VOL. 6 | ED. 2 April 16, 2019
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EDITOR'S NOTE By Krisztina Petra Gula “Our moral responsibility is not to stop the future, but to shape it. To channel our destiny in humane directions and to ease the trauma of transition.” (Alvin Toffler) This was the idea that guided me when I decided to join the Lawyr.it project four years ago, which has proved to be one of the most outstanding opportunities in the course of my university studies. I walked through the steps of being Junior Editor, Senior Editor, finally Managing Editor, and all the tasks, all the different challenges helped me to advance in a certain way. I had the chance to gain information from the most diverse fields of law – of which I had barely had knowledge before –, I could get to know interesting ideas, thought-provoking viewpoints and argumentations, and this was just the beginning of a lot longer journey. I could see how professionalism and creativity work in practice when there is an inspiring community to which we belong and which makes us become part of a Europe-wide network of law students and practising lawyers. As law students, we probably all experienced the feeling when we were sitting at a lecture or a seminar at the university, listening to the materiel, then learning hundreds of pages of books and legal sources, however, law and legal thinking are in fact composed of a lot more. They are about shaping a certain mentality, finding or establishing principles that would guide us in our professional life and always trying to figure out new solutions, new approaches to the arising problems and questions. Refining and publishing a qualified piece of writing is one half of those amazing working processes which form the Lawyr.it project as a whole, however, the other half is sharing it with professionals and also making it understandable for non-professionals from all over the world. When we publish a piece, in a way, it gains its own existence, it gets to others who will reflect on it, think about it, interpret it in their own specific manner, probably even write and publish on the basis of it. This never-ending change of thought is what makes the process truly exciting and enjoyable. I am glad that I had the opportunity to participate in the creation of this exciting issue, which is composed of articles of great quality and interest. As usual, this issue opens with the Domestic focus section, which features articles on the financial balance principle in administrative law or the legal aspects of the confidentiality obligation in banking law. Moving to our International Focus section, you will find themes such as the conflict between Russia and Ukraine and the related enforcement of martial law, the situation of the Ukranian internally displaced persons, the role of non-governmental organisations in international economic law, the legal perspectives of secularism and nativity scenes, as well as the judicial overview of the European Investigation Order. Finally, Lawyr.it’s Reflections section deals with the heated topics of the foundation of new human rights, the genetic manipulation of the human genome in unborn children, and manslaughter committed by medical specialists. Three interviews contribute to the quality of this issue through the Professional Spotlight section: we had the chance to have a detailed conversation with Dr. Tamás Sulyok, the President of the Hungarian Constitutional Court, with Dr. Cătălin S. Rusu, Associate Professor of European Law at Radboud University, and Dr. George Zlati who is currently working as Associate Lawyer at Sergiu Bogdan & Associates. The Devil’s Advocate section features a heated debate on a – still – controversial issue: should same-sex marriage be considered as human right? The thoughts and arguments introduced in this section certainly offer our readers food for thought. Finally, don’t forget to give a look to our Question of the Issue section, which focuses on environmental law, presenting the regulations three European countries have introduced to protect the environment and evaluating their effectiveness. Last but not least, you should definitely have a look at our Opportunities section, as we have come up with some truly interesting ideas for the next months! If I had to define Lawyr.it, I would describe it in three words. Professionalism and community. Opportunities and challenges. Ideas and debates. But, most importantly, I would say it is the manifestation of a way of thinking. The aim of actively shaping the future of the legal practice and science instead of being simple observers of it. Finally, my last note goes to all those fantastic and inspiring law students, every member of the Lawyr.it Team, as well as to the authors whom I had the luck to get to know and work with in these four years, and who remind me never to stop striving for the better. Thank you.
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IN THIS EDITION
Domestic Focus Legal aspects of the confidentiality obligation in banking law (p.8) A Short Story Against Decay: The Financial Balance Principle in Administrative Law (p.12)
Reflections New Human Rights on the Horizon (p.18) Genetic manipulation of the human genome in unborn children: A libertarian approach (p.20) Manslaughter committed by a medical specialist (p.24)
International Focus Who is to pay for Ukrainian internally displaced persons? (p.30) Secularism and Nativity scenes, an impossible wedding? A legal perspective (p.34) The Role of Non-Governmental Organisations in International Economic Law (p.38) Reasons Behind the Enforcement of Martial Law – The Actual Ukrainian Paradigm (p.43) A judicial overview of the European Investigation Order (p.47)
Professional Spotlight Interview: Cătălin Rusu, Radboud University Nijmegen (p.54)
Question of the Interview: George Zlati,Issue Sergiu Bogdan & Associates (p.62)
Interview: Dr. Tamás Sulyok, President of the Hungarian Constitutional Court (p.71)
Question of the Issue How effective do you think environmental regulations are in your country? (p.96)
Devil's Advocate Should same-sex marriage be considered a human right? (p.102)
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DOMESTIC FOCUS Legal aspects of the confidentiality obligation in banking law 1. Introduction According to the Romanian Civil Code, the obligation of confidentiality presents itself as a mutual obligation, regardless of the position of the parties sitting at the negotiation table. The legislative system has appreEleonora-Nicoleta Chiselițe ciated the protection of confidential information, which is required to be incorporated explicitly in a legal provision. This must be seen from a dual perspective, first the negative, where the holder of the confidential information is obliged not to disclose the information to third parties. The positive one establishes that the party which possesses confidential information must inform the other party of its nature. It has rightly been held that, regarding confidential information, ‘the parties seek the protection of their private interests, therefore they can abolish or restrict the sphere of its application’.
may apply if the underwriting has been violated’. However, Article 1184 of the Romanian Civil Code stands in apparent opposition with the provisions of Article 111 of Government Emergency Ordinance (GEO) no. 99/2006 on credit institutions and capital adequacy. Article 111 of the above-mentioned law postulates in paragraph one that: The credit institution is obliged to keep confidential all facts, data and information about the activity performed, as well as on any fact, date or information at its disposal concerning the person, property, activity, business, personal relations or customer business or customer account information - balances, turnover, and operations - on the services rendered or on the contracts concluded with the clients. In the next paragraph the provision defines the notion of a client of a credit institution:
any person with whom, in carrying out the activities provided in Article 18 and Article 20, the credit institution has negotiated a transaction, even if that transaction has not been completed, and any person who benefits from the services of a credit The obligation of confidentiality is a general rule institution, including persons who have previously from which the parties may derogate according to received credit from a credit institution. their own interests. With regard to the contract, where a confidentiality obligation is stipulated, it It is clear from the rule in question that the obligacan be emphasised that the manifestation of the tion of confidentiality is more like an absolute reparties’ will can take place either at the negotia- quirement imposed on the bank as a professional tion stage or during the conclusion of the con- mutual obligation, as it appears in the Romanian tract. Regarding the first hypothesis, the parties Civil Code. The legislator makes a distinction have to carefully mention: ‘what information is between the quality of the parties – the credit insecret, the persons who have access to it, the pro- stitution and the client, and it also tightens their tection measures to be observed, the duration of legal order. What needs to be emphasised here is the information obligation, and the penalties that that, GEO. no. 99/2006 was enforced on January 1,
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2007 and Article 111 was the generally applicable provision regarding pre-contractual and contractual confidentiality or banking secrecy. To continue, this provision was completed by the Carol II Commercial Code. Highlighting that although the new Civil Code abolished the Commercial Code, the legal disposition regarding confidentiality when at least one of the parties is a bank remains a special one. Since the obligation of confidentiality is imposed on the bank as a result of an agreement of personal choice, it should be stressed that in this case, the confidential information will become the law of the parties. Any disregard of this obligation will entail contractual liability of the responsible party, which could represent damages, termination of the contract and other sanctions. It is appreciated that by concluding a confidentiality agreement the bank acquires a lot of sense of confidence, noticed as a consequence of the principle of good faith in contractual relationships.
right to be informed of the co-contractor is a real right, with legal protection, and as long as its observance implies a concrete, palpable and determined action on the part of another subject of law with whom it is in contractual relations, it is also an effective right, and its protection in justice appears to be a perfectly legitimate approach. The applicant showed that he had chosen to use the defendant’s services because he had confidence in the seriousness, confidentiality, and security of the money, but found out that money had been paid out of his accounts without his consent or empowerment. Those operations had been carried out in bank accounts, including successive account openings, in order to hide the reality and keep the privacy of customerbank relationships.
2. Object According to Article 1184 of the Romanian Civil Code, information is considered confidential when a person perceives it as such and it is communicated to the other contracting party during the negotiations. It is a matter that needs to be analysed, whether at the negotiating stage when one party communicates to the other party, should the second party perceive the information automatically as a secret or is it necessary to point out its confidential nature.
The cause of a will to impose the obligation of confidentiality on the other party lies in the legitimate confidence that the client has towards the bank in keeping the secrecy and not disclosing information to third parties. From this point of view, it is considered that ‘the client’s trust resides in the quality of the bank and its employees to ensure the protection of confidentiality and the reputa- The legislator emphasises that the party must tion of its honesty’. communicate the confidential character of the information to the other contracting party. It folIn this respect, sentences have also been pro- lows that ‘the information must be at least pernounced by the Bucharest Court of Appeals, but ceived in such a way with reasonable diligence’, this case was related to the conclusion of the con- which means that, if a third party could assume tract, so it still applies to the pre-contractual stage that the information brought to the attention was where the object of the obligation is to preserve confidential, then the party could also assume the confidentiality of the information provided. this. Therefore, a person who possesses some The court stated: confidential information and wants its protection must fulfil two positive obligations: firstly, the obThe account holder has the right to request and ob- ligation to determine the content of the confidentain relationships regarding the financial status of tial information, and, secondly, the obligation to his account and the statement of the account. The inform the other party of that nature.
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DOMESTIC FOCUS Regarding banking law, the obligation of confidentiality must be interpreted ‘in a flexible way’ meaning that the bank, even in the absence of an agreement concluded by the parties, is required not to disclose information of the contracting party concerning its object of activity as understood in Article 111 of the abovementioned law. However, some Romanian courts consider that a confidentiality obligation must be a written one. It is necessary to point out that it is clear from the overall Romanian regulations that the bank must ensure confidentiality with regard to any information that the customer provides during the precontractual stage. Thus, the confidentiality criteria provided by the law for the banks are: any fact, date, and information that relates to the client’s activity or the person, property, activity, business, personal or business relationships of clients or customer account information - balances, turnover, services rendered or contracts with clients.
information published in the trade register, etc.), the Bank being bound to keep it confidential.’ The court argued that the bank is not a public institution or authority and thus, it is not a subject of administrative courts. Furthermore, its clients and the protection of their confidentiality is more important than free access to public information. In view of this, the differences between Article 1184 Civil Code and Article 111 of GEO no. 99/2006 are within their scope: if in the first case the legislator leaves the circumscription of the confidential information to the parties, in the latter one, the law expressly provides what is meant by confidential information.
The Romanian law does not circumscribe the scope of the confidential information notion nor does it define it, and this intentional omission allows individuals to define it according to their particular factual case, depending on their interThis perspective is confirmed at the European lev- ests. The notion of confidential information will el in the case C-594/16 Enzo Bucioni, where the be understood in a different way in every case. Court of Justice of European Union stated that, ‘It is for the competent authorities and courts to It should be noted that according to GEO no. weigh up the interest of the applicant in having 99/2006 the bank is not granted the right to disthe information in question and the interests con- pose of its confidential information to its contracnected with maintaining the confidentiality of the tual partners or third parties. From this perspecinformation covered by the obligation of profes- tive, the Bank’s notion of commercial secret has sional secrecy, before disclosing each piece of con- an absolute meaning, motivated by public interest fidential information requested’. and their subordination to the National Bank of Romania as a higher authority. In the Romanian system, recent jurisprudence regarded the conciliation of Article 111 of the afore- From the perspective of a company or non-profit mentioned GEO with Article 6 of the Law no. legal persons, the notion of confidential infor554/2004 on administrative contentious had stat- mation overlaps with the notion of European ed that ‘information and documents related to the trade secrets. To this end, the Council Directive work of the Bank and the information and docu- 2016/94 of the European Parliament on the Proments relating to the Bank’s clients are not public tection of Undisclosed Know-How and Business information (except the information available on Information (Trade Secrets) against their Unlawits website, displayed at bank counters or made ful Acquisition, Use and Disclosure in Article 2 public by the Bank itself: e.g. financial statements, has set three conditions which need to be met for
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trade secrets. The trade secret as information is not generally known or easily accessible by third parties; they have commercial value because they are secrets and they were a subject of reasonable measures to control and protect their disclosure. The preamble of the above-mentioned directive focused on a homogenous definition of what is understood as confidential or secret. As regards to the contracting party receiving confidential information, the doctrine discovers two negative obligations the bank needs to follow: one, the obligation not to disclose the information received, and two, the obligation not to use the information received for its own benefit.
4. Conclusion The obligation of confidentiality, although a mutual obligation, is imposed on the parties with certain limitations established by the law for reasons of public order, superior but justified private interests. The banking secret enjoys a harsh regime legislator since it seeks not only the protection of privacy but also the commercial secret.
By Eleonora-Nicoleta Chiselițe Babeș-Bolyai University, Romania
Don’t forget to check our Opportunities section to see what’s new for you!
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DOMESTIC FOCUS A Short Story Against Decay: The Financial Balance Principle in Administrative Law Although the means to apply the mechanism of unpredictability is nowadays one of the most debated subjects in civil law, it is almost impossible not to be tackled in other domains, such as public law. Whereas the theory of contractual unpredictability had been Andrei Gabriel Pruna born under the constraints of administrative jurisdiction, it became a lot more popular after its regulation in the Romanian Civil Code. There were numerous reasons to undertake this measure. After the financial crisis between 2008-2009, an institution that could balance the inequity between the parties’ rights and obligations – torn by an exceptional change of the circumstances – was demanded by many people who concluded different types of credit loans. The situation was new, but somehow foreseen. From the perspective of public law, even though there were few specific regulations, the jurisprudence elaborated some theories regarding the means of the harmonisation of economic and judicial realities. Therefore, in this study, I endeavour to present the aspects regarding the applicability of the financial balance principle in the administrative contracts through two main theories. Then I will compare the conflict of one of them in two major law domains and of the two theories in the public field to see their exact applicability, as well as the main issues that could arise from it. 1. Two theories for one principle
It is considered that there are two main theories that substantiate the financial balance principle in public law: the act of administration and the theory of contractual unpredictability (Săraru, 2013, p. 442-443). The first one, which is also known as „le fait du prince”, emerged from the performance of a contract and consists of an aggravation born from the act of the administrative authority in which case the public institution is obliged to compensate the prejudice created. The application of the second theory is much more complicated and has an entire history linked to civil law in its background. In the Roman age, the unpredictability theory was not generally established and it was interpreted only through a series of directives applied to certain cases. It was later reflected in the works of Saint Thomas Aquinas in the medieval times, but it did not represent an issue of much interest to the legal professionals of his age (Pătru, 2011, p. 125). After the evolution and ratification of the pacta sunt servanda (agreements must be kept) principle, especially in the Napoleonian Code of 1804, a few reserves were put forward regarding the establishment of a legal definition of unpredictability in the common law (Malaurie, 2009, p. 397). From a civil law perspective, the contractual unpredictability was officially challenged by the French Court of Cassation in 1876. In this case, a court stated that the irrigation of the Craponne Canal – which had been determined by the royalties in the 14th century – needed to be increased as the economic situation changed throughout the centuries. Although the unpredictability mechanism was applied correctly, the judgement was denied by the High Court. Later, in 1916, the unpredictability theory was recognised in admin-
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istrative law in the „Gaz de Bordeaux” decision. On this occasion, the adjustment of a gas supply contract was acknowledged in order to prevent the disconnection of the gas supply to Bordeaux due to the bankruptcy of the debtor caused by war (Berthelemy, 1933, p. 718). The difference between the approaches of private and public law was decreased by the fact that the public interest was overwhelmed by the public transactions. However, such a rationale obviously found no consideration in private transactions. In Romania the jurisprudence tended to acknowledge the unpredictability theory, though there was no legal implementation, just in the opposite manner: first in the private law with the Lascăr Catargiu v. Bercovici Bank Case in 1920 (Piperea, 2014), then in public law, based on a decision of the Galați Arbitral Commission from 1925 (Tarangul, 1944, p. 421-422).
A difference between the two types of unpredictability is that the main effect in civil law is the financial rebalancing of the contract to avoid a severe situation caused by onerousness, whereas in the case of a public contract the re-establishment of the financial balance to prevent bankruptcy has its own reason in the continuity of the public service (Avram I., 2003, p. 180). Another difference is that while in the civil legislation the exceptional change of circumstances could arise from some unexpected situations, in the case of administrative contracts unpredictability could be applicable based on the changes made by one of the parties, mainly the public authority, which could generate the excessive onerousness. This type of power exists because the unilateral amendment of the contract could be implemented when the public interest makes it necessary. In other words, this type of law – primarily administrative law – cannot be exerted in a discretionary manner, but only 2. Civil unpredictability vs. administrative un- if the respective amendment is required by a more predictability appropriate adaptation of the contract to fulfil the necessities of public policy. The establishment of unpredictability in the Romanian New Civil Code through Article 1271 in 3. „Le fait du prince” vs. unpredictability in 2011 – combined with the particularity of public public law law – indicates some similarities and differences of unpredictability in the two major domains that Interesting aspects could be highlighted when we could further our analysis. As for the similarities, compare the two main theories to see how the both types of unpredictability could arise when fundaments of the financial balance principle are an exceptional change of the circumstances takes working in strict cases. As I affirmed earlier, the place after the conclusion of the contract, since „le fait du prince” theory entails that the public authese situations might make the debtor’s obliga- thority can unilaterally amend the essential condition clearly unjust. Moreover, in the second case, tions of the public contracts, which means that it if the conclusion and the performance of the con- will later be obliged to pay a compensation to the tract take place at the same time, the occurrence other party due to its action. Such a solution was of an external factor is impossible as both parties regulated by Article 53 of Emergency Ordinance are aware of the circumstances that could affect No. 54/2006 regarding the regime of concession the contract-making progress. Finally, according agreements of public property assets. This states to Article 1271, the debtor is entitled in both cases that the grantor can unilaterally modify the conto negotiate the adaptability of the contract with cession agreement – after the prior notification of good faith and within a reasonable time frame. the grantee – if there are exceptional motives of national or local interest. If prejudice takes place,
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DOMESTIC FOCUS the public authority must provide a fair compensation. If the parties do not reach an agreement regarding the compensation, the court will intervene and establish the fair sum. Therefore, I consider that every time a unilateral amendment of the contract is done by the public authority, the „le fait du prince” theory is applicable. For example, when a local public authority leases a complex with two pools and realises shortly thereafter that there is a local public interest to exploit the complex. The authority unilaterally amends the agreement and takes back one of the pools after notifying the grantee. In this case, the institution will be obliged to pay a fair compensation and if this cannot be settled by the parties, the court will fix the fair share in equal manner. The unpredictability theory was also recognised in concession agreements by means of Article 54 of the Emergency Ordinance, which mentions that the contractual relationships between the grantor and the grantee are based on the financial balance principle of the concession among the rights granted to the grantee and the obligations imposed. Moreover, the grantee is not obliged to take the additional burden if it occurs as a consequence of an act of administration or caused by force majeure (an unexpected event) or unforeseeable circumstances.
agreement but can affect it indirectly – the provisions of Article 54 of the Emergency Ordinance and those of Article 1271 of the New Civil Code are applicable. If the public authority unilaterally and directly modifies the concession agreement, the rules of „le fait du prince”, subsequently those of Article 53 of the Emergency Ordinance, will be applicable. For example, when a 5% VAT is assigned to a good by a local public authority and a new government ordinance – entering into force after the conclusion of the agreement – increases the same VAT to 25%, thus causing a severe damage to the grantee, the mechanism of Article 54 of the Emergency Ordinance is applicable. We can observe that in this case the measure was introduced by the central public authority (the government), a party which is opposite to the initial agreement. This is why the hypothesis may also occur when the unpredictability is caused by the decision of the public authority, party to the contract, which is not directly linked to the obligations articulated in the concession. To illustrate this, I would mention a building that is the object of a concession agreement with a local public authority by which the grantee wants to carry out commercial activity. If the same authority makes changes in the general municipal plan to the area where the building is located after the conclusion of the contract and the measure could affect the customer base of the grantee, Article 54 of the Emergency Ordinance and Article 1271 of the New Civil Code become applicable. It can also be added that the unpredictability could not only be caused by an indirect act of administration, but also by other events that could affect the contract (for example, a war).
