status in Poland have the in the Middle East, Turkey has continuously same rights as Polish citizens, except the right been controlling its Western borders for refuto vote and some rights connected to the labour gees who were let inside the country as asylum market in the European Union. They are given seekers, but were trying to cross the country and the right to travel without a visa in the EU (but reach the European borders. In the summer of only for a period of three months) and can be 2015, though the flow of migrants and asylum part of an individual integration programme. seekers has increased dramatically and as a result the state has not been able to keep the peo By Alexandra Mureșan ple from passing to Mediterranean countries in 71


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SPECIAL REPORT any way the can. Turkey has, according to Amnesty International and Human Rights Watch reports, created detention camps for Syrian and Iraqi refugees. The conditions inside those camps have been dire for the refugees and the asylum seekers, with few or non-existent access to education, housing and health-care, despite the resources being dedicated and the positive legal actions and policy changes being implement by the authorities. The detention of refugees itself, and the circumstances under which they are being denied their freedom, is a clear infringement of international and domestic Turkish law, for the following reasons. i. It is considered arbitrary under international law (International Covenant on Civil and Political Rights, General Comment no. 35, Article 9 of the Human Rights Committee), since the article mandates that asylum seekers are to be detained only for a brief period of time and under conditions that do not jeopardize their health in any way, otherwise the detention is arbitrary and, therefore, unlawful. Most immigrants are held for several weeks to 2 - 3 months, until they are deported back to their countries, or until they find a route to Europe, which is unsafe and illegal. State officials also bare the obligation of informing the detainees of why they are being denied their liberty rights, an obligation not respected in the Turkish detention centers. ii. The detainees are denied all communications, even with relatives and their lawyer. This, under international law (International Covenant on Civil and Political Rights, General Comment No. 35, Article 9 of the Human Rights Committee), as well as the domestic Turkish law [Law on Foreigners and International Protection Art. 59(1), 68 (8, b)], is considered illegal and is a clear violation of the refugees’ and asylum seekers’ human 30 72

rights. The Turkish state has also deported more than a 100 people back to their countries, where they are at real risk of serious human rights violations and undergo life threatening situations. That is a clear violation of international law, taking into account that they have the right to personal safety and to seek asylum from persecution or other violations of their fundamental rights (principle of non - refoulement). F.Y.R.O.M The Former Yugoslav Republic of Macedonia has been a passage for people seeking asylum in Central European countries, since the refugee crisis began, and was been accused of discrimination between asylum seekers, and unlawfully detaining irregular immigrants, on the basis of protecting witnesses in cases of criminal prosecutions for smuggling. The state has been reportedly denying access to individual who could not verify they were from Syria, Iraq or Afghanistan, leaving them stranded in the borders with Greece. Many of those people tried to enter the country illegally were apprehended and detained in the Gazi Baba detention Center, under bad conditions, and were ill-treated according to reports from the Human Rights Watch. In July 2015, after a series of interventions, the government temporarily stopped detaining refugees and allowed them to cross the country, but only until they changed their policy in November. People in the detention center are being denied access to legal representation in order to challenge their detention and they are also denied their request to be informed about the basis of


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their detention, in other words, incommunicado detention, which is illegal. The state has also been holding many refugees on the basis of protecting them as witnesses for criminal proceedings against their alleged smugglers, even though no such right is given to them under domestic law. The detention is therefore arbitrary and illegal under international law. The Human Rights Watch and Amnesty International both report that the conditions under which the refugees in those centers are held are inhuman. The detention center is overpopulated (capacity of 120-150 people, right now about 400 detainees), with the result of people having trouble of finding where to sleep, bad quality nutrition and ill-treatment by the center’s staff, including beating, gender and nationality discriminating treatment. According to domestic law, refugees may be held for identity verification for no more than 12 hours, or after official approval, until their identity has been verified. Any further detention has no legal basis under domestic law. Under international law all detainees have the right to be informed of why they are being denied their freedom, an obligation not respected in the Gazi Baba detention center. They can only be detained if they are considered suspects of committing an offence, or in view of deportation or extradition. Since deportation would be illegal in this case according to international law, because of the dangerous conditions in the detainees’ countries of origin, their detention has no legal basis. Greece In the latest years, Greece has been a European reception center for a lot of refugees and asylum seekers from Asian countries. In 2013, reports have recognized problems in the Eastern Greek

borders with Turkey, basically because of the Greek government’s lack of organization and resources to properly receive, identify and institute the refugees, between their arrival and the completion of the necessary legal and administrative proceedings. A lot of people seeking to pass the borders between Turkey and Greece have been pushed back at the border, even though international and EU law prohibits such policies. Also, the Greek government has been reportedly executing collective expulsions of immigrants, even though EU law prohibits state members from expulsions of people whose case has not been individually examined, since there is a risk of refoulement (deportation of an individual who is under great risk of undergoing violations of his fundamental human rights in his country of origin). Even when not deported or pushed back, refugees were detained in detention centers under dire conditions and for long periods of time, because of the lack of administrative organization in order for their identification and asylum seeking procedures to move faster. Also, a big part of the detainees have been reported to be unaccompanied children, who, under international law, can be detained only as a last resort measure. Those children were at times held with adults because of the lack of facilities to receive them and the lack of funding by the government, which reduced the (EU) funding of such existing facilities. Until recently the Greek government has been receiving protest letters urging it to investigate police forces summarily conducting push backs and collective expulsions of refugees to the land borders with Turkey in Evros. There have also been reports from boat passengers trying to irregularly enter Greece, of unidentified individuals, taking the boats’ engines and even toeing 73


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SPECIAL REPORT the boats back towards Turkey or tearing rubber pending on outside factors such as wars or the boats, risking the safety of the passengers. possibility to leave their country of origin. They have, for example, varied from 425 000 applica By Fotis Kokkinis tions for EU-27 States in 2001 down to under 200 000 in 2006. In 2012, there were 335,895. The refugee crisis, through the In 2013, there were 434, 160 applications (BBC, lens of the EU and the UN 2014). As a comparison, the number of persons seeking asylum from non-EU countries in the EU-28 during the third quarter of 2015 Without a doubt, the reached 413 800 (Eurostat, 2015). It can thus be present refugee crisis is concluded that, taking into account the present one of the greatest that situation, it is more needed than ever for the EU the modern world has member states to develop a clear and complete encountered. Internaaction plan regarding refugees. tional organisations, together with member One of the first elements that should be taken states, have tried to ap- into account is the difference between asylum ply all existent legisla- seekers and refugees, whose legal definition is tion and measures, as presented in the 1951 Geneva Convention rewell as develop new lating to the Status of Refugees that has been Georgiana Caramihai ones, in order to re- signed and ratified by all EU Member States. spond to the needs of An asylum seeker is a person submitting a rethe refugees. The present report is going to fo- quest for refugee status. The asylum seeker is cus on the European Union (EU), as well as on not guaranteed to have refugee status unless the United Nations (UN), on the measures they the Member State decides they qualify, on the proposed in order to respond to the refugee cri- basis of a clear legal procedure. On the other sis and on their framework legislation regard- hand, pursuant to Article 1 of the Convention, ing asylum seekers. The report is also going to a refugee is a person who is outside of his countake into account the possible sanctions that can try of nationality, based on a well-founded fear be imposed on Member States, if they refuse to of being persecuted – definition which generreceive refugees, as well as on the possible col- ally applies to people fleeing warzones (Cantor, laboration of the two organisations for a better Durieux, Hampson, Mandal, 2015). functioning of the whole system. The framework of the EU legislation on asylum The European Union can be found in the Treaty on the Functioning of the EU (TFEU), as well as in the EU Charter There are approximately 1.5 million recognised of Fundamental rights. refugees living in the 28 Member States of the European Union, Norway and Switzerland. According to TFEU, Article 67 (2), member Asylum requests flows are not constant, de- states have the obligation to frame a common 30 74


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policy on asylum, which should be fair towards third-country nationals. Moreover, according to Article 78 of the same document, the Union is obligated to develop a common policy on the protection of asylum seekers, in accordance with the Geneva Convention of July 28, 1951, and the Protocol of January 31, 1967 relating to the status of refugees. The common measures will refer to a uniform status of asylum and protection, as well as common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status. Finally, according to Article 18 of the EU Charter of Fundamental Rights, the right to asylum shall be guaranteed in accordance to the TFUE, as well as to the Geneva Convention, mentioned above.

the EU and non-EU countries (European Commission, 2015). The latest developments on this issue have referred to creating a stronger cooperation in order to ensure that asylum seekers are treated equally, as well as to create fairer, faster and more transparent and efficient asylum decisions, as well as to provide the necessary support to asylum seekers with special needs and unaccompanied minors. As a consequence, a series of EU legislation on asylum seekers has been revised. The revised Qualification Directive establishes the grounds for granting international protection to asylum seekers. The revised Dublin Regulation clarifies the level of protection of asylum seekers while establishing the authority that is responsible for examining their application, and clarifies the rules regarding the cooperation between states in that case. The revised EURODAC Regulation regulates the access to the EU database of the fingerprints of asylum seekers (European Commission, 2015).

Based on this framework, as well as on their present needs, the EU member states have established a Common European Asylum System (CEAS) since 1999. During the past years, it has developed in order to harmonise minimum standards for asylum seekers, as well as to create a financial solidarity between member Regarding specifically the current refugee cristates, through the European Refugee Fund. sis, the Council and the Commission of the EU As a consequence of the responses to a 2007 have established a series of measures, created in Green Paper (Commission of the European order to protect the functioning of the SchenCommunities, 2007) and of the results of an gen area and to reduce the pressures in the curevaluation on the implementation of the ex- rent context. The main points have been preisting instrument, the European Commission sented in the Council Conclusions on Measures created a Policy Plan on Asylum, presented in to handle the refugee and migration crisis, of 2008, by way of which three pillars for the de- September 2015, as well as in the State of Play: velopment of CEAS were established: bringing Measures to Address the Refugee Crisis of Demore harmonisation to standards of protection cember 2015. by further aligning the EU States’ asylum legThe main points refer to the fact that the EU has islation; effective and well-supported practical been encouraging member states to increase recooperation; increased solidarity and sense of ception capacities. It also established hotspots responsibility among EU States, and between in Italy and Greece, with support of the other 75


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SPECIAL REPORT member states, as well as other essential members of the international community. In order for a better organisation to take place, member states have to communicate their capacities for relocation, while maintaining a close cooperation to Greece and Italy, taking into account their attributions. While respecting the fundamental rights of all the people concerned, Member States have the possibility to take certain measures regarding asylum seekers, in the case of their non-cooperation, such as coercive measures or non-admissibility of subsequent asylum applications of individuals concerned. Other international actors, such as Frontex, will offer their support in order to help member states fulfil their obligation to do adequate controls. That is an essential measure for member states because, even while fulfilling their obligation regarding asylum seekers, they also need to ensure the safety of their own citizens.

Regarding the budgetary measures, the European Commission has established â‚Ź1.7 billion of EU funding in 2015 and 2016 in order to address the refugee crisis and the subsequent issues. The money will be used to provide emergency assistance to the most affected EU member states, but also to offer assistance and humanitarian aid in third countries.

In regard to sanctions, there is no mention of such a system in any European law regarding asylum. However, after some of the member states have refused to abide by the quotas established by the EU, authorities in Germany, as well as in other Member States that have taken the lead in the refugee crisis, proposed to impose sanctions on countries that do not want to take part in a proposed new relocation scheme. However, based on the lack of legal basis, the proposal has not been implemented yet. While international treaties, as well as the EU law, encourage states to take in refugees, as well as obliges them to create uniform rules regarding The EU also decided to invite Europol to acasylum seekers, there is no formal obligation to celerate the development of the European Miaccept the quotas that have been initially progrant Smuggling Centre (EMSC), in order to posed. strengthen its capacity to support member states in better preventing and fighting against The United Nations migrant smuggling, which represents one of the As far as the UN is concerned, the main agenmost pressing problems nowadays. The memcy that deals with problems related to refugees ber states also defined a common information is the United Nations High Commissioner for strategy addressed to asylum seekers, migrants, Refugees (UNHCR). The Framework for Durasmugglers and traffickers, in order to discourble Solutions for Refugees and Persons of Conage them to embark on dangerous journeys, but cern represents the basis of all decisions and also to explain the EU rules on migration in orrecommendations that have been made regardder to have better transparency – it is essential ing the issue. The Framework mainly refers to for migrants to understand the conditions for the cooperation between states in order to find their stay in EU member states, as well as the solutions for the reintegration, rehabilitation possible sanctions if they break the law. and assistance for refugees, but also establishes 30 76


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the possibility to integrate them locally. With regard to the recent crisis, the UN has acted on two different levels: while the Security Council has been leading debates with different representatives of the international community in order to establish peace in the areas affected by war, the High Commissioner for refugees has been working to assist asylum seekers, as well as countries that have been trying to accommodate them. Recent resolutions draw attention to the fact that humanitarian law should be respected at all times when dealing with ISIL and other terrorist organisations, as well as with refugees (SC/12132) and try to create a roadmap for the peace process in Syria, as well as set a timetable for talks on that matter (Resolution 2254 (2015)). The collaboration between the EU and the UN has mainly been coordinated by the High Commissioner for Refugees. In its reports, the UNHCR declared its faith that Europe has the means to manage the unprecedented influx of refugees and migrants and should combine resources of all its member states in order to organise efficient rescue operations. While remarking that Europe has dealt with large numbers of refugees before, the UNHCR noticed that a collaborative European approach is necessary in order to manage the current crisis. On that topic, UNHCR recommended that EU member states should have a more equal share of the responsibility, as not all countries agreed to take in refugees. While all EU member states are capable of providing assistance, their strength is based on their joint forces.

resolve the increased immigration to Europe. 150,000 migrants were rescued during the operation. UNHCR has also urged countries that don’t share the responsibility of taking in immigrants, such as Lebanon and Jordan, to fund the EU member states in order to help them on that matter. (International Business Times, 2015) UNHCR has also provided assistance regarding actions to prevent the loss of lives at sea, by strengthening the cooperation between the EU, UN, civil society, the International Maritime Organization, the International Organization for Migration. By their cooperation, they are trying to develop strategies that are consistent with international and European law, as well as to help governments implement these strategies in a uniform manner. Adequate reception conditions and procedures made for responding to the specific needs of asylum-seekers are essential, especially separated and unaccompanied children. As a consequence, the UN agency has also contributed to the drafting of national legislation on these matters, in order to make sure that the rights of all those involved are respected (UNHCR, 2015).

It can be concluded that the refugee crisis of 2015 has made a great impact on both the EU and the UN. While both international organisations had a clear framework regarding asylum seekers, it was not complete enough to support this year’s large influx of refugees. The cooperation between the two organisations has helped create a more clear strategy, as the UNHCR has been able to provide the EU with help from Assistance-wise, UNHCR has been funding a other essential actors of the international comland version of Mare Nostrum, a year-long na- munity. While there is no provision in the interval and air operation set up by Italy in 2013 to national law regarding the possibility to sanc77


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SPECIAL REPORT tion states that refuse to take in a certain quota of refugees, the cooperation between the EU member states and the support provided by the UN has helped, in my opinion, more countries make a contribution on that matter.