Firstly, I consider that after the definition of unpredictability provided by the New Civil Code, the financial balance principle is based on the two theories and is not limited to one of them. Secondly, though it is mentioned that a burden increase will not be borne if it occurs as a result of an act of administration, I conclude that the legislator integrated the two theories into one text. Self-evidently, the current regulation could create confusion, but there are different hypotheses in this case. I take the view that through a measure One last difference that was highlighted by the that was made available by the public authority doctrine (Zamșa, 2006, p. 314) refers to the com– which is not directly linked to the concession pensation of the private party. In the case of the
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act of administration theory, the allowance might be allocated to fully cover the loss caused by the general administrative measure, whereas in the case of unpredictability the sum does not amount to the complete remediation of the situation but has its rationality in the continuity of the public service. As for public acquisition agreements – which are regulated by Law 98/2016 – there are many dispositions like those in Articles 53-54 of the Emergency Ordinance. In my view, the arguments presented for the applicability of the financial balance principle in the concession agreements shall also pertain to public acquisitions and to other types of administrative contracts, either regulated or non-regulated. 4. Conclusions Public authorities are constrained to conclude many administrative contracts in order to maintain their activities successfully. As their legal relationships could justify numerous and substantial modifications, it can be concluded that one of the principles which might guide their relations to private parties, the financial balance principle, needs to be applied carefully and correctly. Therefore, I assume that this principle – based on the two theories described above – represents one of the best methods to re-establish a contract for the purposes of preserving the balance between the parties’ rights and obligations. Under the current circumstances, there are not many rules that contain a deeper analysis of this principle, mainly because the contractual unpredictability theory was officially specified in 2011 in the New Romanian Civil Code. For now, discussions regarding this theory are emphasised in the decisions of the Romanian Constitutional Court in terms of forced giving in payment (Bercea, 2017, p. 24-52) or the enforcement of some power of law values for the applicability of unpredictability. ByAndrei Gabriel Pruna Babeș-Bolyai University, Romania
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REFLECTIONS New Human Rights on the Horizon In 2018, the World celebrates 70 years since Eleanor Roosevelt elevated the freshly signed Universal Declaration of Human Rights (UDHR from now on). Shortly after the atrocities of the Second World War, this document was considered a mileBence Antonya stone in the history of humanity. Since then, the document - albeit not having a binding force on governments – has helped in the creation of other human rights declarations, constitutions, and other laws. The document faces much criticism, such as its western bias, but the praises are highly outweighing the criticism. To this day, this is the United Nation’s most important document. In the following paragraphs I will discuss every potential right that has been proposed in the last 70 years and analyse the need and the possibility of its addition to the Convention. 2. The potential addition of rights 2.1 The right to clean water To celebrate the 60th anniversary of the UDHR, the United Nations launched the ‘Dignity and justice for all of us’ campaign to celebrate the document. In parallel with this, there was a petition called ‘Article 31’ which advocated for the addition of clean water as a fundamental right to the UDHR. Article 25 already implements the right to food, clothing, housing and medical care, but inexplicably the right to clean water is missing. This petition wanted to change the definition of clean water from privilege to right.
‘Everyone has the right to clean and accessible water, adequate for the health and well-being of the individual and family, and no one shall be deprived of such access or quality of water due to individual economic circumstance’. In 2010, the UN recognized the right to water as a fundamental right through Resolution 64/292, but it has not been added to the UDHR since. One can argue that this problem has been solved in 2010, albeit not being added to the Convention; this right is now guaranteed by the UN. 2.2 The right to Internet access This issue is easy to sustain, given the fact that a 2012 survey made by the Internet Society proves that over 80% of those involved thought that internet access should be considered a basic human right. In 2016 the UN amended Article 19, which provides the right to freedom of expression, and added the right to internet access. Specifically, the amendment wanted to protect the same right offline and online too. This change to the UDHR is still a ‘soft law’, like the rest of the document, – that is why it does not have binding force; but it does condemn the blocking of internet access in States, thus being an extremely useful factor in those countries which use Internet blocking for political purposes. Only 32 countries in the world are extremely resistant to Internet disconnection because they have more than 40 providers, but on the other end we can find for example Syria, which does use Internet blocking during protests (June 2011 and November 2012 are just two examples). 2.3 LGBTQ rights In December 2011, celebrating the Human Rights Day, Hillary Clinton, the United States Secretary of State at that time, told reporters that one of the remaining human rights chal-
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lenges the world faces today is guaranteeing the equality and dignity of members of the LGBT community. One can argue, that Article 2: ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind’ already includes the LGBTQ community and their rights, yet in many countries that have ratified the treaty, same sex marriage remains illegal. We can clearly see the fact that this cannot be yet added as the 31st right, but recent developments, such as the decriminalisation of homosexuality in over 30 countries in the last 20 years leads to a promising path. 2.4 Right to a healthy environment ‘Seventy years after the adoption of the Universal Declaration of Human Rights, the global recognition of this right and the provision of effective remedies are now a matter of utmost urgency for frontline communities exposed to climateinduced impacts, environmental defenders, and vulnerable groups exposed to toxic and hazardous substances. It is time for the Human Rights Council to act urgently on the Special Rapporteur’s recommendation and move toward recognizing the right to a healthy and sustainable environment.’ These are the words of Professor John Knox, who was the Special Rapporteur on Human Rights and the Environment. In March 2018, 24 Latin American and Caribbean nations signed a pact on environmental rights that will oblige the states to protect land defenders. Albeit human rights and environmental laws have long been separate fields, the Special Rapporteur urges the UN for a resolution, this way the pressure would be increased on countries to take the necessary steps.
tary services. Being a CO is a guaranteed right in the European Union. The European Convention of Human Rights does guarantee this right (‘The right to conscientious objection is recognised, in accordance to the national laws governing the exercise of right’). This can be based on religious, humanitarian or political grounds and assures the individuals’ choice to not take part in military service. One might believe that the armed forces in Europe are a thing of the past, but the 2008 European’s Bureau of Conscientious Objection report proves that many European countries still imprison and persecute those who make this choice. Among these countries, Turkey still refuses to recognise COs, their criminal code stating in Art. 318 that ‘alienating people from the military duty shall be sentenced to imprisonment for a term of six months to two years’. This way, the right to conscientious objection, alias the right to refuse to kill is a long way from becoming a fundamental human right, especially with the recent increase in military action. 3. Conclusion
As we look into our future, we have to re-evaluate the present rights written in the Convention and amend them to better suit the future; not letting them become obsolete should become a key priority. Recent trends like artificial intelligence or gene-manipulation are new areas of science that lack a concrete legal background, that’s why it is the UN’s responsibility to take the initiative. Looking back on the last 70 years, Human Rights have gone a long way, and helped making the world a better place. The individual rights that -were discussed in the article are the ones which need the closest attention in the up2.5 Right to refuse to kill coming decades, to ensure the side by side evoArticle 18 of the treaty already guarantees the lution of humanity and its human rights. right to freedom of thought, conscience and re By Bence Antonya ligion, but this does not include the right to be a conscientious objector (CO), an individual who Babeș-Bolyai University, Romania has claimed the right to refuse to perform mili-
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REFLECTIONS Genetic manipulation of the human genome in unborn children: A libertarian approach Introduction
genes of human embryos, it is not against the law to do so in China. The practice is, however, In November of 2018, still opposed by many researchers there. a Chinese researcher, He Jiankui, claimed to According to the state-run Beijing News, The have edited the genes Southern University of Science and Technology, of two twin girls’ em- which Dr. He is attached to, states that he has bryos, making them been on no-pay leave since February and that HIV resistant. He did the school of biology believed that his project ’is this by altering the a serious violation of academic ethics and acaCCR5 gene which is demic norms’. Moreover, on December the 3rd, essential for many 2018, He Jiankui was reported missing (Haynes, Răzvan-Alexandru Mărginean (though not all) vari- 2018). ants of HIV to infect their hosts (Zimmer, 2018). Among all the controversy, an ethical dilemma This was possible thanks to CRISPR – cas9 techlooms over the topic: to what extent should we nique, a genetic editing tool that removes fraginterfere with nature’s work regarding the huments of DNA (Simsek, 2018). While the girls’ man development? Is it ethical to play God? This father was HIV-positive, they ran a low risk of is the debate that the present article is proposing. infection given that artificial insemination had been used and the sperm had been ‘cleansed of the virus’. 2. Libertarianism. Explaining the theory The procedure, then, did not tend to an urgent medical need. Within the scientific community, Championing personal (bodily) autonomy and there was a general outcry against the procedure freedom, the choice of libertarianism represents having been performed. The foremost concerns the acknowledgment that it is one of the few thewere the unintended consequences the proce- ories that allows us to express a contemporary dure might have in the long term, given that the vision regarding the human body. It makes its specific alterations were clinically untested. The case in topics like abortion, adultery, prostituaimed-for benefits of the procedure were report- tion, homosexuality or assisted suicide. edly minor, and easy to achieve with alternative Libertarianism is a political theory predicated means like drugs (Klein & Le Page, 2018; Yong, on the ideas of self-ownership and individual 2018). liberty and autonomy. A guiding principle in The international consensus is that gene manip- libertarianism is the harm principle. First exulation is a sensible field and countries should plained by John Stuart Mill (though he himself cooperate when engaging in this matter. Even so, was a utilitarian) in 1858 in his work ‘On Libwhile the United States and many other coun- erty’, he states that power can only be rightfully tries have made it illegal to deliberately alter the exercised over any person against their will in
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order to prevent harm to others. People are entitled to the fruits of their labour and freedom in their own conduct, so long as said conduct does not infringe upon the freedom or rights of others. It holds that the state and in general those who hold power have no moral authority to coerce people into acting out what is (by others) conceived to be their self-interest. Leading the laissez-faire camp are free-market libertarians who believe that justice consists in respecting and upholding the voluntary choices made by consenting adults (Sandel, 2009). In libertarian theory, the basic (ideal) structure of society follows from and is justified by these core ideas in the form of free markets, property rights, free exchange, a minimal state, and formalised rights (Perry, 1997; Zwolinski, 2016). Insofar as these ideas concern the rights of parents to their offspring, most libertarians hold that the principles of their ideology do not infringe upon the generally held idea that parents have the authority in relation to their children to decide for them even over their (potential) objections (Lipson &Vallentyne, 1991). 3. The libertarian view on the issue As a society, ideally, we aim to preserve our species, and, if possible, to evolve. But can this be done without considering the ethical implications? The academic ethical debate is lively and diverse. On one hand, libertarians argue that we should be able to choose freely if, how, and when to intervene in our genes. Any restrictions would infringe our freedom of choice and would therefore be unethical. Bailey argues, for instance, that the individual, not a legislative or regulatory body, is best positioned to judge what behaviours and alterations are appropriate regarding themselves (Bailey, 2005).
Libertarian philosophy, in fact, as mentioned supra, sees the harm principle as the only acceptable rationale in limiting the liberty of other rational human beings. In other words, libertarians accept laws and policies that are in place to prevent individuals from harming others. At the same time, and consequently, they reject measures that seek to prevent self-harm and ‘victimless’ crimes (Borenstein, 2009). Persson and Savulescu (as cited by Giubilini & Sanyal, 2015) stipulate that moral enhancement is morally obligatory, at least if we want to protect the human species from behaviours such as terrorist attacks or depletion of natural resources, that put at risk its very existence. Others go even further. The libertarian philosopher Robert Nozick proposed a ‘genetic supermarket’ that would enable parents to order children by design without imposing a single way on the society as a whole (Nozick, 1984). In respect to John Rawls, one of the leading philosophers of American liberalism (though not a libertarian himself), one can argue that in his classic, On Liberty (2011), he offered a brief endorsement of non-coercive eugenics. Even in a society that agrees to share the benefits and burdens of the genetic lottery, it is ‘in the interest of each other to have greater natural assets’, Rawls wrote. ‘This enables him to pursue a preferred plan of life.’ The parties to the social contract ‘want to ensure the best genetic endowment for their descendants (assuming their own to be fixed).’ Eugenic policies are therefore not only permissible but required as a matter of justice. ‘Thus, over time a society is to take steps at least to preserve the general level of natural abilities and to prevent the diffusion of serious defects.’ Non-libertarian philosophers, instead, seem to be taking the opposing side in this debate. Some strongly warn of the catastrophic effects that the usage of this technology on a large scale could have. Michael Sandel, for instance, claims that
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REFLECTIONS the problem with eugenics and genetic engineering is that they represent the one-sided triumph of wilfulness over giftedness, of dominion over reverence, of moulding over beholding. Sandel also argues that the problem is not that parents usurp the autonomy of a child they design, but that the problem lies in the hubris of the designing parents, in their drive to master the mystery of birth. Even if this disposition did not make parents tyrants to their children, it would disfigure the relation between parent and child, and deprive the parent of the humility and enlarged human sympathies that openness to the unbidden can cultivate (Sandel, 2004). It threatens our appreciation of life as a gift, and might leave us with nothing to affirm or behold outside our own will. All in all, for Sandel, one of the restraints of this drive is an appreciation for features that are seen as gifts to be cherished as they are.
what we can cut or amend in our DNA. Many questions still arise regarding this topic. There still is a long way to go in relation to this issue and much research is yet to be elaborated and carried out before this technology can be taken lightly. It is up to society as a whole to address the issue and resolve it within the ethical framework.
Undoubtedly, things are not plain and simple. Both parties have strong arguments, but evolution is inevitable. Since there is a sense that we have reached our biological limits, many aim to evolve through technology, and thus we must be careful which path we choose.
To conclude, I think this issue carries too much importance to be left in the hands of the individuals and that is why a pure libertarian approach should not be seen as a viable solution. Among all these uncertainties, one thing is clear: we are challenging the laws of nature and we need to decide the path that we are going to walk on. It is wiser to walk on a paved road than through a jungle, and therefore a regulation can be the road we need. An enforced regulation, in which law-makers, scientists and philosophers come together and have their own say, might be a solution. Law has to get rid of its bad habit of always being one step behind the social reality and try to discreetly anticipate unpleasant outcomes, and, more importantly, keep a balance between individual freedom and the urge to control.
These technological advances are impossible to prevent. It is necessary to have an ex ante dialogue between the different facets of society in order to regulate and control the development of this type of technology. The debate will allow society and science to come up with a conclusion on how to approach these new technologies, within the pre-imposed ethical limits. Although we are getting more and more knowledge about this technology, it is still almost a terra incognita. This makes it very complicated and difficult to identify the consequences in the short and long term, and to be able to know
By RÄƒzvan-Alexandru MÄƒrginean BabeČ™-Bolyai University, Romania
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Lawyr.it Legal Dictionary
Want to submit an article for our next issue but legal English scares you? Check our Legal Dictionary! There are more than 160 terms waiting for you. www.lawyr.it
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REFLECTIONS Manslaughter committed by a medical specialist Introduction
Sabina Stefana Hutu
Medical law is a developing field of law, which means that there is not much theory nor research done on the topic. All medical errors for which a doctor is imputable can be considered a part of the much wider known term of “mal-
There is no such thing as a clear delimitation between civil liability and criminal medical liability, both being considered part of the larger notion of malpractice. Medical malpractice is defined in Romania (Law 95/2006) in accordance with the medical system reform concerning medical misconduct as being “a vocational error committed during the medical or medicalpharmaceutical practice, generating damage towards the patient. This article will highlight the most important opinions from the Romanian juridical literature on the criminal medical liability side of malpractice - manslaughter committed by the doctor. I am going to describe the difference between medical liability and ordinary law liability and the standard procedure used when analysing the doctor’s guilt. Finally, I will trying to fight the opinion according to which the doctor should be responsible when the state is, in fact, guilty of not providing the material means that are necessary for performing the medical act safely.
Manslaughter in Romanian Criminal Law Manslaughter is a crime sanctioned by Article 192 of the Romanian Criminal Code. In cases of such a criminal offence, the legislator seeks to punish those found guilty of the crime through provisions which classify the killing of a person as an involuntary wrongdoing. This violation also includes two aggravated forms. The second paragraph of Article 192 defines ‘manslaughter as the consequence of inobservance of legal dispositions or of the measures of precaution for exercising a profession or a trade, or for the performance of an activity’. The punishment for the aggravated form is imprisonment from 2 to 7 years. This form was named in doctrine ‘occupational manslaughter’. By intending to define occupational manslaughter, the doctrine provides that there are three types (culpa lato, culpa levis, and culpa levissima) according to the offender’s level of knowledge in its field of expertise. The conclusion is that the offenders will face criminal responsibility if they were aware of the provisions or measures of precautions, but acted without taking them into account, or if they had no knowledge of the provisions, but they should have, or at least had the possibility of knowing them. From here on out, we shall only refer to cases in which the applicability of the incriminating text applies to doctors. Criminal liability in the medical profession A medical career has its specific characteristics along with moral and social implications which modify to some extent the meaning of the notion of culpable conduct – compared to what is
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expected from another professional in a different field. Even so, a doctor is not exempted from criminal liability. The lack of criminal liability in the medical profession would cause medics who do not possess satisfactory theoretical or practical competences to remain within the medical field. The potential added value such doctors might bring to the field within the limits of their competences would come with a high risk of damage for the physical integrity, health or even lives of some patients, therefore the system of justice must act upon it. Therefore, the doctor could be prosecuted due to not interfering or interfering in a wrong manner. It is certain that in each case a proportionate relation should always exist between the deed and its consequences. The causal nature of this relation should never be broken or corrupted by any exterior factors or occurrence. Liability under ordinary law and liability for a medical act - comparison Right from the off, we must become aware of the distinction between liability under ordinary law - conduct existing pursuant to the general law of manslaughter in an aggravated manner, and the liability linked to the medical act- which is established through a more rigorous control. In order to determine if we are, indeed, talking about a malpractice situation, a difference must be made between a case of failure by hazard and one that results from the doctor’s own error. In the first category, for example, we could include a situation in which the doctor finds himself under the influence of psychoactive substances while working, followed by the death of the patient. Here, we have to deal with liability pursuant to ordinary law, because the source of the liability does not include a medical act (such as taking a wrong medical decision), but it relates to aspects of the private life of the doctor
(the decision to take psychoactive substances). In the second category, we include liability linked to the proper medical act. From an objective perspective, the illicit medical act can be commissive or omissive, and it can be classified as an improper medical fault (errors such as wrong diagnosis in controlling the medical act, forgetting certain objects inside a patient’s body, prescribing faulty treatment) or the breach of the obligation to inform the patient (the doctorpatient relationship is not just a simple work relationship, in this context being of high importance and risk). On a larger scale, a medical act is to be considered faulty when it is clear that the doctor did not act pursuant to a conduct which the medical science would have imposed. The doctor is obliged to intervene in order to prolong a patient’s life, even if the patient suffers from an immedicable disease. One must take into consideration certain standards when identifying the existence or the nonexistence of culpable conduct. If the standards were respected, no matter the state of the patient, the doctor is not to be held criminally liable. These standards have both a scientific side (theoretical knowledge regarding the treatment) and a practical side (the doctor’s practical experience regarding the treatment). This is the reason why a doctor is required to theoretically know a medical procedure, but also have practical experience. The medical standards are applied differently on a case-to-case basis. Therefore, even if an error in diagnosing does not represent a culpable act for a general practitioner, it can still be culpable when made by a specialist, because the medical standards required differ in such situations. Medical standards are also established in accordance with the conditions under which a procedure is completed by the doctor. Consequently, it is possible that an error in a diagnostic made by a doctor which works in a hospital during times of war to not reach culpable heights, in contrast with actions undertaken in regular
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REFLECTIONS conditions. The same principle applies when acknowledging that the medical standards differ from country to country. Material and human resources are key elements of the medical act, and only a hypocritical approach would consider sanctioning a doctor because the society has not provided more resources. According to these standards and to the differences between liability under ordinary law and liability linked to the medical act, these must be sanctioned differently. First of all, in the case of a medical act, the evaluation of the culpable conduct should always be done ex-ante and never post factum (as it is usually done). The analysis of the error is done in accordance with the moment of the performance of said medical act, not when the consequences occur, even if in time the medical science would evolve, and the treatment recommended at the time would be considered later dangerous. Secondly, it has to be specified that the activity of the doctor is governed by the principle of freedom when it comes to deciding upon a medical treatment. This means that a doctor has the ability to propose a different approach from the standard decided by traditional medicine, as long as it does not expose the patient to a greater risk than the one expected from the prescribed treatment. In such a situation, there is no culpable conduct in the doctor’s effort, but a concretisation of the principle of freedom in medical practice when it comes to choosing the treatment. The existence of liability must be determined in accordance with the general humanistic obligation of the doctor to inform, to supervise and to take care of the patient. If liability is automatically attracted upon a doctor if he commits an error, this is equivalent to repressing the spirit of initiative. On the other hand, diminishing the legal consequences of a diagnostic or medical treatment would not be possible, as this would offer privilege to a certain category
of professionals. When there are certain verified clinical procedures, a doctor is not allowed to derogate from them but has to apply them to the extent of which they are found in nowadays modern practice. Thirdly, medical conduct also means the obligation of a permanent training of a doctor. In case a medical professional is not prepared theoretically and practically for the new medical standards, following the application of procedures that are considered unsatisfying or even dangerous at the moment, culpable conduct does exist. The level of documentation required from a doctor must be at least reasonable. The medical fault in case of doctors who work in circumstances with a higher risk for a patient’s health must be appreciated in each case accordingly, through analysing the means used by the doctor and not the result. In the case of manslaughter, the situation is assessed in accordance with the result - the death of a person. The analysis of the medical fault from a criminal law perspective should not be done only in accordance with the legal definition of this form of guilt. It is absolutely obvious that a doctor predicts the result of its culpable conduct and it is usually not based on the objective circumstances of the patient’s demise. The decisive element in the determination of fault (seen as a component of guilt) lays in the approachability degree of the result. One of the major difficulties in the criminal sanctioning of manslaughter results from the existence or non-existence of proof for a medical fault. Most of the time in the Romanian system, the forensic expertise is considered to be absolute proof, whether incriminating or exculpatory. Instead, the judge is able to propose a different solution from the result of the expertise when the doctor’s fault is shown by clear evidence (for example, when the doctor forgets
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objects inside the patient during surgery). Doctors vs. State - who bears the responsibility? It has been shown before in the doctrine that this sanctioned conduct can include organisational activities as well. For example, in a specific situation where a patient is not transferred quickly enough to a specialized clinic, we could discuss about faulty management that could also create a right to ask for criminal liability of the person who was in charge of the case. Other examples of errors caused by logistical matters are the use of unqualified or exhausted medical staff, the usage of faulty equipment or instruments improper to the medical act. It is noticeable that among these examples, based on relevant case law in the field, there are situations in which doctors should not be considered guilty. The innocence should be based on the fact that doctors are sometimes placed in positions where they have to work in hospitals which lack both the material and human resource necessary for saving lives. This is the reason why the ‘organisational errors’ are not necessarily a result of doctors’ behaviour, but rather the result of the State’s attitude in respect of the medical system.
tive obligations, it is to be taken into account the medical illicit acts created through organisational errors, strictly limited to cases in which the doctor has a choice, but chooses wrongly (not taking into account the measures imposed by the law) or refuses to take action. In cases in which the State does not respect its positive obligations, it is not the doctor to be blamed for a faulty outcome, as long as the doctor cannot be held responsible for the problems inherent to the medical system. Conclusion To be a doctor is one of the most noble professions and there must be no greater satisfaction than seeing how your efforts can save a life. Given that some of these professionals fulfil their duties in good faith, one must nevertheless not dismiss the fact that they are criminally liable. However, this liability should intervene only after a thorough analysis on the said doctor’ s liable behaviour. It is this procedure that I have tried to review, as a result of academic expertise. To conclude, I strongly believe that medical liability should be given a lot more importance, since its purpose is that of defending one of the fundamental parts of the society.