By Georgiana Caramihai

The Refugee Definition within the European Union’s Protective Framework Europe, today, is undoubtedly facing one of the most significant migration flows in its history, with a total of 990,671 migrants having crossed its external borders in 2015, according to the International Organisation for Migration (IOM, DecemAngeliki Tsanta ber 18, 2015). Hence, it is of no surprise that the migration crisis was the focus of the informal European Union Summit that took place last September, as well as in the agenda of the European Council both in October and December 2015. While much of the debate around these meetings centred on the proposals for the relocation of asylum seekers from Member States at the EU’s external borders to states which have few arrivals, there is another important question that must also be answered - whether those seeking asylum in the EU countries are refugees, a special category of migrants who, under international law, are guaranteed specific protection by their 30 78

host state, or economic migrants, wishing to improve their circumstances, which the consequence that the EU could begin voluntary repatriation procedures. The Qualification Directive 2011/95/EU establishes the standards on which asylum is granted within the EU, in accordance with Article 78 of the Treaty on the Functioning of the European Union and Article 18 of the EU Charter of Fundamental Rights. All three documents refer to the Geneva Convention of 1951 and the New York Protocol of 1967 relating to the Status of Refugees, which provide the EU with an internationally accepted definition. The aim of this report is to present the historical context in which this definition was adopted and analyse the criticism it has received, taking into consideration the EU’s protective framework. 1. Birth of International Refugee Law The current migration crisis is not the first Europe has faced. On the contrary, it was after World War I that the first accords emerged, when the international community was called to address the flight of a large number of Russian and Armenian refugees. Those were the Arrangement with Regard to the Issue of Certificates of Identity to Russian Refugees in 1922 and the Arrangement Relating to the Issue of Certificates of Identity to Russian and Armenian Refugees in 1926; two agreements that are thought to represent a largely humanitarian phase of refugee law (Hathaway, 1990, p. 136). This is because they both encompassed an effort to regularise the status of a large number of people who had been deemed stateless, without examining the cause of each


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individual’s flight. However, this protection was limited only to those groups of migrants who had fled as a result of World War I, and later to the refugees from Nazi Germany before World War II (Convention Concerning the Status of Refugees Coming from Germany, 1938).

Consequently, the 1951 Convention initially applied only to persons who became refugees as a result of events occurring before January 1, 1951 in Europe. It was in 1967 that the New York Protocol expanded the Convention’s scope, by removing this temporal and geographical limitation. As of April 2015, the Geneva Convention and its Protocol have been For the refugees who were forced to flee Euratified by 148 states (UNHR, 2015). rope during, or as a result of, World War II, a human rights perspective of refugee law was 2. The 1951 Refugee Definition adopted (Hathaway, 1990, p. 139). The compeAccording to Article 1A of the 1951 Conventent authorities at the time, namely the Intertion, a refugee is a person who ‘owing to wellgovernmental Committee on Refugees (ICR) founded fear of being persecuted for reasons and the United Nations Relief and Rehabiliof race, religion, nationality, membership of a tation Administration (UNRRA), examined particular social group or political opinion, is each asylum seeker’s motives and guaranteed outside the country of his nationality and is protection only to those who were forced to unable or, owing to such fear, is unwilling to emigrate ‘on account of their political opinavail himself of the protection of that country.’ ions, religious beliefs [or] racial origin’ (ResoBefore any further analysis, it should be establution of the Committee, I.C.R. Doc., July 14, lished that an asylum seeker can be granted 1938). the protection of a refugee, regardless of the It was with this legal background and under fact that they might have entered the territhe specific post-war conditions that the Ge- tory of their host state unlawfully. The 1951 neva Convention of 1951 was drafted. While Convention explicitly states that ‘refugees [...] the Secretary General of the United Nations should not be punished for their illegal entry’ and states like the United Kingdom and the (Article 31). Soviet Union called for a convention that A refugee is, hence, an involuntary migrant would address all unprotected persons, France who is forced to flee from his/her home state and the United States of America argued that out of fear of persecution either by the state there was a pressing need only for a one that itself or by a group that controls a significant would protect the World War II’s refugees part of its territory and from which the state (Hathaway, 1990, p. 149). Further, with reitself is unwilling or unable to provide protecgards to other refugee movements around the tion (Clayton, 2012, p. 463). However, Article world, European states maintained that their 1F provides for three main limitations on refneeds would be better met by regional rather ugee status: even if a person could be classified than international documents, insisting on as a refugee under Article 1A, he/she is not following a case by case classification of refuawarded with international protection if he/ gees, rather than adopting an internationally she has committed crimes against humanity, a accepted definition. 79


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SPECIAL REPORT serious non-political crime, or has been guilty of acts contrary to the purposes and principles of the United Nations, a broad provision that was included to exclude terrorists from the Convention’s protective scope.

(Hathaway, 1990, p. 162). Typically, persons in need in Africa and Asia are assisted by the United Nations High Commissioner on Refugees (UNHCR) on location, providing them with food and shelter, financing for their education and legal assistance, and arranging for Evidently, refugee status and protection heavtheir transportation and local resettlement. ily depend upon the concept of ‘persecution’ However, the current situation proves the for reason of one of the grounds prescribed shortcomings of this practice. in Article 1A. It is on account of that concept that the refugee definition is highly criticised 3. Protection awarded to refugees within the today for being of ‘marginal value’, since per- EU secution is a ‘narrow, under-evolved notion of It has been argued that through its attempts to protection’ (Ayres, 2015). Hathaway (1990) build the Common European Asylum System finds that the 1951 Convention provides for a (CEAS), the European Union has overall imnarrow definition that does not serve the best proved the protection standards for refugees interests of the refugees themselves, but the (Kaunert, Léonard, 2011). states’ interests to regulate migration; a compromise between the reality of involuntary Article 2 (d) of the Qualification Directive remigrants and a sovereign state’s prerogative to peats the 1951 refugee definition. However, in control its borders. Chapters II and III, it includes detailed provisions for the assessment of applications for Furthermore, since the 1951 Convention was asylum, clarifying the meaning of the term meant to address only the problem of the Eu‘persecution’. Specifically, Article 9 provides ropean refugees who had fled as a result of Member States with a list of acts that are sufWorld War II, its definition is very limiting ficiently serious to qualify as severe violations and cannot be applied to most current situaof a person’s human rights, constituting thus tions. Ayres (2015) brings the example of miacts of prosecution: physical, mental or sexual grants from the Democratic Republic of Conviolence discriminatory measures, or denial of go (DRC), whose homes had been destroyed judicial redress, for example. as a consequence of the instability in the area. Even though these people would not face ar- Further, Article 10 analyses and defines the rest if forced to return to DRC, they would not reasons behind this prosecution, while Artihave the means to survive. cle 4 (4) provides that previous prosecution is a serious indication of an applicant’s wellSince the 1967 Protocol did not bring any founded fear. Finally, Article 13 imposes a contextual change to Article 1A, most Third duty on Member States to grant asylum to the World migrants are de facto excluded from its persons who meet the aforementioned criteprotective scope; they often leave their homes ria. because of natural disaster or political turmoil 30 80


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What is, though, extremely important about the Qualification Directive is that it includes provisions for the qualification of migrants for subsidiary protection in Chapters V and VII. Subsidiary protection is a step lower than asylum and is granted to those who do not qualify as refugees but are able to prove that, if returned to their country of origin, they would face a real risk of serious harm (Article 2f), namely, the death penalty, torture or inhuman treatment or serious threat to their lives by reason of indiscriminate violence in situations of international or internal armed conflict (Article 15). Finally, it must be noted that even if a migrant is not granted asylum status and protection, a state has to refrain from returning him/her to their country of origin where they may face torture or cruel, inhuman or degrading treatment or punishment. This is the principle of non-refoulement, the cornerstone of international refugee law (Article 33 of the 1951 Convention, Article 21 of the Qualification Directive).

terranean Sea arrivals in Europe during 2015 were of Syrian nationals. Taking into consideration the Syrian Civil War, as well as the general instability in the area, one would conclude that Syrian migrants qualify at least for subsidiary protection, if not for the full one. Historically, during such mass movements in the aftermath of a conflict, when the reasons for fleeing were evident and there was no capacity to conduct individual interviews, such groups were often declared prima facie refugees (European Parliament Briefing, 2015). However, it is true that thousands of the migrants come from states that have been classified as ‘safe’, as it is also true that most EU Member States do not have in place the institutional framework and the necessary resources that would allow them to screen and accommodate such a large number of people.

In conclusion, it is apparent that even though the current asylum framework provides for a well-rounded protection for refugees, in the face of the 2015 migration flow the EU must act decisively and strategically not only for the Conclusions relocation of asylum seekers within its borders and the implementation of the CEAS, but Whatever agreement the EU Member States also to ensure that protection will be granted reach on the distribution of asylum seekers to those in need through a re-examination, if among them, they will still have to decide to need be, of the refugee definition. whom they will grant international protection. While the CEAS sets out minimum standards By Angeliki Tsanta and procedures for processing and assessing   asylum applications, many EU states have yet to properly implement them (ECRE). Hence, the EU’s next step must focus on the harmonisation of asylum policy and the application of international standards for the protection of the current asylum seekers. The UNHCR estimates that 49% of the Medi81


PROFESSIONAL SPOTLIGHT


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PROFESSIONAL SPOTLIGHT Interview: Andrés Gascón-Cuenca Director of the International Human Rights Clinic, at the University of Valencia, Spain Lawyr.it: First of all, we would like to know lecturer Andrés Gascón-Cuenca better. What made you choose a legal career and how did you discover your interest in Human Rights?

A.G.-C.: Surely I would choose Human Rights and Law, but I would do a double degree in Law plus Political Science. In fact, I am now studying this degree. I like the world of Law and the research in Human Rights, and the complemenA.G.-C.: Since I started high school, I felt attary vision that the study of political science tracted to the world of Law. Once I started the gives to whole picture is highly useful, I think. degree, Human rights was an area in which I have been always interested, as a cornerstone of Lawyr.it: Tell us more about your work at the any lawyers’ job is to defend the basic rights of International Human Rights Clinic in Valenthe people, the essential threshold that must be cia. Why did you start this legal clinic progranted to any person. ject and what impact does it have on students’ preparation/learning? Could you tell us a few I definitely went for this area of law once I finwords about the cases you have had at the clinished the legal practice I did in order to finish ic and how has the involvement of your team my law studies. I worked on it in a law firm, influenced the outcome of these cases? around 2009. By that time, the financial crisis was affecting Spain really hard, and the unem“I realised that I had not studployment rate hit the 17, 4% that year. The major part of the work I performed was focused ied law to perform the kind of job in the execution of forced evictions from usual where the basic rights of the indihomes from people that had just lost their jobs viduals were completely dismissed. and were not able to pay their mortgages. In Law should be used to help people that precise moment, I realised that I had not solve their problems, not otherstudied law to perform the kind of job where the basic rights of the individuals were comwise.” pletely dismissed. Law should be used to help people solve their problems, not otherwise. A.G.-C.: This clinic takes cases from organisations and NGOs with which we have agreements Lawyr.it: If you had to choose again the line of of collaboration. Students in this clinic prepare studies, would you still choose Law or would reports to support strategic litigation in cases you like to try something else? What is more, in which human rights have been jeopardized. would you still choose Human Rights as a field They acquire multiple skills performing all the of interest? tasks that building up a strategic litigation case 84


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PROFESSIONAL SPOTLIGHT requires, such as performing researching into UN documents or ECtHR case law, to construct the best way to defend the rights of the people we are working with, improving their oral presentation abilities, performing interview with clients, among others.

about what are their rights, in order to provide them with the full information on our legal system.

Lawyr.it: You have recently participated at a conference, here in Cluj-Napoca, at the Faculty of Law, in order to speak about the Human We had multiple cases, but, if I have to underline Rights Clinic, at the invitation of Delia Niţă some of them, one would be when we collabo- (CRJ) and Iulia Pascu (ACTEDO). Are you rated in helping an international organisation working on opening a line of collaboration? to sue the Czech Republic in front of the EuA.G.-C.: We are highly interested in maintainropean Court of Human Rights because of the ing a line of collaboration with CRJ and ACTdiscriminatory application of the Education Act EDO in the different areas we are working into. against Roma pupils. The Czech Republic was The attention that clinical legal education is resentenced for this issue in 2007 (D.H. & others ceiving from the University Babeș-Bolyai, the against Czech Republic), and this organization students of the School of Law, and organizations we were working with was thinking in suing such as ACTEDO and CRJ are very stimulating. again this State, because it still was applying the From my visit to Cluj-Napoca, I realissed that Education Act in a discriminatory way towards Romania and Spain share the same difficulties Roma pupils in 2013. The report is available in when it comes to the practical education of the English language at: http://cjjs.uv.es/index.php/ clinicajuridica/article/view/4612/4486 We collaborated with another international organization doing an amicus curiae in front of the Inter-American Court of Human Rights in the case Vélez Respeto y Familiares vs. Colombia (http://corteidh.or.cr/docs/casos/articulos/ seriec_248_esp.pdf), where Colombia was sentenced because of the violation of several articles of the American Convention on Human Rights. We are working as well in a project called Crossing borders with NGOs from Morocco. In this project, we are giving legal advice to migrants that are trying to cross the Mediterranean Sea in order to reach the Spanish shore before they do so. We basically inform them about what it means to be an irregular migrant in Spain, and 86

“The application of the rule of law and the guarantee of the human rights has no exceptions and it is particularly despicable when the States of the European Union close their eyes to the tragedy of the refugees”

law students. So that, having this first contact, we are willing to initiate a network of collaboration which both of us can use to exchange ideas and participate in projects to promote social justice and social values. Lawyr.it: We are all familiar with the on-going refugee crisis and the countries’ approach to


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the massive amount of asylum applications. What is your opinion on the lowering of the standard at which countries guarantee the respect of the European Convention of Human Rights (ECHR) for these people? Can this situation be described as a derogation in time of emergency, as provided by Article 15 of the Convention?

politicians must bear in mind that these people are trying to scape from persecutions, violence, and war risking their lives, crossing, for example, the Mediterranean Sea, where hundreds of people died with the indifference and inaction of the EU. Moreover, any kind of discrimination based on nationality is against the international law.

A.G.-C.: The breach of the protection given by the ECHR is not a new thing when it comes to refugee protection. Nowadays, it is more present in the media, but unfortunately this type of cases can be found since many time ago. For example, Spain has been sentenced in the case A.C. and other vs. Spain (April 22, 2014), for returning people that were applying for the refugee statue without respecting the due process of law. This situation is completely inadmissible and cases must be reported. The application of the rule of law and the guarantee of the human rights has no exceptions and it is particularly despicable when the States of the European Union close their eyes to the tragedy of the refugees.

“Mixing the refuge crisis with the problem of terrorism is completely unacceptable, and that kind of speech coming from politicians or other members of the society should be pointed out as racist and xenophobic.�

Lawyr.it: Do you think that the Paris attack justifies a change of optics in the policy of the European states, as they tend to closely monitor the attitude of Syrian citizens who are travelling across Europe, and, consequently, are very likely to discriminate them based on religion or nationality?