The European Court of Human Rights’ (ECHR) case law establishes that a human’s right to life has a dualistic nature, including both the individual’s interest in its own rights and the detached interest of the state regarding the lives of people under the state’s jurisdiction. Therefore, the State has an obligation to intervene in order to save lives. Some examples of ways in which this obligation must be fulfilled could be equipping hospitals with modern technology, hiring a proper number of well-trained doctors or supporting medical research. In accordance with how much a state invests to respect these posi-
By Sabina Stefana Hutu Babeș-Bolyai University, Romania
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INTERNATIONAL FOCUS Who is to pay for Ukrainian internally displaced persons? 1. The problem and a of the country (The Ministry of Social Policy proposed solution of Ukraine, Press-Release dated February 5, 2018). One of the most significant outcomes of Nowadays, the problem of IDPs is being dealt the armed conflict in with, yet it leaves much to be desired. In orUkraine is the influx of der to cope with the problem Ukraine has displaced citizens from adopted a law on protecting IDPs and pays the Donbass region and social assistance at the rate of 1,000 Ukrainthe Crimean Peninsu- ian hryvnas (approximately 32 euros) per la. Internally displaced month. Also, a wide range of international orpersons (IDPs) are per- ganisations and donor states supply funds to Hordii Rumiantsev sons or groups of per- Ukraine for the IDPs’ needs. However, such sons who have been forced or obliged to flee measures are inadequate: neither social asor to leave their homes or places of habitual sistance, due to its small amount, nor donors’ residence, in particular as a result of or in funds, due to their misallocations, reach the order to avoid the effects of armed conflict, needs of Ukrainian IDPs. For instance, the situations of generalised violence, violations employment situation for IDPs deteriorates. of human rights or natural or human-made In June 2018, 42% of the IDPs surveyed by disasters, and who have not crossed an in- the International Organisation for Migration ternationally recognised state border (Art. 2/ (IOM) were employed, which reflects a 6% Guiding Principles on Internal Displacement, drop from March 2018. Also, the average inRepresentative of the Secretary-General of come for an IDP has continued to fall since the United Nations, 1998). December 2017. By June 2018 it had fallen to less than UAH 2,100, or USD 77, per month. The problem of internally displaced persons (National Monitoring System Report on the in Ukraine may be approached from two Situation of Internally Displaced Persons). perspectives. Firstly, there is a wide range In terms of misallocations of donors’ funds, of problems those people face while fleeing there is a striking example with hostels for from conflict-affected areas. Having moved IDPs in Sloviansk and Kramatorsk. Thus, the to government-controlled territories, people EU provided funds to Ukraine for the reconoften face unemployment, financial difficulstruction of hostels for internally displaced ties, and lack of housing. Secondly, the influx persons in Sloviansk and Kramatorsk, but the of displaced Ukrainians, which as of February funds have not been properly used and now 5, 2018 amounts to 1,493,057, places a burthe EU demands to return the money (Interden on the Ukrainian economy and also creview of David Stulik, the EU delegation to ates social tensions in addition to the existUkraine). Finally, and more importantly, all ing conflict in the above-mentioned regions
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these measures are aimed at dealing with the olations of human rights lead to (ii) reasonconsequences rather than the causes. able fear that similar events ‘may happen to me’ in case of not leaving (iii) which leads It is clear that the current state of affairs is not to the forced character of the displacement satisfactory for all the sides involved: for IDPs (iv) which falls within the scope of the right because of lack of real protection and support, to freedom of movement. While the link befor the state of Ukraine because of its inability tween the third and the fourth components to pay more, and for donors because of their does not raise any questions, the link between tiredness of misallocations of their funds. the first three is the main problem in proving It appears that the only feasible and logical Russia’s responsibility. solution would be to address these issues to Russia, whose wrongdoings are the root cause Another challenge is the absence of binding of IDPs’ problems. Furthermore, such a solu- provisions in instruments of international tion will provide not only material satisfac- law defining the notion of forced displacetion, but also a moral one, for the victims of ment. In this regard, the only feasible solution Russia’s misconduct. Another argument, and would be to refer to soft-law and case-law. In probably the most important, is that there is terms of soft-law, quite a powerful argument an effective tool for solving this problem: the for the forced character of the displacement European Court of Human Rights. may be found in the above-mentioned notion of the term IDP contained in the Guiding 2. A new approach to solving the problem Principles on Internal Displacement (hereinIt must be said that addressing this issue to after referred as to Guiding Principles). Thus, Russia is not an easy task, for it did not di- according to the Guiding Principles, the derectly force displaced people to leave. Still, cision to flee in order to avoid the effects of there is no doubt that if Russia, even after the armed conflict, situations of generalised viooccupation of Crimea or engineering the con- lence or violations of human rights fall within flict in Donbass, would have refrained from the scope of forced displacement. persecution and violation of human rights, In terms of case-law, it must be said that in such a large number of people would not have spite of having many actions relating to the chosen to relocate. This is particularly true of right to freedom of movement, the European harassment and discrimination against ethnic Court of Human Rights (ECtHR) does not Ukrainians, Crimean Tatars, representatives provide relevant judgments for the specific of religious minorities, minority groups in topic analysed in this article. For example, general, and activists who opposed the March in the case of Timishev v. Russia, the Court 16 ‘referendum’ in Crimea (Report on the huestablished the violation of the right to freeman rights situation in Ukraine, July 2014). dom of movement, however, there had been a Thus, there is an element of forcibility in direct decision of the traffic police to refuse this situation, which needs to be developed. the applicant to cross the border between two There are also other elements which may col- subjects of the Russian Federation (ECtHR, lectively demonstrate Russia’s fault and could Timishev v. Russia, 2005). In the case Tatishbe chronologically described as follows: (i) vili v. Russia, the Court found a violation of the atmosphere of disregard and massive vi- Protocol No. 4, Article 2 (the right to free-
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INTERNATIONAL FOCUS dom of movement), but again a direct decision, namely a denial of registration of the applicant’s flat in Moscow took place (ECtHR, Tatishvili v. Russia, 2007). Nevertheless, applicable cases may be found in the case-law of the Inter-American Court of Human Rights (hereinafter referred to as IACHR). There are three cases which need to be taken into account: Ituango Massacres v. Colombia (2006), Mapiripán Massacre v. Colombia (2005), and Moiwana Community v. Suriname (2005). The factual background in all of the cases is similar: the fleeing was preceded by a massacre or a military operation accompanied by murders; the victims of displacements were not the victims of massacres, but being afraid for their safety, they decided to leave. While the reasoning of the Court is generally similar in all three cases, they have their own peculiarities and approaches to determine the situation of the violation of human rights as a cause of forced displacement. In all of the cases, the Court found the violation of Article 22 (freedom of movement) of the American Convention on Human Rights. 3. Relevant case-law in support of the approach 3.1.
’Mapiripán Massacre’ v. Colombia
Through the judgement in the ‘Mapiripán Massacre’ v. Colombia case, the IACHR emphasises that in order to define the content and scope of Article 22 of the American Convention on Human Rights (freedom of movement) in the context of domestic displacement, the content of the Guiding Principles on Internal Displacement issued in 1998 by the Representative of the Secretary-General of the United Nations is especially significant (IACHR, ‘Mapiripán Massacre’ v. Colombia,
2005, § 171). Also, in its decision, the Court mentioned that the fear of similar events happening again to the next of kin should be regarded as a situation when people were forced into displacement. Additionally, in order to apply the notion of forced displacement, as set in the Guiding Principles, another argument of the Court is relevant, especially bearing in mind the possibility of individual claims to the ECtHR. Thus, the Court mentioned that human rights treaties are live instruments, whose interpretation must be adjusted to the changing times and, specifically, to current living conditions (Ibid., § 187). The importance of such an approach consists in the existence of the principle of dynamic interpretation in the practice of the ECtHR, which makes it possible for the Court, while interpreting treaties, not to adhere to the strict interpretation of the right to freedom of movement in case of an individual complaint against Russia. 3.2.
‘Ituango Massacres’ v. Columbia
In this case, the Court upheld the forcibility of displacement as a result of massive violation of human rights and again emphasised the importance of current living conditions and changing times while interpreting the provisions of Article 22 (right to freedom of movement). Unlike the decision in ‘Mapiripán Massacre’ v. Colombia, where the situation of violation of the most fundamental rights is mentioned as a cause of forced displacement, this decision may be characterised as the one decreasing the degree of gravity for fleeing. In particular, the Court mentioned that theft of livestock by the United Self-Defense Forces of Colombia, among other things, was the reason for fleeing (IACHR, Ituango Massacres v. Colombia, 2006, § 234). Such an example ap-
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pears to be important in the light of the socalled ‘bloodless seizing’ of Crimea and the high probability of Russia’s arguing that the Colombian cases are not applicable in the case of Crimea, for there were not any massacres. 3.3.
Moiwana Community v. Suriname
This is the richest case in terms of developing the notion of forced displacement. In support of our previous statement regarding the difficulty of linking the atmosphere of violation of human rights and forced character of displacement, the Court, having used the iura novit curia principle, which means that the court may decide a case without being limited to the legal arguments advanced by the parties, found a violation of Article 22, in spite of the fact that the violation had not been alleged in the case’s pleadings. It was stated that the Court has the duty to apply all appropriate legal standards – even when not expressly invoked by the parties – with the understanding that parties had the opportunity to express their respective positions in regard to the relevant facts (IACHR, Moiwana Community v. Suriname, 2005, § 107). This example may, on one hand, prove the non-obviousness of the alleged violation, but on the other hand, the very fact of the Court’s interference underlines the significance and importance of dealing with such hidden violations. Another peculiarity of the case is the arguments of the State of Colombia presented during the proceedings, which the Court did not find to be relevant. The State argued that IDPs move freely throughout the country and that no communications have thereby ever reached the Government of Suriname regarding the fact that the rights of those persons were violated or that they were intimidated (Ibid., § 106). Such dismissal may be quite useful in
showing Russia’s responsibility, for there is a high probability that Russia will deny the fact of forced displacement based on the physical ability of the victims to leave the Crimean Peninsula and argue that that relocation was their own choice. Also, in the case of Moiwana Community v. Suriname, the Court provides some useful notions, which could be used while proving Russia’s accountability. Particularly, the Court introduces the term ‘de facto restriction’ in relation to the situation of massive disregard for human rights making people flee their places of habitual residence. 4. Conclusions Before drawing any conclusions, it is necessary to emphasise that the present article keeps its focus on the possibility of individual claims against Russia, not inter-states ones. Still, the inter-states claims, both at the level of International Court of Justice and ECtHR, may be relevant and effective as well. Summarising the above-mentioned data and arguments, it appears to be without doubt that the raised question and proposed solution are important and feasible, respectively. Also, agreeing with the proposed approach to solving the problem of IDPs, it may be concluded that there is a need for popularising individual claims against Russia among the victims of internal displacement. Another conclusion is that the international legal framework for the protection of IDPs is in need of further development, especially taking into account the absence of any binding sources concerning the rights of IDPs.
By Hordii Rumiantsev, Ivan Franko National University of Lviv, Lawyer at the Regional Centre for Human Rights, Lviv
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INTERNATIONAL FOCUS Secularism and Nativity scenes, an impossible wedding? A legal perspective 1. Introduction In recent years, while approaching Christmas, controversies about secularism were raised in some European countries. In Belgium, for example, the Nativity scene was removed from the Holsbeek Town hall (a small town near Brussels) unLucas Pinelli der the pressure of lay activists in 2016. In 2017, some schools decided to remove the cross on the mitre of Saint Nicholas who is celebrated on December 6 as patron saint of schoolchildren.
This contribution attempts to bring serenity and a juridical point of view to this debate. I will first map out the situations that led to the decisions of the French Council of State and their consequences. Secondly, I will analyse the issue from a European perspective by examining the European Court of Human Rights’ (ECHR) case-law. 2. The value of French secularism and the decisions of the Council of State. Already in 2010 the Administrative Court of Amiens stated that the Nativity scene on a public square to be illegal arguing that it depicted Mary and Joseph in a first set-up and Jesus after December 25. The litigations that went to the Council of State started in December 2012 when two freethought federations sent letters to the Mayor of Melun and the President of the General Council of Vendée, to ask them not to install Nativity scenes in their buildings. These authorities did not reply to the request and the federations decided to bring these cases to court.
In France, where secularism is embedded in the Constitution, the debate was even deeper and the question of whether Nativity scenes should be prohibited in public spaces was brought to the courts. The two decisions issued by the French Council of State on November 9, 2016 did not close the debate but have been crucial in the determination of ‘legal’ and ‘il- While the Administrative Court of Melun conlegal’ Nativity scenes. sidered that the Nativity scene is not religious This subject opposes lay activists, who are but later was criticised by the Administrative strongly against all kind of religious signs in Court of Appeal of Paris, the Administrative public places, to people pretending to defend Court of Nantes, where the Nativity scene was the Christian traditions of Europe, leading to considered as having a religious meaning, was also censored by the Administrative Court of passionate debates. Appeal of Nantes. Thus, two similar cases led In the meantime, in many Central and East- to two contradictory decisions. ern European countries, religion and national identity are closely entwined and we assist to a In its two decisions on November 9, 2016 the Council of State starts by reminding the terms kind of ‘religious revival’. of the First Article of the Constitution: “France
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shall be an indivisible, secular, democratic and social republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.” It mentions the Articles 1 and 2 of the 1905 French law on the Separation of the Churches and State that impose the obligation on Public authorities to ensure the freedom of conscience and religion. These articles also set the principles of non-subsidisation of any cult and neutrality of public agents and public services. The Council also cited Article 28 of the above law which reads: “It is forbidden, in the future, to erect or to put up any religious sign or symbol on public buildings or in any public place, except on buildings used as places of worship, on burial grounds in cemeteries, on funeral monuments and on museums or exhibition halls.” Then the Council reminds that all these Articles aim to ensure the neutrality of public authorities by forbidding the installation of signs or items that could express the recognition of a single religion, except for exhibitions.
ing between cultural and thus legal or instead worship and thus illegal character of a Nativity scene installation. These conditions are: the context, the installation circumstances, the existing local customs and the location of this instalment. Consequently, two principles have been established. A Nativity scene should not be installed in a public building, seat of a public authority, except if there are specific circumstances that can give a cultural character to it. On the contrary, a Nativity scene can be installed in other public places as long as there is no sign of proselytising or claiming of religious opinions in the behaviour of public authorities. Following the principles shown, the Council of State cancelled the decision of the Administrative Court of Appeal of Paris and declared the Nativity scene in Melun illegal. In the other case it cancelled the previous decision but redirected the case to the Administrative Court of Appeal of Nantes that finally confirmed the legality of the installation, the Council of State concluded the inadmissibility of the appeal against this last decision in February 2018.
Here it is important to mention that “the no- These Council’s judgements of November 2016 tion of neutrality is an offshoot of juridical were enforced by several other Administrative doctrine and by no means a raw legal given.” courts since then. After reminding of the constitutional principles, the Council of State analysed in depth the nature and the specificities of the Nativity scene. Although being part of the Christian iconography, this symbol could have become a traditional decorative element of the festive season, stated the Council. In other words, it distinguishes between the cultural and the worship character of the Nativity scene, exhibition of which is possible only regarding the cultural part.
Some authors from the non-clerical community have been very critical about these decisions. These observers assert that the judgements met the terms of Article 28 of the 1905 French law on the Separation of the Churches and State head-on by arguing that only the legislator can change the terms of a text and certainly not the judges, which is a well-established principle of Civil Law countries such as France.
However, even in Civil Law countries the power to interpret the law belongs to the judges Furthermore, the Council elaborates the con- and that is exactly what the Council did in adeditions that allow for the practical distinguish- quacy with its traditional guidelines which are,
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INTERNATIONAL FOCUS according to Pr. Jean RIVERO (1910-2001), that we will be able to extract the applicable “the adherence to liberalism and the sense of law in this area at European level. reality.” Even though the issue of Nativity scenes in Other observers argued likewise for a long public places was never brought before the time, that a negative and rigid conception of ECHR, it is possible to imagine the position the constitutional principles of neutrality is not that the Court would have taken towards it necessary in view of the French Constitution. from the renowned ECHR, Lautsi v. Italy 2011 case which was about hanging crucifixes on 3. Nativity scenes in view of the European walls in public schools. Court of Human Rights. In this case the Grand Chamber - contradictThe European Convention on Human Rights ing the Second Section - stated that at point 72 does not prohibit religious signs in public plac- that: “Furthermore, a crucifix on a wall is an es but two articles can be linked to this issue. essentially passive symbol and this point is of Article 9 imposes a duty of neutrality and im- importance in the Court’s view, particularly having regard to the principle of neutrality. It partiality and states that: cannot be deemed to have an influence on pu„1. Everyone has the right to freedom of pils comparable to that of didactic speech or thought, conscience and religion; this right in- participation in religious activities.” cludes freedom to change his religion or belief and freedom, either alone or in community It is possible to argue that, as to Nativity scenes, with others and in public or private, to mani- there is no doubt that it is a passive symbol as fest his religion or belief, in worship, teaching, well and it could not imply any form of proselytizing. practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
The Court went further and stated that the decision whether or not to perpetuate a tradition falls within the national margin of appreciation, emphasizing the great diversity between the States among Europe on this topic. However, of course, the reference to a tradition does not relieve a Contracting State of its obligations to respect the rights enshrined in the Convention. The Court finally concluded that the lack of European consensus on the question of the presence of religious symbol in State schools justifies the large margin of appreciation let to the State.
Article 14 - which cannot be applied independently and must be combined with other articles - states that: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or The eventual Court’s position on the question social origin, association with a national mi- of the presence of religious symbols in public places should not easily differ. nority, property, birth or other status.”
Thus, it is through the case-law of the ECHR On this point the judge Bonello expressed a
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strong view in his concurring opinion: “A court of human rights cannot allow itself to suffer from historical Alzheimer’s. It has no right to disregard the cultural continuum of a nation’s flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that ‘customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals’ (Justin Marozzi, The Man who Invented History, John Murray, 2009, p. 97)”
context, the installation circumstances, the existing local customs and the location of this installation) are fundamental to distinguish between Nativity scenes raised for political purpose and the ones that reflect national or local traditions, the ECHR taking wisely refuge in the national margin of appreciation on this subject. Then, the essentially passive nature of the Nativity scene as stated by the ECHR regarding the hanging of crucifixes has to be taken into consideration, as well. In fact, the secular State is essential in granting freedom of thought and religion and avoiding any kind of State proselytizing. This, however, does not mean that each national or local tradition has to be invalidated because of their religious origin.