Lawyr.it: Lastly, our trademark questions: if you have to give one piece of advice from your experience, what would you recommend to law students? A.G.-C.: My piece of advice to future lawyers would be that they must always help to defend the rights of the people that come to them asking for help, and especially the rights of the most disadvantaged within the society. Lawyers have a key-role as watchdogs of the standards of application of the rights granted in our societies. Being a lawyer and representing people in court are jobs that will require from them a high sense of responsibility. People will come to them for solutions, and they, as professionals, must provide them with the best defense they can carry out. Lawyers, as physicians do, must focus in helping those who are in need.

A.G.-C.: People from Syria and other countries such as Iraq are trying to scape from the horrors of war. Mixing the refuge crisis with the problem of terrorism is completely unacceptable, and that kind of speech coming from politicians or other members of the society should be pointed out as racist and xenophobic. European

By Diana Lucaciu

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PROFESSIONAL SPOTLIGHT Interview: Professor Peter Rodrigues By Guest Author: Jacob Ciesielczuk

Peter Rodrigues is Professor of Immigration

arately. Despite the huge number of refugees, the host countries still need to pay attention to Law and Chairman of the Institute of Immiindividuals who may pose a threat to national gration Law of the University of Leiden, and security or simply cannot be classified as asyformer head of the department Research and lum seekers. Documentation at the Anne Frank House (Amsterdam). Peter Rodrigues has published J.C.: Do you think that the European Commiswidely on migration and statelessness. He is sion’s decision on the emergency relocation of a member of the Dutch Standing Commit- the refugees may trigger some conflicts within tee of experts on international immigration, the EU, given that there is a strong disagreerefugee and criminal law (Meijers Commit- ment between EU Member States as to how to tee) and the Chairman of the Dutch Associa- handle the refugee crisis? tion for Migration Research. From April 1995 P.R.: I think that, in the light of the current critill September 2000 he was appointed as a sis, Europe should face it with solidarity, as this Commissioner of the Dutch Equal Treatment is one of the core principles of the EU. However, Commission. securing the national migration policy rather Our Guest Author, Mr. Ciesielczuk, is cur- than following the EU directives were taking rently pursuing a Master’s Degree in Public place even before the current crisis, we have International Law at Leiden University. He Italy and Greece as examples. Unfortunately, has a strong interest in international law, in- many EU Member States seem to still seek to ternational relations, European affairs and secure national interests and policies rather politics. He is former Vice President of the than to act collectively. Dundee University Exchange Society, and the J.C.: Do you think that there is a strong conflict founder of the Dundee helping Ukraine Inibetween the rule of sovereignty of the State and tiative. its obligations under EU law? Jacob Ciesielczuk: The first question is very P.R.: When the EU started its migration policy general: How should the EU deal with such a with the Treaty of Amsterdam, in 1999, we, as huge influx of the refugees as the one we are human rights lawyers, feared that it would crecurrently facing? ate very strict regulations imposed on EU MemPeter Rodrigues: The fact is that the number of ber States and we were aware of the delicate refugees makes it extremely difficult for host nature of these legal instruments. Nowadays, countries to deal with it properly. The huge we came to the point where the European law amount of refugees who have just arrived to Eu- provides an extensive protection for migrants, rope or are on their way can be classified as ex- while many national legislations of EU Memceptional situation, therefore some exceptional ber States provide only very limited protection rules should apply. However, primarily, every for them. Given the supremacy of European law individual refugee case should be analyzed sep- over national legislation, such a situation is unacceptable as EU Member States cannot lower 88


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the agreed level of protection for migrants. All the EU legal instruments regarding asylum policy, including EU Directives and Regulations, set up a minimum standard for dealing with migrants and that standard should be followed without exception everywhere within the European Union.

eration from all EU Member States and hope that other States will follow their approach. As I said before, the huge number of refugees is an exceptional situation and exceptional measures should be taken.

J.C.: Do you think that any potential reform of the European Migration Policy is possible or J.C.: Do you think that Dublin Regulation III, desirable at the moment; if yes, would be helpas a legal instrument regulating the flow of ful in coping with the current crisis? refugees, is efficient enough to cope with curP.R.: We have some relatively recent recast regrent crisis? ulations like Qualification Directive 2011 and P.R.: Not at all. It was already not working Dublin Regulation III 2013, and, in my opinproperly even before the current refuges crisis ion, it would be extremely hard to review these started. As we have seen in the judgment of Eu- legal documents now, given that there would be ropean Court of Human Rights in the case of no consensus as to how to amend them. There M.S.S in 2011, the Dublin Regulation III is not is no certainty of whether the States would opt applicable to Greece anymore. There have been for a more extensive rights for migrants or, on similar problems with the Dublin Regulation in the contrary, States would be willing to restrain Italy, Hungary, and Malta. the current rights. In other words, the political climate in Europe at the moment is not the “(...) the political climate in Eu- best time for applying any changes with regard rope at the moment is not the best to the migration policy. As we have seen in the decision of Court of Justice of the European time for applying any changes with Union in the case MA v UK, the proposals of regard to the migration policy.� European Community to amend the provisions of Dublin Regulation III regarded only a very narrow scope, namely the case in which J.C.: The Dublin Regulation provides that the an unaccompanied minor is rejected, and it was first Member State of the EU reached by a miopposed by States like Germany and the Nethgrant coming from outside the EU is responsierlands. However, it is worth to mention that ble for protecting the rights of that individuthe inactivated Temporary Protection Directive al. However, there are some politicians, such (2001/55/EC) created in 2001, following the unas Angela Merkel, who are explicitly inviting coordinated response to the refugee crisis genmigrants to come to Germany. This seems to erated by the conflict in the former Yugoslavia breach the provisions of the Dublin Regulation in the 1990s, seems to be an applicable solution as it encourages migrants to travel across Eufor the current refugee crisis. Its purpose is to rope, and, as a consequence, it will, in theory, provide a framework and minimum standards deprive the migrants of all the rights. What do for responses to the mass displacement of peryou think about that? sons who are unable to return to their country P.R.: That seems, indeed, to be a breach of regu- of origin (for example, due to armed conflict). lation. However, at the same time, politicians By Jacob Ciesielczuk like Angela Merkel require solidarity and coop89


QUESTION OF THE ISSUE


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QUESTION OF THE ISSUE Have your ideas about being a lawyer changed since you started law school/ job?

Since its launch, Lawyr.it has been encouraging our readers and supporters to express themselves, not

only by submitting articles, but also by answering different questions concerning their preferences, challenges, or achievements. This Question of the Issue section presents the stories of some law students and young professionals on the decisions they had to make about becoming a lawyer. We kindly thank them for their responses and we invite you to find out more in the following! “My decision to study law was largely based on two presumptions. Firstly, you need to debate and argue a lot in order to be a successful lawyer. Secondly, the person who debates better wins the prize. Since I actually started applying law, I have come to understand that the ones who avoid conflict altogether, and are able to settle the conflict outside the courtroom are the real winners. Law is much more than a simple debate and actually provides many tools to resolve conflicts amicably – and to the benefit of both parties.” Sviatoslav Grigorash Vilnius University, Lithuania “I would like to share some misconceptions that I used to have about being a lawyer, so that perhaps current law students can avoid them: (1) Having knowledge of the law is not enough. In fact, it is only a basic level, but it is not enough for becoming great. In my opinion, other skills such as analytical thinking or some accounting basics are a MUST for having success. (2) Working in a big law firm is not necessarily a guarantee that you will become a good lawyer. Usually, the senior lawyers who work in this type of firms are too busy to actually mentor you. That is why you should consider the fact that you can find well prepared lawyers even in smaller law offices. (3) Being a COOL and TRUE lawyer is not just a litigation thing. I found that consultancy can be (at least sometimes) even more challenging since you must have not only an overview, but also a solid knowledge of the potential issues in order to give the proper advice.” Raul Zachia Traian Paicu Law Firm, Romania 92


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“Before entering law school, I thought that a rule is a rule. A right is an absolute right and a wrong is an absolute wrong. However, during law school, I gained much more than I expected. I discovered how to question the existing rules and to think of methods of improvement. I learned that justice does not always equal absolute fairness, and that raw equality isn’t always fair amongst people who carry so many differences. Humans are complex beings; therefore the rules for all the games we play are complex.” Marjana Staninova Law Office Pepeljugoski, Macedonia

“Growing up in a family of lawyers, a five-year-old me came to the conclusion that lawyers somehow managed to sell their thoughts. At that age, it was never quite clear to me whether it was the power of papers and pens or the way they dressed that made them do that. Until now, I was not aware of the opportunities that legal studies offer you. It is not only knowing the law by heart, nor is it only about the justice. It gives you the opportunity to work in any field you want. It gives you the power to see the layers, the essence and the root of the problem, and it gives you various solutions for solving it. However, I would not say my childhood self was completely wrong.” Andrea Stevanovic University of Belgrade, Serbia “I have always wanted to have a job where I can enjoy every day completely. I thought that law school could help me to find this kind of job because I consider being a lawyer a day-to-day challenge. Each case is different and, as a result, every day is different as well, so it never gets boring. When I went to law school, I knew that I would have to study extremely hard, but I never imagined how exhausting could it be to spend months at home studying for finals. I never thought that being a lawyer could be detrimental to one’s personal life and that we would never feel like we have enough time. I really hope that I will be able to find a better balance in the future.” Kinga Kajcsos Eötvös Loránd University, Hungary

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QUESTION OF THE ISSUE Have your ideas about being a lawyer changed since you started law school/ job? “My idea of being a lawyer didn’t change after I graduated, however, the idea of being lawyer I had before law school did change a lot. Five years of studying and some additional experiences make you understand that it’s not like the movies, where there is a sudden Columbus egg solution to all of the problems. Behind every solution, as simple as it may look, is plenty of hard work and hours of sacrifice. I’d like to become a good lawyer and, shortly before my graduation, I understand that talent without preparation is just a losing bet.” Jonathan Pardo Università degli studi di Trieste, Italy “My first encounter with the practice of law was the Ally McBeal show. I felt in love with this silly and brilliant lawyer who had a very particular relationship with law. Now, studying at law school was a complete contrast to that image – it’s all about bare-bones theory and the legislation we must learn by heart. It wasn’t until I entered various student competitions – debate club and mock trials – that I’ve learned the true charm of court proceedings, how to actually apply law in specific cases, the importance of a solid argument, and the beauty of structured speech. Practice is the only way to learn that law is actually a passionate science.” Dijana Peric MODAMO.info, Bosnia and Herzegovina “After I graduated, I immediately started working for a law office. Being out of a comfort zone where you only need to read and memorize, in a highly competitive area, taught me what effective work is. You no longer aim for the perfection, but for getting the job done right. Graduating does not go in line with a ‘I Know It All’ outcome. There are plenty of things to learn even with your diploma in hand and driven by passion to face real life challenges by winning your case. In the post-graduate phase, the overall personal ambition is on a much higher level, only because you learn more every day.” Anja Gengo UN’s Secretariat of the Internet Governance Forum, Switzerland 94


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“Before starting this job, my vision of being a lawyer was heavily influenced by American pop culture. Only after I passed the bar exam, I became aware of the skills the legal proffesion requires and what part the lawyer is allowed to play in the judicial system. After 10 years, what I can tell you is that it takes a lot of effort and patience, but at the same time, it brings a fair share of benefits.” Loredana Zoița Negelschi & asociații, Neamț Bar Association, Romania

“I knew from the beginning that law school was not going to be easy, but now it seems that the life of a lawyer is even more challenging. From the experiences of our professors, I understand that being a lawyer requires an everyday commitment and learning new things on a daily basis in order to plead efficiently and support the cases. I always thought that being a lawyer would be tricky, so my expectations have been met so far.” Robert Ungureanu Babeș-Bolyai University, Romania “I wanted to become an ambassador and work for the UN. My choice of studying law over political science was based on my desire to have some practical knowledge in case my preferences change and if, by some chance, I decide to practice law. Now being in my final year, I believe that I made the right choice since studying law opened up so many opportunities that I would not have had if I studied anything else. I’ve even started liking the fact that, one day (soon), I might even be a lawyer.” Jelena Todic University of Belgrade, Serbia “Yes, my ideas about being a lawyer have changed a bit since I started law school. Why? Because it’s not as easy as I thought it would be. You must learn a lot of theory and I think some of the subjects are just not that useful for students. However, I really like what I’m learning and I think our professors are more involved in our training than I expected them to be. This motivates me to get accustomed with how law school really is.” Nicoleta Bucșă Alexandru Ioan Cuza University, Romania 95


DEVIL'S ADVOCATE


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DEVIL'S ADVOCATE Should access to the Internet be considered a fundamental right? This issue's advocates: PROs: Adrian Hodiș Adrian graduated from the Babeș-Bolyai University of ClujNapoca, Faculty of Law in 2012. He holds an LLM degree in Private Law Institutions from the same university and is currently an attorney-at-law at a local law firm in Cluj-Napoca. After graduation, he doubled his work as an attorney with an academic position at the law faculty he graduated from. As a teaching assistant, he works with third year students on matters of Employment Law.

CONs: Xenia Burghelea Xenia graduated Babes-Bolyai University of Cluj-Napoca, Faculty of Law in 2011, holding as well an LLM degree in Private Law Institutions, from the same university. Currently she is a lawyer at Bucharest law firm, practicing both in Cluj-Napoca as well as in Bucharest, meanwhile acting as a teaching assistant within Employment Law department of the upper mentioned university, and as a Coordinator of the BBU Debate Society and trainer of the Novices Club, extensively participating in international debate tournaments.

Debate Foreword. Moderator's note Dear readers, The technological progress that we have witnessed over the course of the last decades is rightfully sparking a meaningful debate over how far do we need to go in order to bring our conception of fundamental rights in line with the modern ways. We present you with an insightful read and we hope that you will enjoy it as much as we did. After reading our guests’s arguments, feel free to send us your own opinion on the issue, at editors@lawyr.it. The most interesting opinion will be published in our upcoming issue. Enjoy the read! By Raluca Maxim 98


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Opening Remarks Adrian Hodiș: The It was during an episode of the American show ‘Today’ back in the mid-nineties that co-hosts Katie Couric and Bryant Gumbel were genuinely voicing a then-legitimate question: ‘What is Internet anyway?’ Some twenty years have passed since then and an attempt to explain what the Internet stands for would apparently seem ludicrous today as the daily use of the Internet technology in any shape or form is, quite simply, inescapable and commonplace for all. …or is it really? It has been known for a fact that, despite its fast-growing spread, no less than two thirds of the world’s population is currently not connected to the Internet. In other words, one out of three people has never sent an e-mail to a friend, never googled the telephone number of an emergency hospital or never browsed the website of a university in search for a better education. I argue that the right to Internet access, as it primarily relates to a most basic set of human needs, should be regarded as a fundamental human right and treated as such. I should, however, point out up front that guaranteed access to high-speed broadband, limitless download capacity or countless hours of high-definition video streaming for 7.3 billion people worldwide is not what I am pleading for; it is the access to the more basic, yet vital information that interests me. That is to say that the right to Internet access should be considered fundamentally inherent to all humans only insofar as the access to the most important information is concerned. To this extent, it is my view that the unrestricted availability of Internet technology is indeed a basic human right, rather than a privilege set aside for the better half of the world. Talks about the concept of freedom of speech (to which the right to freedom of expression is closely related) date as far back as the 6th century BC; the right itself has long been recognized under Article 19 of the Universal Declaration of Human Rights. It