Finally, there is no peremptory answer as to the legality of Nativity scenes in public places and One could argue that it would be arduous to it is a matter of facts that, as long as there is determine when a religious symbol turns into no sign of proselytizing or claiming of religious a cultural one and above all how and who de- opinions in the behaviour of public authorities, cides that. there should be no reason to forbid them in public places. It is then up to the national legislators and courts to pass laws regulating the use of NaBy Lucas Pinelli tivity scenes in public spaces and to interpret Free University of Brussels, Belgium them. That is in substance what the French Council of State did in the decisions examined above. 4. Conclusion The conclusions of the ECHR’s Grand Chamber decision in the Lautsi v. Italy case must be combined with the ones from the French Council of State to decide upon the legality of Nativity scenes in public places. First, as stated by the Council of State, the Nativity scene can inherit a cultural character overtaking its religious origin. In this regard, the criteria that the Council established (the
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INTERNATIONAL FOCUS The Role of Non-Governmental Organisations in International Economic Law 1. Introduction
In the present time, non-governmental organisations (NGOs) play an important role in international economic relations. They affect the international system by monitoring state performance or advocating new poliJoana Gomes Beirao cy agendas. The work of NGOs focuses on a variety of fields, e.g. economy, human rights, development, and the environment. Their activities have also found a prominent place in the WTO (World Trade Organisation) and in the United Nations system. The recognition of NGO’s de facto (factual) influence in international relations and the absence of international regulation for their creation and activity are the reasons why it is particularly important to establish their de iure (legal) status in international economic law, including their rights and obligations. This is the main objective of this short paper.
from states, oriented towards the rule of law, pursue public rather than private goals, and possess minimal organisational structure”. Concerning their reach, one may further distinguish between national and international NGOs, depending on whether the goals and the organisational structure transcend national boundaries or not. Secondly, it is necessary to describe their activities in international economic relations. As mentioned above, NGOs play important and varied roles. They are invited as observers to the meetings of global international economic organisations or to participate in sidedebates. They are also admitted to present observations in state to state dispute settlements as amicus curiae (a person who is not one of the litigants but is interested in the issue, files a brief or participates in the argumentation of the case). An example of this is provided by the famous WTO’s US – Shrimp case in which the US attached to its appellant’s submission amicus curiae observations from three groups of NGOs (Oesch, 2014, p. 3; Qureschi & Evans, 1999, p. 200). These observations were accepted by the Appellate Body as part of the US submission. In a more general way, we can distinguish between the role of NGOs in the formation of new international law at international level, the role of NGOs in the creation of new international law at national level, and the international verification and monitoring function of NGOs.
Firstly, it is essential to provide a definition of NGO. The present article has chosen to adopt the following one. Taking into account the definitions provided by the OECD (Organisation for Economic Co-operation and Development), the ECOSOC (United Nations Economic and Social Council), and the COE (Council of Europe), Hobe (2010, p. 2) 2. NGO participation in the WTO defines NGOs as “organisations founded by The increasingly active role of NGOs in disprivate individuals, which are independent pute settlement proceedings can be seen as a
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consequence of the criticism on the working of the GATT (General Agreement on Tariffs and Trade), the WTO, particularly strong at the Seattle Ministerial Conference in 1999. This reason can also explain the readiness to allow the participation of NGOs in meetings and debates. A similar explanation is the one provided by Mehta (2001, p. 1-2). He argues that, because various interest groups feel that their governments do not adequately respect their interests internationally, there is a need to create a separate entity which advocates for those overlooked interests in the international community. The author also mentions the main arguments presented by the international community against NGO participation in the WTO. Firstly, it is argued that as the WTO is an inter-governmental body, NGOs cannot participate. In addition, some believe that NGOs should pressure the authorities in their own countries instead of acting in the international community. Finally, not all NGOs have the resources to maintain a delegation in Geneva, which is a barrier to the participation in the WTO. These arguments do not seem to be verified. Participation of NGOs in the WTO process is not going to undermine the inter-governmental character of the WTO. It rather has the potential to enhance equity in the whole process, since NGOs enjoy a greater degree of freedom than many developing countries in todayâ€™s power game. They can be more vocal in furthering the interests of the ones in need, for example. Regarding the second argument against NGO participation, various interest groups are not able to influence their national officials regarding the need for NGOs. It can even be considered positive that â€“ through their participation â€“ there is an increased representation of the interests affected by the in-
ternational decisions and the result would be a more democratic and fair process. It is also worth mentioning that some trans-border issues and interests are not well-represented by the states (precisely because of their nature) and NGO participation could be beneficial in this regard. Environmental concerns are clear examples. As for the last argument, it is true that some NGOs, to some extent, enjoy better opportunities than their counterparts. However, this cannot be used as an excuse to block such participation in general. Many NGOs are already present in Geneva, either directly or through their networks. Besides, many NGOs that have the resources sympathise with the interests pursued by the organisations that do not possess the same resources and act on them. 3. Problems of legitimacy After this assessment of the role of NGOs in international economic relations, particularly in the WTO, it is important to analyse some additional problems arising from the mentioned participation, particularly whether there are legitimacy issues regarding NGOs. For this reason, it is worth asking: How representative are NGOs? How are they financed? Are there satisfactory checks and balances in terms of their increased lobbying power? These questions are complicated to answer due to the fact that NGOs are not transparent, consequently, it is difficult to precisely verify how their creation and activity is conducted and whose interests they ultimately pursue. It is also true that NGOs rarely possess a democratic mandate and their internal structures are often not resulting from democratic procedures. Nevertheless, this does not cause fundamental problems and represents no reason against their participation in international law-making and law enforcement.
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INTERNATIONAL FOCUS Furthermore, it is evident that democratic and transparent structures – in contrast with states – cannot be expected from NGOs. Not even international governmental organisations can fulfil the democratic principle of states. For example, the European Union is frequently criticised for its lack of democracy. Nevertheless, the EU is recognised by the international community as a subject of law. Therefore, when observing organisations outside the states, one should rather concentrate on the participatory surrogates for democratic legitimacy, e.g. efficiency, transparency, accountability, and ex post (based on knowledge and retrospection of the) acceptance of public acts.
organisation. For example, within the United Nations (UN) system, Article 71 of the UN Charter establishes that the ECOSOC may make suitable arrangements for consultation with NGOs. The ECOSOC, therefore, is the organ responsible for granting NGOs formal access to the UN.
NGOs are generally not regarded as subjects of international law. Their legal status is not determined by international but by national law. Nevertheless, some regulations can be found at the international level, which differ from area to area and from organisation to
5. Legal status under international law
With regards to the accountability of NGOs specifically, cases like the Brent Spar incident in 1995 give rise to serious questions. In that particular case, Greenpeace acted on incorrect information and claimed that the dumping of the oil from a Shell platform into the North Sea posed an ecological threat to the region. This campaign resulted in a boycott against many of Shell’s products, which had In addition, NGOs arguably represent the a grave financial impact on the enterprise. non-state sector and the specific interests of Thus, the question of accountability is fundacommon concerns from the civil society’s mental. point of view. So, according to Charnovitz As the legal status of NGOs is determined by (2006, p. 366-368) and the theory of outputnational law, they are – at least – accountable legitimation (output legitimacy refers to the at the national level. At an international level, public assessment of the relevance and qualregulation concerning the accountability is ity of the institution’s performance), the repvery limited: ECOSOC Resolution 1996/31 of resentation of the interests of a certain civil 25 July 1996 on the Consultative relationship society is sufficient for legitimising NGOs. between the United Nations and non-governConsequently, even when NGOs cannot fulfil mental organisations demands reports from the democratic requirements expected from such NGOs which possess consultative status the states, they still represent civil society every four years. Otherwise, their participaand contribute to a pluralistic organisation of tory status can be suspended or withdrawn, global governance by representing their speand the COE applies a similar system. Howcific interests. ever, a complete international accountability 4. International regulation regime for the actions of NGOs is missing. The ever-increasing role of NGOs raises the issue of their legal status under international law. Normally, subjects of international law are those that enjoy entitlements and may be obliged by international law. As such, the clas-
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sical subjects of international law are states. Nevertheless, actors under international law include for example international governmental organisations and, arguably, individuals. The possibility of recognising subjects other than states was acknowledged by the International Court of Justice (ICJ) in the Reparation for Injuries Suffered in the Service of the United Nations case (Advisory Opinion of 11 April 1949). The ICJ stated that the “(…) subjects of the law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature may depend upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States”. This approach was later expanded by the ICJ in the LaGrand case (Germany v. United States of America, 2001). Furthermore, the Special Rapporteur of the International Law Commission, Giorgio Gaja (First Report on Responsibility of International Organisations), concluded that the approach of the ICJ to acknowledge individuals as subjects of international law may lead the Court “to assert the legal personality even of non-governmental organisations”. Nevertheless, NGOs have not explicitly and generally been recognised as subjects of international law so far. Despite its name, the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations only created a system for the establishment of the legal personality of NGOs in national laws and did not recognise the international
legal status as such. Moreover, there is no direct entitlement or obligation of NGOs under international law. However, considering their role in international law-making, it is quite probable that a change will take place in the near future. Although the current entitlements are probably insufficient to accept the legal personality of all NGOs at the moment, it is somewhat reasonable to sustain that some NGOs, due to their role in our global system, should be regarded as partial subjects of international law. When NGOs work within a legal framework of an organ or an international governmental organisation, they are involved in the exercise of public authority as, for example, in the field of the protection of human rights. Then the de facto recognition of their (partial) legal subjectivity under international law should be acknowledged. Thus, with reference to the current level of the entitlements and obligations of NGOs under international law, it may be justified to award some of them the status of “partial legal subject”, depending on their involvement in the official work of the intergovernmental organisations. 6. Conclusion The place of NGOs in international law is unclear. As it is well known, international law has evolved as a law solely shaped by states. This has the effect that governments are the most significant players in its formation and implementation. Recently, however, the number of the actors in the international system has increased and international NGOs have been acknowledged as having some legal status under international law, depending on their concrete role in international relations. International law is still based on states’ coop-
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REFLECTIONS eration in inter-governmental organisations. Yet, one of the distinct features of the current era of globalisation is the growing importance of multinational enterprises and non-governmental entities in the international system. Perhaps, they should no longer be excluded from the circle of the subjects of international law in order for the establishment of concrete rights and duties under international law, as well as their international accountability. Indeed, explicit rules are needed to constitute the international accountability of NGOs, such as a legal regime of self-regulation or a system of regulation by the states. One possibility that seems particularly remarkable is the extension of the scope of the application of human rights rules to NGOs. All these propositions, however, may prove to be difficult to implement in practice. It is clear, though, that NGOs could only be held directly accountable for their actions under international law in case they receive subject status. NGOs have influenced international economic relations and international economic
law. They represent and support the interests of the civil society and make pluralistic global governance possible. NGOs thus represent society in the international system in the era of globalisation. They contribute to global governance as far as they are involved in the law-making and the implementation processes. Moreover, they may confront governments, trying to formulate a common international interest which has been neglected by the global community. The more international law allows NGOs to actively participate in the international law-making process, the closer they will get to achieving legal personality. This â€“ as a necessary corollary â€“ will strengthen their democratic legitimacy when articulating the interests of the civil society. By Joana Gomes Beirao University of Lisbon, Portugal
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A Forensic View on Writing
A Forensic View on Writing
Reasons Behind the Enforcement of Martial Law – The Actual Ukrainian Paradigm 1. Introduction
“Martial law does not mean declaring war to Russia. It is going to be introduced for defence purposes.” – Ukrainian president Petro Poroshenko declared on 26 November 2018 in the National Security and Claudia Timofte Defence Council in Ukraine (BBC News, 2018). The proposition was to be submitted to the Ukrainian Parliament on the same day for discussion and voting, which would prove to be implemented successfully. Such a declaration and measure may seem, at first glance, relatively extreme, controversial or unprecedented, considering past situations when it was applied. The present article analyses the ongoing conflict – be it direct or sometimes indirect – between a world power, the Russian Federation, and an ex-communist state, Ukraine. The focus will be divided into different perspectives. On the one hand, I will introduce the beginnings of the conflict in 2014, the way it is viewed internationally, the international relations between the two states since that moment, and the way they are regulated. On the other hand, I intend to look through the escalation of the conflict in late November that led to Poroshenko’s measure, I will analyse whether Russia’s attitude was justified or not, and also whether martial law is the most appropriate solution in the given case, with regards to other alternatives.
2. The grounds of a world conflict The beginning of the worst East-West conflict since the Cold War has its roots in the crisis of the Crimean Peninsula, known as the Republic of Crimea, stretching from the south of Ukraine, between the Black Sea and the Sea of Azov. Regarding its historical background, it is worth mentioning that it was annexed by the Russian Empire in 1783. It turned into an autonomous republic in 1917 as a consequence of the Bolshevik revolution, following a transfer to Ukraine (under communist control at the time) in 1954, under the lead of Russian president Nikita Khrushchev. After the fall of the USSR in 1990, Ukraine gained independence and Crimea gained autonomy in 1991. Nevertheless, the 1996 Ukrainian Constitution stipulates that the Crimean legislation needs to be in accordance with the Ukrainian (Global Security, 2018). The situation took a radical turn in early 2014 when Ukraine’s pro-Moscow president, Viktor Yanukovych – who had been elected in 2010 – was removed from office as a result of the Ukrainian revolution, due to high treason accusations. The reasons for such accusations lied in his close ties with Russia and the government’s decision to abandon plans to sign an association agreement with the EU. This led to violent protests by young pro-EU Ukrainian citizens against him and his presidency. As such, he was removed from his post by the vote of the Parliament and exiled to Russia. This situation made Russia consider even more that a West-leaning Ukraine could be a threat to its interests.
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INTERNATIONAL FOCUS Therefore, Russian-backed separatists and rebels positioned themselves in opposition to the Ukrainian state in the East. By February 2014 Russia annexed Crimea, even though it had previously signed a border treaty and the Budapest Memorandum on Security Assurances with Ukraine in 1994 that guaranteed its territorial integrity. The territory, which has a Russian-speaking majority, voted to join the Federation in a referendum that Ukraine and the international community do not recognise as valid. For example, the United Nations General Assembly adopted a resolution the same year, which confirmed the integrity of Ukraine’s borders (United Nations General Assembly Resolution 68/262 of 27 March 2014). This means that the annexation of both the Crimean Republic and Sevastopol (administrative divisions of Ukraine) by Russia is illegitimate, despite its strong belief that the annexation convention is constitutional and valid. Even Vladimir Putin confessed later that when the referendum was taking place, the Russian army was present on the peninsula, the reason being more than just local self-defence (BBC News, 2018). 3. The climax and its implications
Strait on 25 November 2018. 24 Ukrainian sailors were detained in Russia, some of them got injured as well. The Ukrainian vessels were sailing from the port of Odessa in the Black Sea to the port of Mariupol in the Sea of Azov, a route used for economic purposes, with the Kerch Strait being the viable transit point between Eastern-Crimea and SouthWestern-Russia (Global Security, 2018). Before examining Poroshenko’s disputed martial law enforcement, I shall take a look at what is contested first and foremost by the international community, i.e. the legitimacy of Russia’s action, its justification or the lack thereof, as well as the elements that make this situation quite paradoxical, void of clear legal explanations, sanctions or solutions. Although a 2003 Russia-Ukraine treaty (Treaty Between the Russian Federation and Ukraine on Cooperation in the Use of the Sea of Azov and the Kerch Strait of 24 December 2003) stipulates unimpeded access to the Kerch Strait and the Sea of Azov, besides the fact that the Black Sea is free for shipping, Russia accused Ukraine of violating its territorial waters and international legislation. Consequently, Ukraine refers to this maritime clash as aggression by Russia, given the lack of recognition of any Russian territorial sovereignty over Crimea and the 2003 treaty. This treaty is still in effect, despite the annexation of Crimea, which would virtually provide Russia with jurisdiction over its territorial water. Russia’s Azov operation could certainly be seen as a strategic intent to weaken economic connections across the frontline, making Ukraine lose the port of Mariupol and loosen its blockade over Crimea, thus further destabilising the region in the context of an ongoing four-year war.
There has been a direct conflict between Russia and Ukraine since 2014 that caused significant damage and many deaths in the eastern part of Ukraine, due to the harsh intervention of Russian troops supported by rebels and separatists. This tense and unpredictable relation and the domination of the Russian Federation on the international stage culminated in late November 2018 with a widelydebated sea clash, which is considered as the most dangerous one since 2014. It included two Ukrainian gunboats and a tug being intercepted, fired at and seized by Russian border guards on their route towards the Kerch The strategy adopted by Russia could be
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grasped through the creation of a 33 metres high bridge across the strait. It stretches from Russia to Eastern-Crimea, contributing to the transportation of even more arms, men, and equipment to the territory and reduces the flow of North-South shipping in and out of the Ukrainian ports of Mariupol and Berdiansk. Things began moving rapidly only during the summer and early autumn. In May 2018 Russian vessels began stopping and delaying the shipping in the Sea of Azov, including both Ukrainian vessels and those with Western flags, imposed huge waiting costs on all vessels on their way to or from Ukrainian ports, and increased militarisation and surveillance over the Sea of Azov. At the same time, Ukraine sent 270 special forces personnel to the Azov and Black Seas in August and is also considering a possible new Ukrainian naval base in the region. (International Institute for Strategic Studies, 2018). Therefore, the actual situation could be nothing more than a visible Russian tendency of gaining more territorial supremacy based on the fragile and unstable diplomatic relations with Ukraine and by taking advantage of the lack of any clear legal act or convention that could specify the limits of the territorial rights of the states involved. 4. A controversial legal solution In pursuit of facing this maritime clash and preserving national and international stability, especially during the presidential campaign, Petro Poroshenko urged the NATO to send ships to the Sea of Azov, warning of the threat of a Russian invasion. Although Ukraine is not a member of NATO, it is supported by both the NATO and the UN, which condemn Russia’s actions. In light of an emergency meeting between Ukraine and the UN Security Council right after the in-
cident, Petro Poroshenko declared his decision of introducing martial law in Ukraine’s border regions for 30 days (half of the legal period of time normally stipulated) to the Ukrainian Parliament, which voted for its implementation. Generally speaking, the introduction of martial law suggests a severe internal decline of stability that leaves a country with no other option than the military takeover of the civil legal system. The military and other law enforcement bodies control the movement and detention of individuals within the country. In other words, “the military becomes the judge and the jury, as well as the police force”, which means that the right of the individuals to turn to a civil court in order to challenge the restrictions on their freedom is restrained (Legal Career Path, 2018). President Poroshenko seems to justify his radical decision on the state of war between his country and Russia by the brutal occupation of Crimea since 2014 and by the ongoing political dissent between pro-European and separatist rebels within Ukraine (protests at the Russian Embassy in Kiev included). Although the NATO and other Western countries support Ukraine and its policy, Russian President Vladimir Putin accused him of making this “popular” decision to increase his poll ratings in view of the March 2019 elections, considering that his ratings have plummeted so far (The Guardian, 2018). Although the fact that elections would be suspended for a while due to the shift in the legal framework may give Poroshenko time to improve his rhetoric, it could also turn out to be the contrary. In pursuit of re-establishing security, safety and stability within the country, martial law has proved to be too restrictive to regain people’s confidence in the judiciary and the state throughout history. From a
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REFLECTIONS personal point of view, restricting civil rights and liberties, infringing military orders and rules would make the situation even worse, let alone dismantling in terms of Poroshenko’s pro-European tendencies. 5. Conclusion As such, martial law and its consequences could be viewed as an action of risk-taking. Prudence, balance, and a proper application of international law would be paramount to safeguarding fundamental human rights that would temporarily be restricted. Beyond this, more viable solutions would be available: the NATO training for Kiev’s military, the Trump administration selling weaponry to Ukraine, as well as tougher economic sanctions imposed on Russia. However, such measures seem to tackle only the effects and not the roots and causes that led to the rising con-
flict. How about the Ukrainian citizens who are doubtful and fearful of the future? – We may ask. How about the harsh martial law, which is not likely to end externally as soon as hoped, its immediate consequences or the situation after its revocation? To such questions there is only one exhaustive answer: the creation and enforcement of a proper regulation for Russia and Ukraine, based on mutual consent, resulting from real and sincere diplomatic talks, with the interference of world organisations. As idealist as this perspective might seem, only law enforcement (and not a tough temporary military law) can be the key to turning dystopia into normality. By Claudia Timofte Babeș-Bolyai University, Romania
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A Forensic View on Writing
A Forensic View on Writing
A judicial overview of the European Investigation Order 1. Introduction
The European Union (further known as ‘EU’) maintains and develops an area of freedom, security and justice. Article 82 of the Treaty on Functioning of the European Union says that judicial cooperation in Sarka Silhankova criminal matters is to be based on the principle of mutual recognition of judgments and judicial decisions. Among EU countries, there were so far adopted Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union and Council Framework Decision 2008/978/ JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents, and data for use in proceedings in criminal matters and multilateral or bilateral treaties.
dence in cases with cross-border dimensions. EIO came into force on May 22, 2017. By the same date, Member States had time to implement the Directive into their national legislation. However, for instance, the Czech Republic implemented the Directive on August 16, 2018 when it was transposed into law number 104/2013 Coll, Act on International Cooperation in Criminal Matters. An EIO is a judicial decision which has been issued or validated by a judicial authority of a Member State to have one or several specific investigative measures carried out in another Member State to obtain evidence, in accordance with this Directive. EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing state. As it may seem, that issuing of an EIO may be requested by prosecutors or judges only, an EIO can be requested by a suspected or accused person as well as by lawyers on their behalf (within the framework of defence rights). 3. Procedures for the issuing Member State
2. The European Investigation Order and its Before applying the EIO we should answer the following two questions. Can the Directive be application applied to the concerned Member State? If so, The existing legal framework was fragmented which investigative measure can be used? and too complicated. A new approach was set in the Stockholm Programme adopted by the Today, the Directive is implemented in eveEuropean Council in 2009. Directive 2014/41/ ry Member State (in the United Kingdom as EU of the European Parliament and of the well), except Ireland and Denmark, which are Council (further mentioned as ‘Directive’) has not taking part in the transposition of the Diset up the new European judicial decision in- rective, and are thus not bound by it or subject strument, called the European Investigation to its application. Order (further known as ‘EIO’). An EIO aims This means that between the Member States to make the legal cooperation easier; it sets bound by the Directive, it takes precedence up a comprehensive system for obtaining evi- over any other agreement. The Directive re-
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INTERNATIONAL FOCUS places: the corresponding provisions of the European Convention on Mutual Assistance in Criminal Matters of the Council of Europe of April 20, 1959, as well as its two additional protocols and the bilateral agreement, concluded pursuant to Article 26 thereof; the Convention implementing the Schengen Agreement; the Convention on Mutual Assistance in Criminal Matters between Member States of the European Union and its protocol. However, Member States may conclude or continue to apply multilateral or bilateral agreements after May 22, 2017 only insofar as these make it possible to further strengthen the aim of the Directive. Member States were supposed to notify the Commission, by the same date, of which agreements they wish to continue to apply. For example, the Czech Republic notified that it would like to continue to apply agreements with Austria, Germany, and Slovakia.
• Investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time; • Covert investigations; • Interception of telecommunications with technical assistance of another Member State; • Provisional measures. Only above-mentioned investigative measures are regulated under an EIO. Other investigative measures are to be regulated and applied according to relevant agreements.
An issuing authority may only issue an EIO if it is necessary and proportionate for the purpose of the proceeding and if the investigative measure could have been ordered under the same conditions in a similar domestic case. The executing authority is entitled to opt for a less intrusive measure than the one indicated Concerning the investigative measures, an in an EIO if it is possible to achieve similar reEIO can be (according to art. 22 – 32 of Direc- sults (Article 6 of the Directive). tive) issued for: 3.1 Human rights and the EIO • Temporary transfer to the issuing State of The issuing authority should pay attention to persons held in custody for the purpose of ensuring full respect of the rights mentioned carrying out an investigative measure; in Article 48 of the Charter of Fundamental • Temporary transfer to the executing State Rights of the European Union, such as the of persons held in custody for the purpose presumption of innocence and the right of defence in criminal proceedings. Any limitation of carrying out an investigative measure; should conform to the requirements estab• Hearing by videoconference or other au- lished in Article 52 of the Charter (necessity dio-visual transmission; and proportionality). • Hearing by telephone conference;
However, if there are grounds for believing • Information on bank and other financial that the investigative measure would result in the breach of fundamental rights of the person accounts; concerned, the execution of an EIO should be • Information on banking and other finan- refused. The EIO should be also refused if the cial operations; execution in the Member State would involve a breach of immunity or privilege in a Mem-
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ber State. 3.2 A Form An EIO is always issued on a form, set out in Annex A of the Directive (Article 5 of the Directive). The form should contain the following information: • Data about the issuing authority and, where applicable, the validating authority; • The object of and reasons for the EIO;
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• The necessary information available on the person(s) concerned; • A description of the criminal act, which is the subject of the investigation or proceedings, and the applicable provisions of the criminal law of the issuing State; • A description of the investigative measures(s) requested and the evidence to be obtained. 3.3 Language Each Member State indicates the language(s) which, among the official language(s) may be used for completing the translation of an EIO (Article 5, paragraph 2 of the Directive). The Czech Republic accepts the EIO in Czech and Slovak languages. 3.4 Expenses Expenses in the territory of the executing Member State should be borne exclusively by it. However, if the cost is exceptionally high, the issue of the cost may be subject to consultations between the issuing Member State and the executing one (Article 21 of the Directive). 4. Non-execution of EIO There are three reasons why an EIO will not be executed: • Return of the EIO to the issuing state
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REFLECTIONS If an executing authority receives an EIO which was not issued by a specified authority (Article 2, letter (c) of the Directive), the executing authority shall return the EIO to the • issuing Member State. • Obstacle in the executing
though the conduct is not an offence in the executing Member State (Article 11, letter (e) of the Directive); The execution of the investigative measure would be incompatible with Article 6 of the Treaty of European Union and the Charter of Fundamental Rights of the European Union according to the executing Member State’s obligation (Article 11, letter (f) of the Directive);
The executing authority cannot make a decision on the recognition or execution of the EIO if the form provided form is incomplete or incorrect (Article 16, paragraph 2, letter (a) of the Directive). In this case, an issuing au- • The basic of the conduct on which the EIO thority should be notified to comply with the was issued does not constitute an offence rules, otherwise the EIO will not be executed. under the law of the executing Member State (Article 11, letter (g) of the Directive). Grounds for non-recognition or non-execution There is no decision of rejection needed, as a note in a file and information provided to the The recognition or execution of an EIO can be issuing Member State is sufficient. refused in the executing Member State if: 5. Conclusion • The executing Member State makes it impossible to execute the EIO under the im- The Directive can be considered as a useful munity or a privilege according to its law legal instrument of the EU. The cooperation (Article 11, letter (a) of the Directive); among Member States seems to be more effective and quicker, as opposed to other legal • The execution of the EIO would harm na- instruments based on multilateral or bilateral tional security interest (Article 11, letter agreements. However, it would be convenient (b) of the Directive); if the execution of every investigative measure • The EIO was issued although the investi- was covered by the Directive. Nowadays, the gative measure would not be authorised in Directive is used for the execution of one insimilar domestic case under the law of the vestigative measure, and for executing another executing Member State (Article 11, letter investigative measure (not included in the art. 22 – 32 of Directive) multilateral or bilateral (c) of the Directive); contracts have to be applied. • The execution of the EIO would be contrary to the principle of ne bis in idem (this means that no legal action can be instituted By Sarka Silhankova twice for the same cause) (Article 11, letter (d) of the Directive); Masaryk University, Czech Repyblic • The EIO was issued for criminal offence which was committed outside the territory of the issuing Member State but on the territory of the executing Member State al-
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PROFESSIONAL SPOTLIGHT Interview: Cătălin Rusu Associate Professor of European Law, Radboud University Nijmegen Cătălin S. Rusu is currently an Associate Professor of European Law at the Radboud University Nijmegen, where he lectures on EU (Economic) Law, EU Competition Law, and EU Internal Market Law, as well as a Visiting Professor of European Competition Law at ‘Babes-Bolyai’ University, Cluj-Napoca. Cătălin’s research focuses on the dynamic role that EU Competition Law and Policy play in the Internal Market project, the manner in which antitrust regulation adapts to the requirements of modern law-making, and the distinct approaches to Competition Law enforcement in different (European) jurisdictions. Cătălin has served as a Non-Governmental Advisor for the European Commission in the International Competition Network. He also regularly provides advice on matters of (EU) Competition Law as a court-appointed independent specialist.
of Bachelor's in Cluj-Napoca. I realised that European law is what I wanted to do, but I still had to go through three years of Romanian law and only then start specialising. The first step towards choosing this field was going abroad through an Erasmus scholarship in the Netherlands in my second year of studies. Then I came back to do a Master’s program in Utrecht and things started working out by themselves. Among all the branches of European law somehow the internal market law peaked my interest. There was a niche closely linked to internal market law, the competition law, which I found very intriguing. Then I had a very interesting course on corporate law taught by a professor who was the dean of the faculty at the time so I started thinking
“I realised that European law is what I wanted to do, but I still had to go through three years of RomaLawyr.it: First of all, we would like to nian law and only then start spethank you again for taking the time to cialising.” sit with us. Our first question relates to your field of work. What sparked your interest in economic law?
C.R.: Thank you for the invitation. Lovely initiative you have got here and I am happy to contribute. Regarding economic law, my interest began to grow while studying European law in my first year
about doing something connected to this field of law in the future. A PhD opportunity came up with the same professor, but I signalled my interest towards competition law and he was okay with that. He brought in an economist as a second
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PROFESSIONAL SPOTLIGHT supervisor of the PhD project. So, I was a competition law PhD candidate supervised by a corporate law professor and an economics professor. In the end, it was not necessarily a rational choice made in my second or my third year of studies, but rather something that was built in time. Lawyr.it: Given that you have graduated from Babes-Bolyai University in Romania, what were your reasons for choosing to work and live in the Netherlands? Is there something specific about this country and/or Radboud University? C.R.: First of all, I wanted to study abroad, at least for a short period of time, as I believe it is important to gather experiences from different places. Then I came here and I liked it, because things just work naturally somehow. There is predictability and certainty, not only as far as academic work is concerned, but also as far as life in general is concerned. You have
“There is predictability and certainty, not only as far as academic work is concerned, but also as far as life in general is concerned. You have some sort of certitude that things will go in a direction and will not immediately change in a different one.”
was an important factor as well, because this is a country where everybody speaks English, and I think it has to do with the fact that Dutch people realise how difficult their language is and they very freely and happily speak English to everybody. Therefore, the adjustment period was very short and I did not experience any problems communicating with people. After the PhD, came the job opportunity here, at Radboud University, and eventually, years after, I realised I was settled in a place which I liked and there was no reason to change anything about that. Regarding Radboud University, while I did my Master’s and PhD in Utrecht, I can say that there are no fundamental differences between these universities as far as academic standards are concerned. Whether you’re in Utrecht, or Nijmegen, or Amsterdam, etc. you will get a good education no matter what, and that is a very important aspect about the Netherlands. Lawyr.it: Based on your experience in two different systems, would you say that there is a divide between the Eastern and Western approaches when it comes to higher education and if so, what would be the most important differences?
C.R.: I would not put it between the east and the west, because I have experienced only Romania, the Netherlands, and France, as far as education is concerned. I will stick to the first two countries, which are better known to me. From the stusome sort of certitude that things will go dents' perspective, I think here, they genin a direction and will not immediately erally start studying earlier in the semeschange in a different one. The language ter. Given the nature of the tutorials, they
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PROFESSIONAL SPOTLIGHT have to prepare well for them throughout the semester, they acquire and shape their knowledge earlier, before they get to the exam period and that is why it is not uncommon for Dutch students to have an exam today and another exam tomorrow; there is the assumption that they are prepared already. Whereas it is not generally the case in Romania, as far as I can tell from my past experience as a student there. Regarding the quality of discussions in class, I can compare what I teach at Master's level here and what I teach at Master’s level in Romania. And I have to say that the quality of the discussions does not differ. Interested and driven students are present in both systems, so I see no problem in terms of factors which de-
“(...)the quality of the discussions does not differ. Interested and driven students are present in both systems, so I see no problem in terms of factors which determine the students’ motivation.” termine the students’ motivation. I also do not teach differently in Romania. I apply the same techniques. I have the same approach. I try to encourage people to talk as much as possible and not be afraid of putting their ideas out there, whatever the idea is. I like an open classroom and free discussions. It is always nice to shut down the powerpoint slides every now and then because the discussion is going in a direction which is interesting and people may learn something. My take is that the only thing you can do is to give
“My take is that the only thing you can do is to give the students a sketch, a skeleton, and then they have to put the pieces together.” the students a sketch, a skeleton, and then they have to put the pieces together. There is more encouragement on behalf of the lecturers here for the students to speak up, even if the classroom is large and this is something that I did not experience as a student back in Romania. This came as a bit of a shock at the beginning, when I moved to the Netherlands. But again, there are different methods of teaching, different flavours if you will. So, I'm not saying this as criticism, I'm just observing it. Lawyr.it: How does academia look like in the Netherlands? C.R.: First of all, I think this is one of the best countries in Europe to do a PhD because, while there are different categories of PhD positions, the large majority of candidates are not labelled as students, they are part of staff, they are hired by the university with a salary and everything else the employee status entails, such as health insurance, social contributions, taxation; whereas in a significant part of other countries they are still treated as students. Another point would be if you do a PhD here, the large majority of the programmes put an emphasis on research and the PhD candidates have limited teaching obligations. I encourage my PhD colleagues not to run away
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PROFESSIONAL SPOTLIGHT from teaching duties, because that's an important part of an academic career; but they do a limited amount of teaching over here, whereas in other countries, in order to support yourself, you have to teach many hours in order to improve your income. And when you invest a lot of time in teaching, it is the research time
competitive the field is. Also, judging by the applications and CVs we receive, more often than not, the candidates are very qualified people who are fighting for entry level positions. Lawyr.it: The Netherlands has a very high intake of international students. Aside from the fact that it is largely an English-speaking country, what does it provide for them in terms of opportunities and how do these students help shape the Dutch system?
“Academia is a sector that is respected and treated accordingly. You don't need to also be a prosecutor, a lawyer, or a judge to make C.R.: It’s good that you already menends meet. Because of this, I would tioned the language point because that is say it is very competitive.” a given. Everybody speaks English. Eveyou cut away from. So, then you either do not finish your PhD on time or there is the risk of the PhD not coming out as it is supposed to be and that is an issue. Research time is taken very seriously. In Dutch universities there is a clear division between the amount of time a candidate has to spend on research, teaching, and administrative tasks, which is clearly stated in the employment contract, and to a large extent that division is enforced. Academia is a sector that is respected and treated accordingly. You don't need to also be a prosecutor, a lawyer, or a judge to make ends meet. Because of this, I would say it is very competitive. My own experience also supports this statement as I remember how fierce the competition was when I applied for my job or judging from the position of a staff member, seeing now how many applications we have for potential jobs; it only underlines how
rybody teaches in English as well. Right now, our programs in European law are very attractive for Brazilians and Norwegians, for example. We have people from Asia as well, from all corners of the world. One of the most rewarding things is to teach a class where you have somebody from New Zealand, somebody from the States, Russia, Brazil, and all the Eu-
“Universities should indeed teach students how to write academic pieces or legal briefs. I feel that there are certain systems which lack this approach and I can tell that from my interactions with students from other countries and academic circles. It is clear that they are struggling with writing and the language is not necessarily the problem.”
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PROFESSIONAL SPOTLIGHT ropean countries, everybody in the same room. You hear ideas and interpretations of certain legal concepts coming from other cultures and other jurisdictions. And I learn from it as well, every day while I’m in class, due to being exposed to so many cultures. From the perspective of an international student here, in the Netherlands, I can tell you that there is a social element to it as well. That is why I encourage people to come to class and to spend time at university. I have formed friendships that I am sure will last a lifetime because I was exposed to an international crowd, and now I can say that I have friends all over the world. You learn a lot from diversity, even if not necessarily for your degree, but socially you grow by being exposed to different ways of thinking. I think that is very important and international students provide that learning environment. As far as job opportunities, Dutch law faculties have a good reputation with employers even outside of the Netherlands. So, if you go to a job interview at a law firm in Brussels, they will know about Dutch law schools. It is hard to think about opportunities immediately after university because the labour market doesn't look as it looked back in the day. So right now, I think a Master’s program is a must, an internship is a must, and then you can start thinking of jobs. Some people do internships during their studies as well. An important skill that you would get from a Dutch law faculty is very good structure, knowing how to formulate an argument, from beginning to end. Proper writing is again something important, which is
why Dutch universities emphasise on it. Universities should indeed teach students how to write academic pieces or legal briefs. I feel that there are certain systems which lack this approach and I can tell that from my interactions with students from other countries and academic circles. It is clear that they are struggling with writing and the language is not necessarily the problem. This, I mean proper writing and a structured approach, is clearly something beneficial that the
“If you want to be in academia for the long run you necessarily need good research skills. So, a lot of investment has to be done from the beginning in order to learn how to research correctly: how to gather data, how to categorise it, how to code it etc.”
Netherlands has to offer. Lawir.it: What would be the skills students should develop if they want a satisfactory career in academia and how soon should they start focusing on those skills? C.R.: The first thing I would say overlaps with my previous answer: students need to know how to properly write an academic piece. If you want to be in academia for the long run you necessarily need good research skills. So, a lot of investment has to be done from the beginning in order to learn how to research correctly: how to gather data, how to categorise it, how
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PROFESSIONAL SPOTLIGHT to code it etc. And everything needs to be done without cutting corners, as it is a very time-consuming process. When it comes to research, results are visible in time, so you have to be patient and persistent, continuously work on your skills and accept that, more often than not, things will not work out. Accept failure to some extent. That article you wrote, as amazing as you think it is, may not get published and you need to go back and work on it some more or sometimes even
â€œThat article you wrote, as amazing as you think it is, may not get published and you need to go back and work on it some more or sometimes even set it aside and focus on something else. This is what I mean by accepting failure.â€? set it aside and focus on something else. This is what I mean by accepting failure.
volved, non-partisan advisor. Essentially, I attended phone conferences with them in which we discussed certain submissions that they were preparing for the International Competition Network. I was given their briefs to read, weigh in, and provide my opinion on the direction that they were going for. They are very friendly people, very forthcoming, and willing to listen. However, it was not spectacular, and I am not saying this in a bad way. It was as it is supposed to be, very straightforward, clear, nothing unexpected. But the topics discussed were interesting for me because they were very forward-looking. So that's one of the many things that I appreciate about the Directorate-General for Competition and the way they view competition developing in a broader context. The Commission is party of the International Competition Network and I think it has a very forward-looking approach as to how competition law should develop. And again, not spectacular because for me, things don't have to be spectacular. They have to be practical, certain, and effective. And that is exactly how they were.
Lawyr.it: You have worked as a nongovernmental advisor for the European Commission. Could you describe your experience working for such an impor- Lawyr.it: What is your advice to stutant institution? dents who want to work with European institutions? C.R.: The work with the Commission was interesting and at the same time chal- C.R.: Firstly, don't be a eurosceptic. You lenging to a certain extent, because it is need to truly believe in the European an immense institution in itself, although project and to be aware of the values it may feel that for competition, for ex- that the European Union stands for, the ample, it is only a handful of people that shortcomings, just as much as the pluses lead this particular discussion. The posi- and opportunities it offers. If you are a tion was exactly like the title says, I was law student and you want to work for any a non-governmental, non-politically in- of the European institutions, you need
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PROFESSIONAL SPOTLIGHT to take into account a bigger discussion which does not only apply to the EU institutions, but to finding a good job in general. Having a Bachelor’s and a Master’s degree just doesn't cut it anymore. Think about it. How many students graduate every year? How many can the labour market absorb? While there is some filtering going on because some of the top students will get the better jobs and so on, there is still an excess of graduates on the market. So, as soon as possible, you have to do something extra, you need to
“How many students graduate every year? How many can the labour market absorb? While there is some filtering going on because some of the top students will get the better jobs and so on, there is still an excess of graduates on the market. So, as soon as possible, you have to do something extra, you need to engage in extracurricular activities, and identify early on which field you want to work in.” engage in extracurricular activities, and identify early on which field you want to work in. If you want to work with European law, start looking into a European law moot court competition. Look for internships, for law firms which work with some sort of a European law dimension. You have all these students’ associations; get involved and do something extra
which is meaningful and tells a nice story, so when you graduate and you want to get a job, your CV should tell a good story about you. Your profile should not be all over the place, it needs to show your specialisation. It is a cruel reality that you cannot do it all and if working for the EU institutions is your goal, which is a broad one by itself, start narrowing down your field, the Directorate-General which covers it for example, if it is the Commission you are going after, and coordinate all your efforts and your searches towards that direction. Lawyr.it: Given that your previous answers covered a lot of professional advice, and our signature question at the end of each interview involves advice for law students in general, we would like to nuance the question. If you could give one personal advice to law students, what would it be? C.R.: The more I engage with law, the more I think that proportionality and balance are key aspects. So, be balanced in everything that you do as a student. Study a couple of hours every day, early on, take it seriously, build you profile and your career. But don’t skip the parties, or that basketball match with friends, have those beers, while keeping in mind that balance is everything. But also, be aware that your twenties go really, really fast, so enjoy them, and everything else this world has to offer. I know I did. No, scratch that. I still do! By Patricia Cîmpian
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PROFESSIONAL SPOTLIGHT Interview: George Zlati Associate Lawyer at Sergiu Bogdan & Associates, Adjunct Assistant Professor on Criminal Law at Babes-Bolyai University George Zlati is an Associate Lawyer at Sergiu Bogdan & Associates, an Adjunct Assistant Professor on Criminal Law at Babeș-Bolyai University`s Faculty of Law and the Chief Editor for Penalmente Relevant Journal. His education includes an LL.B. in law and an LL.M. in Criminal Science and Forensics from the Babeș-Bolyai University (BBU); currently, he is working on his PhD in cybercrime at BBU. Apart from his great experience in the criminal law field, he has also published many articles and contributed to many books on this topic, and he is particularly interested in cybercrime and digital forensics.