Xenia Burghelea: Tools cannot transcend jurisdictions. Tools do not belong without presumption or cost of the privilege to all human rights. In my humble perspective, this is what Internet Access is – a mere tool. In order to declare a right ‘fundamental’, one needs to understand when and why something is recognized as a fundamental human right, and therefore when a right is granted special legal protection. Along with our needs or capabilities, our moral vision of the world expands: the way we see things, the way we treat things, everything changes and extends. Three generations of rights evolved to the point of begin recognized as fundamental: (1) civil and political, (2) economic, social and cultural, and (3) collective and group rights. The moment a right is purposefully converted to a fundamental status, it increases the moral burden under which Governments control and limit its exertion. Particularly, if we do not recognize Internet access as a fundamental human right, any authoritarian state can restrict it in more relaxed conditions. We are not contesting these harms. Nonetheless, just because they occur, it does not mean that declaring internet access a fundamental human right is the best way to ensure the dilution of the causes of the upper mentioned harms. Indeed, the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression as guaranteed by Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The right to freedom of opinion and expression is both a fundamental human right in its own substantive, as well as an ‘enabler’ of other fundamental rights. Thus, Internet acts as a catalyst for individuals to exercise their right to freedom of opinion and expression, while facilitating the realization of a range of other human rights. Yet again, this particular communication technology, despite its vast potential and benefits corroborated with its unique characteristics (speed, worldwide reach and relative anonymity) is a mere enabler of rights, not a right itself. We should acknowledge

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DEVIL'S ADVOCATE is also known that the right to freedom of assembly benefits from the same recognition under Article 20 of the Declaration. The evocation of both these human rights was, of course, not random, for they are so fittingly encompassed by what the Internet technology stands for. At the same time, their respective infringements also bring about precisely the main concerns regarding free access to Internet services (e.g. the abusive restrictions on online content or the unreasonable blocking of certain websites, online tools or even Internet users themselves) for, as the experience of the last decade has shown, to apply unwanted censorship on the right to broadband is to unlawfully apply limitations to the two aforementioned fundamental rights.

that internet is valuable as a means to an end, not as an end to itself. The fairest way to characterize human rights is to identify the outcomes that we are trying to ensure: freedom of speech and freedom to access to information are critical freedoms, but they are not bound to any particular technology at any particular time.

A more realistic approach might constitute opting for qualifying and declaring Internet a civil right, and not a fundamental one. Civil rights, by comparison, are conferred upon us by law, not intrinsic to us as human beings. While no government declared a ‘right’ to electricity or phone, we did come close to it with the notion of ‘universal service’, thus the imperative of making it available even in the most remote regions of one’s country. By grasping this idea, we are furtively moving toward the concept of In another train of thoughts, the real focus should Internet as a civil right, considering that the ensurbe on the constructive potential of the Internet ing access is a… policy made by the government. technology. Above all, the Internet has always been a communication technology; it enables us to con- Internet did become an indispensable tool for realnect (I may have just used the most prominent verb ising a wide range of human rights, combating inof our times) and, through this very connectedness, equality, and accelerating development and human progress, yet that should not make us cause a conto achieve the unthinkable time and again. On a fusion between making a priority for all States to more personal note, I have always wanted to make ensure universal access to Internet versus the State’s the world a smaller place. I receive a message from positive obligation to promote or to facilitate the my Brazilian friend on what is it like to work in a enjoyment of the right to freedom of expression and law firm based in São Paulo while I have just fin- the means necessary to exercise this right, including ished catching up with my Lithuanian friend cur- Internet. rently pursuing an LL.M. in the U.S. Suffice it to say While the Internet has introduced an enormously that I would not be able to do any of this with such accessible and egalitarian platform for moving inease and convenience if it were not for the Internet formation in both directions – as an interactive metechnology. dium, the individuals being no longer passive recipients - on a global scale, resulting in new ways Finally, instead of drawing a conclusion, I invite you to allow people to exercise their human and civil to ponder on the following: what was the status of rights, facilitating access to Internet is a mean to the right to life, liberty, personal security, equality improve the human condition, and it must be done before the law, before receiving any formal recogni- with an appreciation for the civil rights and funtion, and what is the most common stance on these damental human rights that deserve protection – without pretending that access itself is such a right. rights now? Moderator’s Note: Adrian’s main argument puts the right to Internet access alongside the most basic human needs, as it is based on one’s right to information. He further points to the fact that Internet serves as a communication pillar, which makes it a driver for progress and innovation. Xenia, on the other hand, argues that internet access is simply a tool and cannot be mistaken for a fundamental human right, as it is rather an ‘enabler’ of fundamental rights, such as the right to freedom of opinion and expression. Instead, she says, it should be qualified as a mere civil right.

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Rebuttal Adrian Hodiș: In her opening statement, my opponent argues against the recognition of the right to Internet access as a fundamental human right. I feel obliged to salute her remark on the need to understand the specific circumstances under which a certain right is to be awarded the status of a fundamental human right as I, too, share the same view. However, as promising as this commencement was, it is unfortunate that the concept per se did not receive any further considerations. The main argument of my opponent is that the access to broadband is merely a tool, a means to achieve an expected result, and not the result itself. My opponent implies that the right to Internet access should not be considered fundamental for it would then follow that any state interference with the exercise of this right would simply be more heavily scrutinized, thus morally burdening the governments. While an acknowledgment is expressed as to the fact that, indeed, most of these interferences are intrusive and should be fought against, we are left adrift as far as a feasible solution is concerned. The proposition of the ‘merely civil’ qualification of the right in question is, as we shall see below, superfluous, if not misconceived. There is one more humble observation worth mentioning here: how interesting it is that the three groups of fundamental rights my opponent so rightfully mentioned are all inescapably intertwined today with the right to Internet access?

Xenia Burghelea: The opponent’s case encapsulates more of a moral eulogy of the advantages of Internet, rather than advancing particular reasons for which it should be awarded a fundamental status. Even the most cursory examination proves the logic of ‘what was the status of the right to life, liberty, personal security, equality before the law, before receiving any formal recognition and what is the most common stance on these rights now?’ fatally flawed: it is a mistake to place any particular technology in this elevated category, since over time we will end up valuing the wrong things, thus exhausting the political capital and consequently diluting the protection of other rights – freedom of speech itself. There was a time when if you did not have a… horse, it was hard to make a living. But the meaningful right in that case was the right to make a living, not the right to a horse. Today, if we granted a right to have a horse, I am not sure where we would put it (maybe in the infrastructure section). Internet Access, as perfectly put in the opening statements in favor of the debated recognition, helps you get access to other rights, without being undeniable, irrevocable and inherent to survival. The key difference is that there is no justified situation when you can deny someone water – not even if he committed crimes against humanity – but there are situations where you can remove Internet Access: hate speech (when the fundamental right of freedom of speech is abused), child pornography (in order to protect the rights of children), direct and public incitement to commit genocide (with the purpose to protect the rights of others), or advocacy of national racial or religious hatred that constitutes incitement to discrimination, hostility or violence. I do not have to give a plane, but you (the Government) cannot stop me from going wherever I want. I do not have to give you time on air (radio) to complain, but you (the Government) cannot stop me from speaking. These are the lines and distinctions we need to draw in order to assess whether a right is fundamental or not. The fact that Internet promises fancy benefits does not mean that totalitarian regimes will respect it just because we declared it fundamental and the international community will, therefore, have more bargaining power.