Lawyr.it: Some students have great difficulties in choosing a field of law to specialise in, while others know the answer from the very beginning. When did you realise that criminal law was your call and why criminal law of them all? G.Z.: I do not think that criminal law is ‘my call’. This is what I do at the moment. I shall see what the future holds for me. You cannot know from the very beginning what you want or what you need. What is ‘the very beginning’ anyway? This is a very naive way of thinking. If you do not taste it, you cannot know for sure if you like it. And if you do not
taste it long enough, you cannot know if the chemistry is good or you are allergic. I think I could have been a great lawyer no matter the field of law. For me it was about freedom. Some say that doctors do not save lives. They only prolong it. But a lawyer can have a direct input in regard to the freedom of an individual. Yes. It is true. In a perfect world you would not need lawyers. A judge would suffice. But we do not live in such a world, do we? Lawyr.it: Do you think that one needs some specific qualities to be a lawyer who practices criminal law, and what are those qualities? G.Z.: This is a tough question taking into consideration that I do not practice at all in other fields of law. I think that the core qualities of a lawyer must be the same, no matter the field of law in question. I would say that criminal law has the potential to wake you up in the middle of the night for an extraordinary criminal procedure so it is important to be able to handle such an event in a professional way. But I also believe that such extraordinary situations could also arise in a non-criminal case. One of my colleagues is always saying that criminal law is 80% psychology and 20% law. You need to understand that judges and prosecutors are also human beings just like you.
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PROFESSIONAL SPOTLIGHT They also have ‘bad days at the office’. You must understand this and act properly. There is also the big part of handling your client. Even if you do not think it is necessary, you need to earn the trust of your client. In the context of a criminal trial the psychological pressure placed on your client is not at all negligible, and it
“Even if you do not think it is necessary, you need to earn the trust of your client. In the context of a criminal trial the psychological pressure placed on your client is not at all negligible, and it is your role to counterbalance with patience, understanding and positivity.” is your role to counterbalance with patience, understanding and positivity. But there is a dangerous line between positivity and naivety. I think that you must show signs of positivity, yet still keep a reasonable reserved attitude towards the possible outcome of the trial. If you do not find the right balance, at some point you could lose the trust of your client or even worse. And this part of the equation is not learned in law school.
inside joke for lawyers. I think that if you are a lawyer, a judge or a prosecutor, you gain some knowledge about different aspects regarding our judicial system that is not part of the public domain. In this context I do believe that a criminal lawyer, a prosecutor or a criminal judge has a more in-depth knowledge regarding such issues. Maybe the analogy with the dark or deep web works in this context. But if you want me to point out three things that I have learned as a lawyer in the past few years I could emphasize the following: ONE. The real name of the in dubio pro reo principle is more likely ‘in dubio pro prosecution’. And I think this is the sad truth not only in regard to our national legal system. There is a saying that ‘the bigger the crime, the smaller the chance of a fair trial’. Is that a fair assessment? No. It is not. But I think it is true. TWO. There is no private life in the open sea of metadata and mass surveillance. I heard a lot in these couple of years that ‘metadata is not content… it is
“I think that you must show signs of positivity, yet still keep a reasonable reserved attitude towards the possible outcome of the trial. If you do not find the right balance, at some point you could lose the Lawyr.it: Could you tell us the three most trust of your client or even worse. important things that you learned from And this part of the equation is not working as a lawyer so far? learned in law school.” G.Z.: Using pigeons to send messages instead of ‘traditional’ channels of com- just metadata’ from people who do not munication. And yes, that was a joke. An know how you can use metadata in such
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PROFESSIONAL SPOTLIGHT a way that you do not longer need content. And I heard a lot that ‘if you do not have anything to hide, you do not need to be afraid’ in order to justify some controversial pieces of legislation in a world in which we do not like our neighbour because of his sexual orientation, religion, beliefs, or even the way he walks or talks. So yes. Maybe you do not need to be afraid of anything. If you live in a cave on a deserted island. THREE. Judges, prosecutors and lawyers are all human beings and because of that they all have preconceptions and are randomly biased. I think that it is important to realise that most of the time we are wrong about people. And I am talking here about the everyday life. You think that you are in an honest relationship with your life partner, but he has seven other wives in three different countries. You think you know what the other desires, but you always buy the most horrendous gifts for Christmas. You think that someone is less intelligent just because the way he talks or dresses. And if you are a man, there is a certain possibility that you are full of misogyny even if you always say that you love your (emphasise here) women – which almost proves the point. I think the same applies in a criminal case. If the accused one does not make a statement, he is hiding something even if you do not know the fact that maybe it is not his option but instead the strategy of his lawyer. If the accused one is a politician, he has a bonus of 60% guiltiness no matter what. Because almost all politicians are bad. Just like humans in general, but you do not
like it when you in particular are being placed in the same basket. Because it is wrong to generalise, right? Lawyr.it: What raised your interest in cybercrime? G.Z.: Simply put, the fact that Romania is 20 years behind in this field, so I thought that I could make an impact. Therefore, I found a niche and I started to invest time, money and energy in order to expand my knowledge. But I am not only
“Judges, prosecutors and lawyers are all human beings and because of that they all have preconceptions and are randomly biased. I think that it is important to realise that most of the time we are wrong about people.” interested in cybercrime. For the past few years I have invested a lot of time in digital forensics, another niche that can have a connection or none at all with cybercrime. However, there is a preconception about cybercrime in Romania. As I said. We are 20 years behind. Besides that, I think it is an extremely interesting topic from a research point of view. You cannot get bored studying cybercrime. It is a vast and complex domain that is in a perpetual change. I think that learning new aspects in a domain in which you feel extremely confident is extremely fulfilling. Lawyr.it: We know that you teach criminal law seminars at Babeș-Bolyai
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PROFESSIONAL SPOTLIGHT University`s Faculty of Law and that you many things their teachers do. So, how are one of our favourite teachers. What`s do you manage to do everything? the best part of teaching and how did it G.Z.: Like clubbing, binging on Netflix, influence your life? going to places in order to take selfies G.Z.: It did not influence my life and I and put them on social media does not do not think that I made a real impact on affect a student`s ‘free’ time. I think that the life of any student in general. It made you make your time the same way you make your bed. Every day of the week. “I think that you make your time If you read 15 pages every day, in almost the same way you make your bed. three months you will basically read 1500 pages. I think that I waste a lot of time. Every day of the week. If you read I sleep more than I should. And maybe 15 pages every day, in almost three I watch more movies than my doctor months you will basically read would prescribe. But I still manage to 1500 pages.” get a lot of things done. Mostly because I only do things that I enjoy doing. You should try this recipe. It works. me a little bit more tired because I try Lawyr.it: The general outside image of a to take it seriously and that affects your lawyer is that of a cold-blooded shark, stamina without doubt. But I think that dressed in a custom-made suit, who you get some and you lose some, right? I charges his/her batteries using the clialways say that I take part in the academents` bank accounts. But we know better, ic process in order to keep my foot on the so tell us how a lawyer really is in his/ gas in regard to a part of the criminal law her daily life, what your hobbies are and which is absent from my professional life how you overcome that general image. at the moment. Until now I had only one homicide case. I actually think it was one G.Z.: Lawyers are human beings and huof my first cases as a defence lawyer. But man beings are not a work of art in genit is an interesting subject and I feel the eral. Some are hypocrites, some are just need to keep up with the constant devel- an empty shell, a suit without substance, opments in the field. From this point of and some are snakes. In a biblical sense. view, teaching helps me maintain a good But in spite of all these things, you can level of knowledge. And honestly, it is still find good and interesting people interesting to interact with new students who call themselves lawyers. Returning every year. It is definitely a treat. to your challenge, if we know a particular individual and analyse his Instagram Lawyr.it: You have a very full schedule: account, we can conclude that perception being a lawyer, a teacher, and a chief edis not reality. Same applies to lawyers, itor. Students are always stunned by how prosecutors, judges or law practitioners
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PROFESSIONAL SPOTLIGHT in general. Most of us play a role and at the end of the day we become mortals again. And yes. You can read between the lines. But what I cannot do is explain
I also enjoy books and comic books. Even if practicing law drastically affects your pleasure of reading. As a lawyer you read all day long. Case files, jurisprudence and legal literature. And even if some “Most of us play a role and at the would say that part of it is even more ficend of the day we become mortals tional than Orwell’s ‘1984’, at the end of again. And yes. You can read be- the day when you go home and see letters tween the lines. But what I cannot in front of your eyes, your first instinct is to turn your brain offline. I also enjoy do is explain how the life of a law- doing Room Escapes. I started doing at yer is in general. I do not know. least one Room Escape in each country/ I think it’s mostly boring, like life city I visit and I shall continue to do so I die in one of them. I could say that usually is. And repetitive. As in the until I also enjoy to travel but I do not think Matrix script kind of way.” that people should include such an activity in the hobbies category. You need to how the life of a lawyer is in general. I do travel in order to experience new things not know. I think it’s mostly boring, like in different places and realise that peolife usually is. And repetitive. As in the ple are stupid no matter the geographical Matrix script kind of way. “Lawyers are human beings and What I can say is that I do not like to wear suits. So maybe I am a deviant lawyer from the start. Sometimes I practice law even during the night or in the weekends. But when I am not a lawyer, I do not think that I am a different person. I like to think that I brought myself into the law office or the courtroom and not the lawyer into my private life. This is why I do not wear suits. I do not need one to be myself. And because I answered your challenge by not answering your challenge, just as a lawyer would do, I will say that I enjoy movies and everything related to them. As many as possible. I think my personal record is 35 movies in six days at Transylvania International Film Festival (TIFF).
human beings are not a work of art in general. Some are hypocrites, some are just an empty shell, a suit without substance, and some are snakes. In a biblical sense. But in spite of all these things, you can still find good and interesting people who call themselves lawyers.”
coordinates. As a hobby I would also say boardgames. I am not yet at Dungeons and Dragons level but I have played a lot of boardgames and I think I will grow old playing them.
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PROFESSIONAL SPOTLIGHT Lawyr.it: Why did you decide to study G.Z.: Would I stay or would I go? This comparative law in Strasbourg and what is not a law related question. And the did you learn from that experience? answer is the same. There is no heaven, there is no hell. I enjoy foreign countries G.Z.: It was just an opportunity I had at as much as foreigners enjoy our ‘sarmale’ some point in my life. And if there is an when they visit our country for a short opportunity, I cannot say no. It is not in time. It is easy to fantasise about your fumy character. I think that it is very imture self in a different country, but from a law perspective I am not naive. I have “I think that it is very important to always had a weakness for common law, read a lot of foreign legal literature yet I know part of the chaos from the UK and experience as much as possi- or USA criminal legal system and I do think I would prefer to give cancer ble different legal cultures. This is not for another terminal disease. So, the anthe only way to truly evolve.” swer is no, thanks. I would prefer a legal system where you can actually have great debates on controversial, still important portant to read a lot of foreign legal litissues. As a lawyer I think this is your ulerature and experience as much as postimate desire, to be part in such debates sible different legal cultures. This is the and be successful. But I do not think that only way to truly evolve. It was not the Romania is lacking in these perspectives. most intensive program you can enrol in. Not even close. But I learned some new “There is not such a big difference things, I met some new people interested between us and the rest of the Euin law and saw the way they think. And rope. We just feel inferior because if you go through such an experience one most of us do not leave our cave. or more than once, you realise that you are not little just because you are from We prefer to stay in the dark.” Romania or Eastern Europe. There is not such a big difference between us and the Currently, we have no real legal debates. rest of the Europe. We just feel inferior And this is unfortunate. But our legal because most of us do not leave our cave. system is full of controversies, so all we We prefer to stay in the dark. And this is need is a bunch of crazy people eager to not a reference to Star Wars by the way. engage in a real legal debate and some open-minded judges willing to decide in one way or the other. Lawyr.it: If you had the chance to practice law in another country, would you Lawyr.it: Do you believe that it is enough for lawyers to have very good knowledge take it or would you stay in Romania? of their field only or should they also be
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PROFESSIONAL SPOTLIGHT good in as many fields as possible? In al criminal law legislation. In civil cases short, would you rather be a Jack of all there is no such problem. Not at this level trades or a master of one? anyway. And the main factor is that civil judges are more accustomed with such a So, the answer is no. Definite“I thought at some point that if procedure. ly. You need to find a balance and evolve you find a niche you can master it, constantly. You cannot know everything. be successful and forget that there This is why teamwork is very important is anything else beside it. I was in a law firm. But you cannot limit your knowledge to a particular niche, offence wrong. You cannot be a master of or field of law. Instead of being master of one in a world in which everything one you will become a master of none.
is interconnected.” Lawyr.it: Do you think that criminal-
G.Z.: I thought at some point that if you find a niche you can master it, be successful and forget that there is anything else beside it. I was wrong. You cannot be a master of one in a world in which everything is interconnected. You could say that you are a criminal lawyer and you are not interested in tax law, insolvency law, civil law, administrative law, European law or whatever else. Tax evasion as a criminal offence without tax law is the premise for a disaster. And this example is not an exception. European law is extremely important in the context of criminal law but the majority of lawyers are neglecting this. There is a lot of jurisprudence from the European Court of Justice regarding ne bis in idem, data retention, individual rights and freedoms with a direct impact on criminal law. But still, there is a lack of understanding. Criminal judges are mostly discouraged to ask the European Court of Justice for a preliminary ruling on sensitive issues that could have an impact on the nation-
ity will change in the future? Will that change lawyers as well? Do you believe that lawyers will actually be replaced by AI as many predict or do you think that the human lawyer still stands a chance? G.Z.: I do not think lawyers will disappear. Not in every field of law anyway. You will still pay a lawyer even if the lawyer uses AI to practice law. It will take generations to even accept the possibility
“You need to find a balance and evolve constantly. You cannot know everything. This is why teamwork is very important in a law firm. But you cannot limit your knowledge to a particular niche, offence or field of law. Instead of being master of one you will become a master of none.” that a machine can understand your feelings and desires in a legal custody battle
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PROFESSIONAL SPOTLIGHT or a criminal case. But AI will be part of our life. That is for sure. And the judicial system will also be changed in time by AI. I do not agree that a machine should decide the amount of the penalty you will receive if you are convicted of a crime. But it appears that this is the way forward in some jurisdictions. Yet the reality is that the world is changing and we must accept that. Accepting the reality does not equal surrender. There will be legal debates regarding such issues. We shall see how the future will unfold. But lawyers will never disappear. From this point of view, we are not sharks.
“I do not agree that a machine should decide the amount of the penalty you will receive if you are convicted of a crime. But it appears that this is the way forward in some jurisdictions. Yet the reality is that the world is changing and we must accept that. Accepting the reality does not equal surrender. There will be legal debates regarding such issues. We shall see how the future will unfold. But lawyers will never disappear. From this point of view, we are not sharks.” Lawyr.it: If you were to be a lawyer in another time, what period would you pick and do you think you would manage without the technologies that we de-
pend on so much nowadays? G.Z.: Firstly, of course I could manage without technologies. There are a lot of situations in which I use only a pen and paper. I hate it, but I can manage it. Technology is part of our daily life. It is just like at a wedding – technology promises to be true to you in good times and in bad, in sickness and in health. And most of the time it is a lie. But you enjoy the lie because at least you do not feel alone or there are some situations when you see some benefits. You just need to get the best from everything. Technology included. I would like to be part of the defence in the O.J. trial. I think it is the best example which shows that there are flaws in every legal system. Some of them benefits the accused one and some of them take your in dubio pro reo and gives it away to the prosecution. Lawyr.it: And the last question is a tradition of Lawyr.it. What is your advice for law students? G.Z.: Be a bartender. Be something else. Law is interesting on paper. So, if you think you are in love with the law, it is better to read a book or see the movie. Or else you will be disappointed at least five days a week. Joking aside, do whatever you think is best for you. Take advice only from your lawyer or your doctor. No pun intended. By Oana Băhnean
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PROFESSIONAL SPOTLIGHT Interview: Dr. Tamás Sulyok President of the Hungarian Constitutional Court
Dr. Tamás Sulyok is the current President of the Hungarian Constitutional Court. In an interview which is certainly the highlight of this issue, he was kind enough to answer Lawyr.it’s questions about his career path, his role as President of the Court, the cases the Court is called to adjudicate upon today, as well as its relationship with other European Courts, the future of the Constitutional Court’s jurisdiction, and much more. In the next pages, you will have the opportunity to read a detailed presentation of the Constitutional Court’s working processes from the perspective of a prominent Judge and insider.
Lawyr.it: How would you describe your career that led you to the Constitutional Court? What are the major differences compared to your former professional practice and what are the experiences that you could use as a Judge and as President of the Court? T.S.: My curriculum vitae spannes different periods of Hungarian history. I was born in 1956 and grew up under a communist dictatorship. I witnessed the political changes of 1989-1990 which was a euphoric period for the Hungarian intellectuals. After these times I also experienced the world of the free-market capitalism that opened the gates for a
completely new, exciting world. My interest in civil and public law was significantly shaped by my influential professors at the university, e.g. Elemér Pólay, István Kovács and Béla Kemenes, who were able to capture the attention of the students with their charismatic personality and incredible professional knowledge. At this time, my devotion to public law primarily manifested in analysing philosophical – legal – questions. That is to say, I was a member of the Students’ Association of Philosophy and I even managed to prepare a prize-winning essay for the National Conference of Students’ Associations. Due to the fact that I graduated from the university with the grade of summa cum laude, I found myself in a favourable situation, since I was the only candidate who managed to qualify for the position as a law clerk at the Csongrád County Court. It did not take long to me though to realise that I would never be much interested in criminal law. Thus, my orientation towards civil law continued. After passing the bar exams I had to face a dilemma since there was an opportunity to get appointed Judge in the Criminal Division only if I had joined the Communist party. However, I made it clear that I did not want to be a Judge. Thus, I was the first law clerk to leave the court after 1945 and at the same time I also left Csongrád County as the
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PROFESSIONAL SPOTLIGHT President of the court strongly “suggested” to do so. I became a legal counsel at a farming company which was the scene of flourishing economy and modern technology at that time and I had the chance to gain a wide range of knowledge from agricultural issues to matters of tourism. After it became possible for legal coun-
a little bit that this position is considered to be incompatible with my duties as member of the Constitutional Court. Naturally, I also had to give up my legal practice when I was elected. For a practising lawyer clients always come first, and I had been representing many of them for decades. Usually, when I agreed on being the lawyer of a client, my legal “Usually, when I agreed on be- work included handling all of his or her ing the lawyer of a client, my legal legal problems from marriage through corporate issues to inheritance. It is fair work included handling all of his to say that in some sense, a lawyer shall or her legal problems from mar- represent “the whole person”. In the first riage through corporate issues to few months after I had started working at the Constitutional Court, I often woke inheritance. It is fair to say that in up in the middle of the night feeling worsome sense, a lawyer shall repre- ried that my clients would not be callsent “the whole person”.” ing me, and I would probably starve to death. Naturally, I instantly calmed down sels to establish law firms, which made it when I realised that this was not the case possible to deal with legal issues of eco- at all, but still, I should like to admit nomic nature, two of my colleagues and I were among the first to set up such an “I should like to admit that someassociation. After the political changes, times I miss the personal conI started practising as a lawyer in 1990, nection with my clients. In other and I mostly dealt with business and corporate matters, and besides, with certain words, being a lawyer was not only areas of administrative law. In 2000, I was a challenging profession, but it asked to teach constitutional law at the also meant gaining valuable perUniversity of Szeged, which I happily acsonal relationships.” cepted, but I also went on with my legal practice. At the same time, I happened to get elected as an honorary consul for that sometimes I miss the personal conAustria and I remained in this position nection with my clients. In other words, until my election as Judge to the Consti- being a lawyer was not only a challengtutional Court in 2014. It was a varied and ing profession, but it also meant gaining interesting responsibility to represent a valuable personal relationships. I had State concerning cultural and economic to hand over my former clients to my issues and I have to admit that I am sad other colleagues, which was certainly a
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PROFESSIONAL SPOTLIGHT loss from an individual aspect. Working more by seeking compromises, as well as as a constitutional Judge is different by by preparing reasonable, well-established the nature of the position. Unlike being proposals based on a balanced representation of mutual interests. This is an im“In other words, the competences portant guideline for me at the Constiof constitutional complaints of the tutional Court where decision-making Court are for helping the individu- requires the support of the majority of the members. A single constitutional judge is als to solve their problems when not entitled to decide on the merits on they are facing the labyrinth of his own, a decision requires at least eight bureaucracy and legal procedures, votes in favour out of fifteen Judges.