My opponent also takes on the task of explaining how the Internet technology enables individuals to freely exercise a significant number of rights that are formally considered inherent to all humans. Again, I am more than pleased to concur with this assertion. However, it is my view that the bigger picture is missed; come to think of it, it appears to be obvious that the Internet access enables us to express ourselves, communicate with others, access important information and so forth and, truth be told, one could make a case for its supremacy when it comes to the most frequently used way of exerting those rights. Yet if we reflect a little longer, we might come to the conclusion that the online environment Scraping away the calculated diction from internet is all of that… and something more. One may ask primarily relates to a most basic set of human needs, few problems emerge: if we strip away the content 101


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DEVIL'S ADVOCATE oneself: what makes this network of interconnected machines a primary enabler for us to make full use of the human rights listed so far in this debate? I dare suggest an answer: it is the convenience of access. It is the availability and its permanence. It is, more often than not, the reliability of the content. It is the sheer speed at which people are able to do so much in so little time. Needless to say, the actual network that is being created is all about connecting the people using the devices, for these devices are, in fact, just a tool. In other words, contrary to my opponent’s reasoning, I argue that the tools are the mere physical machines we use to exercise the right in discussion, whereas the Internet—the network, as I previously put it—, while still more than a tangible object, is ultimately the very connected state of its members. My point is that people should be free to not only enjoy the free exercise of human rights but, as we take a step further—and we must!—, to do so in the most convenient, accessible, reliable and swift way that they themselves have come to create. According to my opponent, the right to broadband should be qualified as a mere civil right, as opposed to fundamental human rights, suggesting that there would be a qualitative difference between the two concepts. I cannot agree with this assertion for the simple fact that the distinction is not substantiated in law, as the two categories actually collide to contain roughly the same rights (e.g. right to freedom of expression). Even if we were to accept the proposed difference in its treatment, I still plead for treating the issue at stake with maximum severity as the right to Internet access speaks to so many more human needs and values than just the so frequently invoked freedom of expression. As most of the world does not have access to Internet services, gaining it would mean, for instance, better education and healthcare.

(information) available on Internet, can Internet survive and make sense on its own? No. What you have striped (the people) off is their fundamental right to information access (or more), Internet thus plainly meeting the constitutive of a tool or infrastructure for exercising a fundamental right: whether it is enjoyment of a wide range of human rights, assert those same rights or participate in public debates concerning social, economic and political changes to improve their situation and therefore subduing the perpetration of the same ‘digital divide’. Contrariwise, there are palpable harms derived from recognizing Internet Access as a fundamental human right. If so, Governments not only should fully guarantee the right to freedom of expression as a norm, thus considering the limitation of Internet Access an exception (a principle that should never be reversed) - refraining from restricting the content on the Internet - but also have a positive obligation of facilitating Internet Access: adopt effective policies and strategies in order to make the Internet widely available, accessible and affordable for all. Unfortunately, given that access to basic commodities such as electricity remains difficult in many developing states, we should be aware that universal access to the Internet for all individuals worldwide cannot be achieved without incremental change – that implying a heavy focusing our political capital on exercising fully and respecting the already recognized fundamental human rights, prioritising this way between those fundamental human rights and Internet Access. Therefore, taking into account we cannot (yet) ensure a uniform facilitation and enjoyment the right to freedom of expression and other rights that are enabled by this particular one, apparently by bridging the ‘digital divide’, we are conversely diluting the focus and the efforts (political capital) necessary for reaching a similar point of respect worldwide (available now solely in Western liberal democracies), which represents a tangible harm.

Moderator’s Note: At this point, Adrian refutes Xenia’s line of reasoning which regards the Internet as a mere tool, and argues that the Internet is the ‘connected state’ of its members, whereas the tools are simply the physical machines used to exercise this right. He further argues that the distinction drawn by Xenia between civil rights and fundamental human rights is not substantiated in law, as their contents often overlap. Xenia makes a compelling observation, pointing to the fact that we must pay attention to what we decide to protect as a fundamental right, given that there are various situations in which Internet access may be removed, such as hate speech of child pornography, as opposed to, she says, denying someone water, which is never justified. I hope you enjoyed the debate and the conclusions will help you form an opinion of your own! 102


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Closing Remarks Adrian Hodiș: I plead for the recognition of the right to Internet access as a fundamental human right insofar as the access to the most basic, yet vital content is concerned. Although this formal recognition would not constitute an immediate solution to the problems mentioned above, it would undoubtedly be a very important step towards that end. For all intents and purposes, looking back at the other fundamental human rights before and after their recognition as such, I believe we have legitimate reasons to expect the right to broadband to follow suit. My opponent argues two things, in the following order: first, the access to Internet technology cannot be seen as an end in itself, but rather as a tool; second, the access to Internet services is in fact a ‘mere’ civil right. I demonstrated how the right to broadband is neither a tool nor should it be something less than a fundamental human right. It is first of all not just a tool but a right of its own because its functions surpass the mere accumulation of other human rights’ exertions; its uniqueness derives from its convenience and availability, two features everybody should be entitled to enjoy. It then meets all the requirements to be qualified as a fundamental human right in light of the current state of technological progress and bearing in mind the significant improvement the majority of the world’s population would feel in their lives thanks to gaining access to Internet.

Xenia Burghelea: The online discourse has rapidly become one of the driving forces in political change around the world, becoming a tool for social justice. By not providing affordable internet access to everyone, we might be blocking democracy and political power. However, confusing Internet Access – inherently a tool in this House’ perspective - with the fundamental right of freedom of speech, freedom of expression and access to information can do a lot of harm, particularly misusing the political and social capital necessary in order to ensure the respect and enjoyment of the already recognized fundamental human rights. Although Internet acts as a catalyst for individuals to exercise their right to freedom of opinion and expression, while facilitating the realization of a range of other human rights and therefore representing an indispensable tool for that wide realization while combating inequality and accelerating development and human progress, devoid of content it cannot exist, therefore survive as a right in its own accord. Instead of focusing to declare Internet Access a fundamental human right and therefore prioritising on those policies, we should treat it as, yes, unprecedented means that enables and catalyzes the capitalization freedom of opinion and expression and not convert its revolutionary effect into a right itself without losing from our sight the end itself – freedom of speech, freedom of expression and contributing to the human capital through its educational benefits.

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WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS TENTH EDITION: Alexandra Muresan Angeliki Tsanta Angie Pantzardzidi Catalin Pop Daniela Ghicajanu Diana Lucaciu Fotis Kokkinis Georgiana Caramihai Giulia Priora

Jacob Ciesielczuk Lavinia Iusan Lejla Hodzic Lidia Peneva Naida Softic Raluca Alexandra Maxim Sabrina Matei Vlad Bota Wojciech Bańczyk

We would like to extend special thanks to Andrés Gascón-Cuenca and to Prof. Peter Rodrigues for taking the time to offer us an interview, to Adrian Hodis and Xenia Burghelea, for their contribution to this edition’s debate, as well as to Ana Condor, for contributing with photos. Also, a big thank you to all students and young professionals who answered this issue's question.

We kindly invite you to send us feedback or any comments to the materials published in Lawyr.it magazine. Also, feel free to address any other enquiries at: editors@lawyr.it. Follow our activity on our website: www.lawyr.it and on our Facebook, Twitter or LinkedIn pages.

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