especially when their fundamental  Constitutional complaints may be subrights have been violated.” mitted at the Constitutional Court mainly
a lawyer, it is not about providing direct help to “everyday people”. Nonetheless, such a task is the very essence and one of the key functions of the constitutional complaints.  In other words, the competences of constitutional complaints of the Court are for helping the individuals to solve their problems when they are facing the labyrinth of bureaucracy and legal procedures, especially when their fundamental rights have been violated. The recent jurisdiction of the Court aims at bringing back what has been lost with the ever-increasing number and complexity of legal norms. So to say, that is the reason why the law actually exists: to protect the people from the arbitrariness and autocracy of the authorities. In this field I could make use of several elements of my former professional activities. As a practising lawyer you shall understand that besides professional knowledge, a learning-process plays an immensely important role in the legal work. You may also realise that you could often achieve
when a fundamental right of the petitioner, guaranteed by the Fundamental Law, had been violated by a judicial decision. Exceptionally, a constitutional complaint procedure may also be initiated when the application of a legal provision is contrary to the Fundamental Law, or when such a legal provision becomes effective without a judicial decision and as a result, the petitioner’s fundamental rights are violated directly. The constitutional complaint therefore is not a claim for classical judicial review, and the Constitutional Court is not a forum for legal remedy for the concrete case. Another important rule is that the Constitutional Court only finds the complaint admissible if the conflict with the Fundamental Law significantly affects the judicial decision, or the case raises constitutional law issues of fundamental importance. (Source: https://hunconcourt. hu/competences/) Lawyr.it: What are your views on the presidency, what kind of role does the President have in the formation of the decisions? 69
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PROFESSIONAL SPOTLIGHT T.S.: The President represents the Court, he exercises the employer’s rights over the personnel of the Court - except for the Judges. In short, he has a wide range of duties regarding the administration of the Court as well, which implies that he has to work somewhat more. With regards to the functioning of the Court, he
“ In my view, the responsibility of the President is to support and strengthen the quality of the decisions of the majority.”
since I believe that the role of the President is to contribute to the formation of the majority decision. This is what I am basically striving for. Lawyr.it: It is a re-occurring matter of debate to what extent the considerations and arguments of strictly constitutional legal nature shall be attributed significance, and what role the specific branches of law should play in the decision-making of the Court. What is your opinion in this regard; could you illustrate it with an example? T.S.: When I describe the role and function of constitutional law to my students at the university, I usually state that it is similar to the “cuckoo nestling”: the egg of constitutional law is dropped into the nest of specific legal branch(es) and when the squealer hatches, it taps the other
is primus inter pares (first among equals) among the fifteen Judges, with the same rights and options. Similar to my colleagues, I shall be a reporter Judge of given cases and in general my vote has the same weight as of the other members. However, there is an exception from this “When I describe the role and rule when there is a tie, which only ocfunction of constitutional law to curs when one of the Judges is not present my students at the university, I on the voting. It is interesting, however, that the President of the Austrian Conusually state that it is similar to stitutional Court does not possess a right the “cuckoo nestling”: the egg of to vote generally, only on those occasions constitutional law is dropped into when the votes are evenly divided. In my view, the responsibility of the President the nest of specific legal branch(es) is to support and strengthen the quality and when the squealer hatches, it of the decisions of the majority. In order taps the other birds’ heads, trying to achieve this objective, it may also hapto get its own will, logic and syspen that I alter / shape my conception in a way that it could still fit into the matem through.” jority’s opinion. It is also possible that I make an attempt to influence the majority in a certain direction. As a last resort, I birds’ heads, trying to get its own will, am entitled to write a dissenting opinion, logic and system through. The objective
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PROFESSIONAL SPOTLIGHT of the so-called “genuine constitutional complaint” (which was first introduced by the German Grundgesetz) is exactly to examine the judicial decisions from the aspect of the violation of fundamental individual rights. Gaining information from the sphere of specific legal fields is therefore a starting point. The consideration of these findings enables us to gain deeper insight into the background of the case. The situation is somewhat easier though when it comes to the ex post review of conformity with the Fundamental Law, i.e. posterior norm control. Under this competence we have to evaluate an abstract constitutional matter . Still, it happens regularly that constitutional legal messages from decade-old files need to be discovered and interpreted, which makes our job a bit similar to the one of the gold garbler, who stands by the river, shakes the sieve and waits for the nugget (the constitutional issue and message in this case) to be found. Although there is an undeniable intersection of the specific legal branches and the constitutional legal sphere, we strive to avoid the modification of the judicial decision in terms of specific legal questions. This happens on those occasions only when an actual problem, relevant from the perspective of constitutional law is raised. It is an interesting issue how this can be carried out in practice, e.g. when a civil court decides on the rights relating to the personality or a criminal court delivers a judgment in a case of defamation or slender. It is probable that one or two from about a thousand judicial decisions become relevant,
based on the respect for fundamental individual rights, like the right to the freedom of expression in a procedure about the rights relating to the personality. This may occur in less evident situations as well, for instance, when a fine is imposed on a news portal within the framework of monetary supervision, because its report led to the discontinuation of trading with certain shares and resulted in an anomaly
“Although there is an undeniable intersection of the specific legal branches and the constitutional legal sphere, we strive to avoid the modification of the judicial decision in terms of specific legal questions. This happens on those occasions only when an actual problem, relevant from the perspective of constitutional law is raised.” at the stock market. In this exact case, the court had failed to acknowledge that the freedom of the press was significantly influenced and it handled the case merely as an administrative legal issue. This was the first occasion for the Constitutional Court to express that all courts are obliged to take into account the relevance of fundamental rights in the concrete cases. The lack of such an investigation means that the Constitutional Court does not have to examine 69
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PROFESSIONAL SPOTLIGHT Constitutional complaints in 2018 according to the branches of law
any other aspects; it is a satisfactory basis for the annulment of the decision. After that the judge makes a new decision on which the Constitutional Court has no influence anymore. If we examine the shares of the specific branches of the law in the cases referred to the Court, it can be inferred that in 2018 civil law made up 42%, administrative law 24% and criminal law 18% of our procedures. Besides, 11% was brought on labour law and on electoral matters as of 5%. Even though the manifestation of the specific fields of law is clear, it is not relevant from the perspective of the Constitutional Courtâ€™s jurisdiction but it is rather a secondary, orienting element for us. The table indicates that the consideration of the constitutional aspects must pertain to the legal system as a whole, regardless of the specific branches of law, since the Constitutional Court examines cases of
civil, administrative, criminal or labour law, as well as matters related to elections within the framework of the constitutional complaint procedures.  The rules regarding the posterior norm control were significantly changed by the provisions of the Fundamental Law. Until the end of 2011 anyone, without any legal interest had been entitled to submit a petition for seeking a constitutional review of a legal norm. According to the new rules that entered into force on 1st January of 2012 such a proceeding can be initiated only by the Government, one-quarter of the Members of Parliament, the Commissioner for Fundamental Rights (ombudsman), the president of the Curia and by the General Prosecutor. If, upon such a petition, the challenged law is found to be contrary to the Fundamental Law, the Court annuls it. Generally, in such a case, the annulled law remains in force until the
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PROFESSIONAL SPOTLIGHT publishing of the Court’s decision and the annulment does not concern the already existing legal bounds. In exceptional cases, the Court may order the retroactive or the pro futuro annulment of the unconstitutional regulation, for the sake of legal certainty. (Source: https://hunconcourt.hu/ competences/)
“The Constitutional Court has a key role in the preservation and protection of the rule of law, this is actually the reason why the socalled “Kelsen-type” constitutional court jurisdiction had been established.” Lawyr.it: How would you evaluate the current role of the Constitutional Court’s jurisdiction - especially in the sphere of maintaining and strengthening the rule of law and specific constitutional values? T.S.: The Constitutional Court has a key role in the preservation and protection of the rule of law, this is actually the reason why the so-called “Kelsen-type” constitutional court jurisdiction had been established. Naturally, the concept of the rule of law had a different meaning at that time. The other related and core function of the Court is the protection of fundamental human rights. This forms a major part of our job, since the rule of law is also to be defended through the protection of the rights of the individuals. Another interesting task - which is a characteristic of the constitutional courts
in the Member States of the European Union - is that the courts are given the opportunity to get engaged in the crosscountry dialogue. This gains specific significance, because various legal regimes exist parallel within the European Union: the EU law which becomes internal law, e.g. in the case of directives, and the laws of the Member States that represent the roots of European law. Alongside their national laws, the states set up a unique legal system which lacks a state as a background. This was also expressed by the Court of Justice of the European Union. It is necessary to highlight that there is no hierarchy among these systems. This regime is maintained by the states, it is the parallel nature and the lack of hierarchy that demand discussion. In my view, this is certainly a positive tendency which needs to manifest itself in the dialogue between the Court of Justice of the EU and the constitutional courts of the Member States, as well as among the con-
“The other related and core function of the Court is the protection of fundamental human rights. This forms a major part of our job, since the rule of law is also to be defended through the protection of the rights of the individuals.” stitutional courts themselves. This process enriches both the law of the EU and the Member States and although the end of it cannot be seen clearly at this mo69
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PROFESSIONAL SPOTLIGHT ment, it is a challenging and exciting mis- the constitutional complaints against jusion to shape and observe this progress. dicial decisions . Thereby, the Court examines the interference of the judicial Lawyr.it: What kind of international interpretation of the law with fundamenrelations does the Constitutional Court tal rights and we consider the German have, what is the role of the President in Court as an example, since its knowlthe establishment and maintenance of edge and experience are forty-five years these? ahead of ours in this field. We have also received an invitation to a bilateral meet“The Hungarian Constitutional ing next year. Having said that, the PresiCourt has bilateral as well as mul- dent of the German Court, Mr Andreas Voßkuhle - as well as Mr Koen Lenaerts, tilateral relations. We tradition- the President of the Court of Justice of ally have a firm and well-function- the European Union - accepted to hold ing relationship with the Austrian a keynote speech on a conference that is Constitutional Court.” to be organised by the Hungarian Court in March of 2019. I attribute specific significance to this in light of the judicial T.S.: The Hungarian Constitutional dialogue across Europe. I have often exCourt has bilateral as well as multilateral pressed my concern - also at the World relations. We traditionally have a firm Conference on Constitutional Justice and well-functioning relationship with “ I have often expressed my conthe Austrian Constitutional Court. We organise meetings on a yearly basis in cern - also at the World ConferTransdanubia, Styria or Burgenland. The ence on Constitutional Justice former President of the Austrian Court, - that the mother tongue of Hans Mr Holzinger has been awarded with the highest decoration of the State by the Kelsen gradually loses its domiPresident of the Republic. It was solemn- nance in constitutional courts and ly given to him within the framework of a is frequently replaced by French bilateral conference with the Minister of Justice. I also attribute a high relevance and Spanish, even though the Gerto the formation of bilateral relations man language is genuinely approwith the German Federal Constitutional priate for discussing and analysing Court. One of the main reasons for this constitutional matters. ” is that in 2012 the Hungarian Court was vested with the power, which originates from the German Court: to decide in the that the mother tongue of Hans Kelsen cases of Urteilverfassungsbeschwerde, gradually loses its dominance in consti-
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PROFESSIONAL SPOTLIGHT tutional courts and is frequently replaced by French and Spanish, even though the German language is genuinely appropriate for discussing and analysing constitutional matters. It creates a complicated situation, since it is not possible to express certain legal concepts and terminology in a substantively accurate manner in these languages. As for English, the remarkable dissenting features of the common law system compared to the continental legal regime(s) sometimes make it improper for this purpose. I hope and trust that the future would bring a positive line of development in this regard. We maintain close connections with the constitutional courts of the neighbouring States. We tend to organise yearly gatherings with the Romanian Constitutional Court and President Dorneanu also places great emphasis on the maintenance of these. The Hungarian Court took a side with the Romanian Court on international forums when the President of the Republic of Romania claimed that he was not willing to implement the decision of the Court. Although the Hungarian Court was the only one which declared that every Constitutional Court resolution - regardless of their content - is executable, I consider this approach truly important. We also cooperate with the Slovakian and the Czech Constitutional Courts. For example, we are in the preparatory phase of a conference in Brno. Besides, the Czechs will also organise the Conference of European Constitutional Courts in Prague. I could also mention several other courts, for instance, the
Serbian, Croatian, Slovenian or the Polish, as well as the Belgian or the Dutch, but we also preserve close connections to the Swiss Supreme Court. It is fair to say that I shall consider the Swiss President, Mr Ulrich Meyer as a friend of mine. Our relations with the Venice Commission bear specific relevance. I participated in a plenary session of the Commission last
â€œWe maintain close connections with the constitutional courts of the neighbouring States. We tend to organise yearly gatherings with the Romanian Constitutional Court and President Dorneanu also places great emphasis on the maintenance of these.â€?
summer on which I introduced the decisions of the Hungarian Court related to the working of the Commission. The European Court of Human Rights is another key partner and a bilateral meeting will take place next year with the contribution of former president of the Constitutional Court, PĂŠter Paczolay. Last but not least, the intensive cooperation with the accredited diplomatic bodies in Budapest is also remarkable and it is worth being mentioned. As President I regularly hold informative meetings on which most of the ambassadors are present, which leads to the fact that they can also turn to us with trust and this contributes to the direct communication and discussion.  After the new Act on the Constitutional Court entered into force, constitu69
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PROFESSIONAL SPOTLIGHT tional complaints may be submitted not only against the legal regulations, but also against concrete judicial decisions. The person or organisation affected in concrete cases may turn to the Constitutional Court against the judicial decision that was contrary to the Fundamental Law if the decision made regarding the merits of the case or other decision terminating the judicial proceedings violates their rights enshrined in the Fundamental Law. It is also required that possibilities for legal remedy have already been exhausted by the petitioner or no possibility for legal remedy is available for him or her. The subject of the examination is the judicial decision itself and not the legal regulations. When the Court establishes that the judicial decision is contrary to the Fundamental Law, the Court annuls the decision. (Source: https://hunconcourt.hu/competences/)
instance, the Austrian and the Slovenian lawmaker made the choice to acknowledge the rules of the Convention - and thus, the case law of the ECtHR - on a constitutional level. The Hungarian approach is different: to place the relevant norms on the stage of laws, on a degree lower than the constitutional protection. This does not mean that there would be a difference in the measuring on several occasions, however, there are some cases of differentiation. As an example, the
â€œThe human rights protection system formed on the basis of the European Convention on Human Rights under the aegis of the Council of Europe is a regime of immense importance. States Parties may decide in what way and on what level they wish to carry out its integration into their national constitutional sphere.â€?
Lawyr.it: How would you describe the role of the case law of the European Court of Human Rights in the jurisdiction of the Constitutional Court in comparison to former tendencies and how significant Hungarian Constitutional Court could role should it play in your opinion? only provide and ensure the protection T.S.: The judicial dialogue also plays an of purchased property under the right to outstanding role in terms of the Euro- property. In contrast, the practice of the pean Court of Human Rights. The hu- ECtHR places the peaceful enjoyment man rights protection system formed of benefits and possessions into focus in on the basis of the European Conven- the sphere of the same right. This implies tion on Human Rights under the aegis that the Hungarian Court will not underof the Council of Europe is a regime of stand the loss of a concession or a licence immense importance. States Parties may to a given activity under the scope of the decide in what way and on what level protection of property, but they could they wish to carry out its integration into only be taken into account in the field of their national constitutional sphere. For the right to enterprise. The approach to-
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PROFESSIONAL SPOTLIGHT wards the decisions of the ECtHR is the tal Law entered into force. A core reason easiest when our measures are similar or for this phenomenon is that the abstract exactly the same as the ECtHR’s. Accord- posterior norm control - that played a key in the functioning of the Court until “These days the Constitutional role 2012 - did not require the references of Court primarily carries out case- the case law to a vast extent. These days law jurisdiction which demands the Constitutional Court primarily caran increased presence of ECtHR ries out case-law jurisdiction which demands an increased presence of ECtHR practice in the resolutions.” practice in the resolutions. ing to one of our recently conducted researches - from 721 references to foreign courts’ decisions between 1998-2008 altogether - the Hungarian Court cited the case law of the ECtHR in 65 resolutions (9% of the relevant cases). It is interesting that this number increased to 73 to this day since 2012 when the Fundamen-
Lawyr.it: What is the proportion of the types of cases in the Constitutional Court’s jurisdiction? To what extent are the cases rejected? T.S.: It may be observed that between 2012-2018 the constitutional complaints formed 93% of the cases, judicial initiatives for norm control in concrete cases
Petitions arriving to the Constitutional Court according to competences
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PROFESSIONAL SPOTLIGHT 6%  and only 1% was represented by the posterior norm control, the preliminary norm control  and by other types of petitions. The data from 2018 are quite similar, the proportion of judicial initiatives has risen to 8% and the constitutional complaints formed 91%. The reason for this is that the Fundamental Law has placed emphasis on the individual protection of fundamental rights, which has two dominant understandings. One of them is that initiating a posterior norm control now has three ways: (i) the judicial initiative by any judge on any level of the institutional hierarchy if he or she believes that the regulation to be applied is contrary to the Fundamental Law, (ii) the constitutional complaint aimed at norm control when the petitioner argues that the law which had been applied by the court in the binding judgment violated the Fundamental Law and (iii) the “direct” constitutional complaint in which the petitioner claims that a rule - without a judicial decision or an intervention by the authorities - violated his or her fundamental rights directly. Therefore, the range of the concrete posterior norm control is comparatively wide, whereas the right to initiate abstract posterior norm control has been limited as I mentioned before. The role of this power, which had previously been a main sphere of the Constitutional Court’s jurisdiction, has largely been replaced by the concrete posterior norm control and the strongest means of the individual protection of fundamental rights: the constitutional
complaint against judicial decisions. The Constitutional Court’s procedure consists of two phases: first, the Secretary General examines the petitions based on formal and substantive requirements prescribed by the Act on the Constitutional Court. Then comes the judicial analysis and the discussion on the merits of the case. As a significant percentage of the petitions do not fulfil the prior legal requisites, only about 30-40% of the cases reach the judicial phase. Considering the cases assigned to the Judges it may be inferred that there is a similar ratio in matters which are suitable for being substantially decided by the Court. In the present year:
Decisions by decision-making organs
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Rejections by the Secretariat
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Concluded cases / decisions in the merits in the past three years (2015-2018)
The graph depicts that approximately 65% of the complaints prove to be inadmissible in the phase of the examination by the General Secretariat. This tendency was characteristic in the past three years as well.  In case of posterior norm control the Constitutional Court performs an abstract norm control, and the object of the examination is the norm itself. The decision usually does not affect the concrete case which was the base of the petition. The situation is different if a judge, in the course of the adjudication of a concrete case in progress, is obliged to apply a legal regulation that he or she perceives to be contrary to the Fundamental Law, or which has already been declared to be contrary to the Fundamental Law by the Constitutional Court.
In this case the judge shall suspend the judicial proceeding and submit a petition to the Constitutional Court stating that the legal regulation or a provision thereof is contrary to the Fundamental Law and for the exclusion of the application of the legal regulation contrary to the Fundamental Law. The Constitutional Court may establish that the legal regulation or a provision thereof is contrary to the Fundamental Law and may exclude the application thereof in the concrete case or even with a general scope. (Source: https://hunconcourt.hu/competences/)  The ex ante review of conformity with the Fundamental Law, i.e. preliminary norm control, is based on a petition containing an explicit request submitted by an authorised person (the Parliament or the President of the Republic). The Con-
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Decisions according to content (2012-2018)
stitutional Court examines the conformity of the adopted but not yet promulgated provisions with the Fundamental Law. This competence of the Court extends to the preliminary review of the conformity of certain provisions of international treaties with the Fundamental Law. (Source: https://hunconcourt.hu/competences/) Lawyr.it: In comparison to other States, how does the percentage of rejections look like in the practice of the Hungarian Constitutional Court, to what extent
are the cases accepted for consideration and what could be the reason(s) for possible differences? T.S.: Examining the statistics, it is fair to say that more than 70% of the petitions referred to the Court cannot be accepted for consideration of the merits of the case at all, they need to be rejected immediately, and only 500-600 cases are examined by the Court from about 2000 cases per year. In 2018, rejections on formal grounds amounted to 76%, while deci69
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sions on the merits were 24%. By comparison, only 2.3% of the constitutional complaints were “successful” at the German Constitutional Court last year. Besides, the Croatian, Slovenian and Czech Courts annul hundred(s) of judicial decisions per year, whereas the Hungarian Court’s statistic on annulments is around 10-15 cases, which may imply that there are no systematic issues that could justify such excessive interventions. The chart shows the data from 2018. Approximately 24% of the cases have been concluded with a decision on the merit or rejection on the merit and 76% of the claims have been rejected on formal grounds. Rejection on the merit can take place when the Court concludes that the given legal norm or judicial decision is in accordance with the Fundamental Law. The Court also has the power of annul-
ment, to declare a ban on application or legislative omission. This happened in 6% of the cases. Lawyr.it: What are your views on the future of Constitutional Court jurisdiction in light of the decreased role of the preliminary and posterior norm control and the increased proportion of constitutional complaints? T.S.: In my view, constitutional courts would have a significant role both at the level of the European Union and specifically at the national level. It has already been expressed in the 1990s that the rule of law is a reality and an objective at the same time, thus it can always be improved, and the system of the protection of fundamental rights shall also be constantly developed. The discussions between the courts and with the Court of Justice of the European Union also bear specific
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PROFESSIONAL SPOTLIGHT relevance as they contribute to the enrichment of the national legal regimes. The Constitutional Court always strives for the formulation of a more advanced legal dogmatic and the German Constitutional Court, as well as other ones the powers of which are similar to those of the Hungarian Court, serve as important examples. The increasing precision of the dogmatic of constitutional law provides the maintenance and strengthening of the trust of the community towards the Court. As the Constitutional Court does not have the executive power to ensure the realisation of its decisions, their acceptance and appearance in the practice is largely dependent on a vulnerable
social consensus. In lack of executable resolutions, our decisions would only be implemented if the subjects can trust the Court. In my opinion, we are on the right path in this regard and all the constitutional courts in Central-Eastern-Europe make remarkable efforts to reach public confidence through resolutions of everincreasing quality. I shall find this as the main aim of the courts, especially in those states where the institution of dissenting opinion exists. It is undeniable that a Judge of the Constitutional Court may only be genuinely independent if he or she has the right to express such an opinion. However, this also sets a higher standard and requirement for the majori-
The constant increase in the number of constitutional complaints
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PROFESSIONAL SPOTLIGHT ty decisions: their persuasive power must be increased gradually to endure the necessarily erosive effect of dissenting opinions. This is similar to a pile of hay being hung in front of the mule: it may never be reached, it is motivating, though.
“Therefore, the power of annulling judicial decisions does not violate the judicial independence. Technically, we have a right of cassation and the Curia bears the competence for further procedural steps to be taken - based on the resolutions - in the judicial system.” Within this sphere there is also a constant rise of the complaints against judicial decisions. Lawyr.it: How do you see the realisation of the declarations and decisions of the Constitutional Court in the legal practice? Have there been cases that turned out to be specifically problematic from this aspect? T.S.: The fact that the Constitutional Court has been vested with the power of annulling binding judicial decisions, even the decisions of the Curia, has unavoidably created an opportunity for a debate between the ordinary courts and the Constitutional Court. The judges of the ordinary courts often refer to the Constitutional Court Judges as “generalists”, while Constitutional Court Judges may
find the ordinary court judges “specialists”. I don’t think that this approach is correct, as we have completely different spheres of influence and jurisdiction. In my view, the Hungarian law-maker properly settled the Constitutional Court’s supervision as of ultima ratio character. Therefore, the power of annulling judicial decisions does not violate the judicial independence. Technically, we have a right of cassation and the Curia bears the competence for further procedural steps to be taken - based on the resolutions - in the judicial system. This is especially important, since the Constitutional Court may never take over the function of the ordinary judicial organs, it even has to avoid the impression thereof. The Constitutional Court annuls the judgment and the case regularly starts over at the level of the ordinary court(s). After that we make an attempt to figure out how these cases were concluded and - based on the practice of the last five-six years - completely different paths can be witnessed when it comes to the reactions to and realisation of our resolutions. Probably the most interesting option is when the Curia widens the scope of our decisions for which the prior legal interpretation within a specific branch of law had not given opportunity. For instance, in case of a fine which resulted from draining, the Constitutional Court declared that if the authority misses the deadline for imposing a penalty for environmental protection, this means the violation of the right to fair proceedings in itself.
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PROFESSIONAL SPOTLIGHT Thus, a procedure in which the authority does not have to keep the regulations, while the polluter is fined for the breach of the law, and could be fined regardless of the deadline, cannot be fair. The Constitutional Court held that neither the fairness of the procedure, nor the requirement of equality before the law made the breach possible for the authorities. The Curia agreed with this approach and extended its scope to all cases of administrative law, among others, to tax matters. It is significant that the ordinary courts have the right to interpret our resolutions in a broader manner and if we can convince them of their correctness, they are in fact doing so. Another, a little more extreme situation is when the decisions of the Constitutional Court pertain to a firm and long-established legal dogmatic. Naturally, the integration of the differing principles and findings into the legal system proves to be more complicated, for example, when the courts should reinterpret a decade-long legal practice established in proceedings about the rights
relating to the personality. According to the interpretation of the Constitutional Court, this practice may violate concrete
“Naturally, the integration of the differing principles and findings into the legal system proves to be more complicated, for example, when the courts should re-interpret a decade-long legal practice established in proceedings about the rights relating to the personality.” fundamental rights, such as the right to the freedom of expression. It happened that the Court had to formulate the same decision on different occasions to initiate its acceptance in the legal practice. In these cases, it is understandable that there is a more confrontative attitude and slow acceptance. However, in order to defend fundamental individual rights, we have no other choice but making certain dogmatic changes. Evidently, there is a third large sphere, when the courts simply accept our decisions and where they act accordingly without broadening their scope. This is what happens in the vast majority of the instances.
“For instance, in case of a fine which resulted from draining, the Constitutional Court declared that if the authority misses the deadline for imposing a penalty for environmental protection, this means the Lawyr.it: How would you evaluate the violation of the right to fair pro- limitation of the powers of the Court in ceedings in itself. ” terms of the economic matters based on
which the Court may only examine such issues in case of a violation of certain
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PROFESSIONAL SPOTLIGHT fundamental rights? T.S.: I take the view that a complex, differentiated approach shall be applied in this regard. It is important to examine the reasons in the background. In order to avoid the increase of the state debts, the lawmaker wanted to have a moratorium in matters of the budget in terms of
“The Court already established a practice in 2012-2013 that those rights which may serve as bases for the examination shall be interpreted broadly, whereas the scope of the limitation should be narrowed.” the decisions of the Constitutional Court. When the map of the “new Europe” was drawn in Yalta and Hungary fell under Soviet occupation it was foreseeable that fifty years of communism would not bring about economic flourishment and a significant part of our debts stem from this period. The other aspect is that the diminution in question is limited in time, it depends on the condition that state debts fall under 50% of the GDP. With the realisation of this requirement, it seizes to exist immediately, without any further action of the lawmaker. Besides, the limitation is partial, since the Court’s supervisory power still exists with reference to certain fundamental rights. The Court already established a practice in 20122013 that those rights which may serve
as bases for the examination shall be interpreted broadly, whereas the scope of the limitation should be narrowed. In addition, the diminution does not concern the constitutional complaints against judicial decisions, the analysis of conflicts with international treaties and we have already carried out examination based on judicial initiative. It does not pertain to the regulation of tax procedures, so we can examine the keeping of the fairness of these proceedings on every occasion. It is also worth mentioning that parallel with the limitation in this field, the powers of the Court were broadened in the sphere of the individual protection of fundamental rights. Also, the laws on the budget and taxes usually remain outside the Court’s jurisdiction, since it would be difficult to make a difference between a tax rate of 16% and 20% from a perspective of fundamental rights. These questions barely have constitutional relevance
“In general, I could tell that although we cannot consider a limitation of power as a positive phenomenon, the course of Hungarian history, especially the state debts deriving from the communist era may provide justification to a certain extent.” and their evaluation would therefore be problematic. Self-evidently, if the rate of the tax becomes extremely excessive, an issue may occur, however, in this case
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PROFESSIONAL SPOTLIGHT there would be such concrete rights that would provide reasons for the examination by the Court. For instance, we conducted analyses last year with reference to the freedom of religion, but evaluation on the basis of human dignity may rise as well. In general, I could tell that although we cannot consider a limitation of power as a positive phenomenon, the course of Hungarian history, especially the state debts deriving from the communist era may provide justification to a certain extent.
“The Constitutional Court’s jurisdiction is always strictly connected to the Fundamental Law, thus, it has a completely different nature today than under the former Constitution.” Lawyr.it: How do you consider the last twenty years of the Constitutional Court’s functioning compared to the previous, more activist tendencies and how do you see the Court’s current jurisdiction?
background this tendency was perfectly understandable and justifiable. The main function of the Court back then was to sweep away the socialist elements from our legal system. (In Italy for example, it took more than ten years to set up the Court, still, it wiped out more than forty regulations deriving from the fascist regime.) In that situation the Hungarian Court adequately annulled even more rules. It was a significant change with the entering into force of the Fundamental Law that the role of the abstract posterior norm control - which had already meant a huge burden on the proper functioning of the Court - was reduced. Parallel with the decrease of the proportion of posterior norm control, the constitutional complaints gained dominance, these form approximately 90% of the Court’s jurisdiction these days, and the Court has the opportunity to deal with cases of less political character. Naturally, such cases sometimes occur unavoidably, but we are striving for performing the best of our knowledge and expertise on these occasions to provide clear constitutional argumentations and messages behind the political contents and to place the real emphasis on the professional aspects and considerations.
T.S.: The Constitutional Court’s jurisdiction is always strictly connected to the Fundamental Law, thus, it has a completely different nature today than under the former Constitution. Following the political changes in 1989-1990, the Constitutional Court was de facto the “second chamber” of the Hungarian Parliament and in the light of the specific historical
By Krisztina Petra Gula
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QUESTION OF THE ISSUE
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QUESTION OF THE ISSUE How effective do you think environmental regulations are in your country?
In the current Question of the Issue section, we inquire about the various regulations re-
garding the protection of the environment, the realisation of the prescribed measures and their effectiveness. We have the chance to gain an impression of different states and models across Europe, for instance, France, Romania and Finland, the most characteristic problems, the clashes of interest groups, political intentions and motivations behind compliance or – more often – non-compliance. The question is examined from the viewpoint of the polluters, as well as from the aspect of those being affected and the possible reaction of the national governments. By Krisztina Petra Gula and Oana Bahnean "In order to answer this question, it is enough to look around and you will soon realise that the laws are not effective and there is enough proof of the said matter. There are many examples of environmental problems, but I shall mention, perhaps, the most stringent one that has plenty of “waterfall effects”: deforestation. Romania – like all the other countries that got to the conclusion that environmental rules were needed in order to restore what had been ruined by humans’ industrial dream – adopted such laws, but soon faced the reality that it’s not enough to come up with a law. I don’t consider that the problem is necessarily the law itself. The problem rather stands with the people: those who apply it and those who should obey it. It does not sound too hard to follow these environmental laws, however many people still lack the education and the respect one should have for nature. Once education and respect are gained, rules become easier to follow. Most people who break the law tend to think only of the short term advantages and not the long term consequences of their actions. And those consequences, unfortunately, have already started to show. Deforestation has affected the quality of the air, landslides are more regular, animals die out of starvation. In some areas, people have a hard time to keep their homes warm during cold weather, because the only way to do that is by burning wood, which – like any good that is of shortage – is neither easy to find, nor cheap. As for the authorities, they tend to focus on people who commit petty crimes out of poverty, rather than on large industrial companies that have the main role in massive deforestations. In the end, only empty hills and mountains will be left; the leftovers of a once mighty forest. This leads me to believe that environmental laws should include more severe punishments, as well as the imperative condition of actually applying those punishments in all the cases, regardless of the identity of the person found guilty." By Oana Băhnean, LL.B. in Law. Babeș-Bolyai University, Romania
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“I believe an answer to this question requires a gradual approach; a brief analysis of how legal effectiveness is achieved. Firstly, for something to be effective, a strong foundation needs to be laid. This is done by prioritising general regulations first and foremost; regulations which draw the outline of the more specific laws that are due to be adopted in the future. In our country, this natural “route” has been ignored, special regulations and laws were adopted before having any fundamental law or regulation to rely on. As such, special regulations and laws had already been in effect for ten to fifteen years by the time OUG 195/2005 regarding environmental protection was adopted. Although prior to OUG 195/2005 a void concerning laws and regulations cannot be detected, previous legislation was scarce (with only two fundamental laws concerning environmental law being adopted) and the legal documents did not encompass all the issues at hand. For example, Law 9/1973 regarding environmental protection did not specify anything about the principles guiding legal practice. Its successor, Law 137/1995, tried to repair the flaws by including various principles, but most of them were deemed impractical, because the access to justice, renown legal principle, was omitted. Such lack of precaution left the two fundamental, general laws and other special laws ineffective up until OUG 195/2005 was adopted. Secondly, the hierarchy of legal documents requires, after laws and regulations are adopted, the executive power to adopt its own set of legal documents, which are bound to apply the abstract concepts to specific situations. Regarding this aspect, our legislation lacks, to this day, the necessary regulations, adapted to each specific situation in particular. Altogether, these issues turned and continue to turn the laws and regulations into insufficient means. We might have the legal norms at our disposal, but we certainly lack a mechanism to substantially regulate the situations that arise. ” By Christian-Dorel Grosu LL.B. in Law, 3rd year Babeș-Bolyai University, Romania "In general, Finland pays a lot of attention to protecting the environment and legislation plays a key role in this process. Many activities that might have an impact on the environment are subjects to permission and strictly regulated. Forests, lakes, drinking water and air quality are among the cleanest in the world, which indicates the efficiency of the Finnish environmental laws and regulations. There are increasing advancements of environmental scientific knowledge and investments in clean energy. However, we can only prevent or diminish the adverse impacts of environmental disruption with strong and effective regulation. Finland’s current environmental policies still have room to improve. Reaching the
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QUESTION OF THE ISSUE How effective do you think environmental regulations are in your country? goals laid down in the Paris Agreement and the Kyoto Protocol will require even bolder actions from the legislators. Finland will start its Presidency of the Council of Europe in July with an agenda to combat climate change and promote sustainable development while leading the global community through sharing its own best practices." Eve Ahonen International Law BA Student at Tallin University School of Governance Law and Society, Helsinki “One of the main particularities of the French environmental regulation is that France has introduced a self-standing text in the Preamble of the Constitution. The Charter for the Environment, adopted on 1 March 2005, comprises a set of principles meant to constrain the action of public authorities. Nonetheless, the justiciability of these measures has been severely crippled by their lack of precision. Difficult to enforce, they are perceived by scholars as mere guidelines, with no sanction attached in case of violation. Considerable advances in legislation must be noted, though, particularly with the recent example of the Biodiversity Act 2016 – a law passed after two and a half years of harsh debate and over 200 amendments coming from the Senate only. Despite the undeniable progress, the French regulation has often been accused of hiding behind technical subjects to avoid the most important and controversial issues. With widespread hostility against environmental measures, France’s regulatory authorities have yet to overcome a number of challenges to become properly effective. Pressure from farmers, for example, is impossible to be neglected and has often led to the complete lack of the realisation of certain directives. Furthermore, pro-hunting lobby groups remain strong and visible, pursuing the line of historical attachment to the matter.” Ioana-Mara Rațiu Environmental Law student, 1st year of Masters University of Paris 1 Panthéon-Sorbonne
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“The effectiveness of the environmental regulation in Romania as the bedrock of environmental protection is subject to many debates and conflicts between the various stakeholders. Although the interest in environmental protection has reached new peaks in the last decade, the Romanian legislative and executive authorities do not seem to regard the matter as a top priority for the country’s sustainable development and security, ignoring furthermore the future generations of Romanian citizens, as well as the country’s rich biodiversity and diverse natural landscape. Firstly, if we analyse the Romanian Parliament’s attitude towards international environmental legislation, we must note that Romania was among the last EU countries to ratify the Paris Agreement; a fact that reveals the lack of interest in the major concern of climate change, even if our country faces draughts, floods and other devastating weather conditions regularly. Secondly, at this moment, Romanian legislation accurately reflects the environmental requirements agreed upon on the EU level. Still, their implementation is a challenge in general, characterised inter alia by a lack of planning, coordination and appropriate funding. Romania has failed to respect the deadline for the integration of environmental directives into the national law several times, while the measures it adopts are often de facto (substantially) unable to ensure the results envisioned by the Union’s environmental acquis. The European Commission has addressed a large number of reasoned opinions to Romania, e.g. for failing to adopt noise maps, showing noise exposure within the bigger agglomerations or to communicate measures to reduce emissions from petrol vapour according to EU rules on air quality or tackle down the consumption of lightweight plastic carry bags as required by the Plastic Bags Directive. In my opinion, the enforcement of environmental regulation is dependent on the effectiveness of the relevant Romanian regulatory authorities, which are facing a large number of challenges themselves: government instability and lack of vision, protection of shadowy lobbying relationships which undermine their authority, weak public information campaigns on public or private projects, which might affect the environment, as well as scarce resources (despite the fact that Romania is encouraged to make better use of the EU funds to address these challenges and enhance the coordination of its administrative mechanisms). All these issues lead to difficulties in enforcing the legislation and thus NGO’s and affected citizens have no other choice but to address the courts in order to invoke their right to a healthy environment and other derived rights.” Maria-Claudia Andrieș Attorney at law Bucharest Bar, Romania
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DEVIL'S ADVOCATE Should same-sex marriage be considered a human right? This issue's advocates: PROs: Dora Bidică Dora is a proud graduate of Babeș-Bolyai University (LL.B.) and she is currently pursuing her LL.M. in International Arbitration at University of Bucharest. Dora is working as a junior associate on the Litigation&Arbitration department of a well-know law firm headquartered in Bucharest. CONs: Andrei Gongea Andrei is a fourth-year student at the Faculty of Law of Babeș-Bolyai University in Cluj-Napoca. He is interested in commercial law and last year he gained experience in the field through internships in law firms in both Bucharest and Cluj-Napoca. He wants to pursue a career as a lawyer.
Debate Foreword. Moderator's note Same-sex marriage is indeed a controversial and highly disputed subject everywhere around the globe. Countries have fundamentally different approaches when it comes to this rather sensitive topic, some of them allowing same-sex marriage, others recognising a ‘softer’ version of it -the civil partnership- and some not allowing LGBTQ couples to form any type of legal partnership. Should we all eventually agree that same-sex marriage is a human right that should be recognised to anyone who wants to start a family? Or is it a bit too soon for such a bold solution? These questions are about to be answered in the following debate. We invite you to read it and decide for yourselves which side is the most persuasive and convincing. We hope that you will find it just as interesting as we did! By Adina Ionescu
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Opening Remarks Dora Bidică: For some people, marriage may be a trivial matter. For others, however, it may represent the pursuit to happiness; something to aspire to. Therefore, being told ‘You cannot get married’ is often perceived as a direct interference with their personal life.
Andrei Gongea: In the case of Schalk and Kopf v. Austria, the European Court of Human Rights has clarified that the term ‘marriage’ in the European Human Rights Convention must be understood today as it was understood back in 1950, the year when the Convention came into force. As a consequence, the right to marry and to form a family, set out in Article 12 of the Convention, is only enjoyed by different-sex couples. According to the Court this does not prevent states from legally recognising same-sex ‘marriages’, but at the same time it cannot be said that they are obliged to do so.
As a preliminary note, the concept of marriage must be defined. Marriage is plural in both content and meaning, this institution housing many aspects of human life, much as sexual relations, friendship and mutual responsibility. Intimate partnership can mean different things to different people at different times. For many people it would (ideally) involve caring for each other, living together in the same house, raising children together or having some It is difficult to judge and assess the right time to things in joint possession. However, none of these make a change and I do not think that one must characteristics seems to be a universal sine qua non wait until the last moment (in this case, when you condition for marriage. are legally bound to take action) to do so. However, Why is marriage so important to some? Being seen if history has taught us anything, it is that the moas a statement of love and commitment, in front of ment you can be certain that a deeply-rooted sowitnesses, it’s a fair trade: we declare commitment, cial conception, such as the marriage between man and society, in response, recognises this commitment. On the other hand, marriage is important and woman being the only one regarded as a human in the light of some benefits such as favourable tax right, must be changed is when a highly powerful treatment, inheritance, rights in health, insurance and respected institution is enforcing it and when status and so on. the general consensus can be described as ‘enough Until very recently, marriage was a lifelong com- is enough’. I do not think we are there with the issue mitment by one man and one woman, sanctified by at stake and I believe it will take a long time before God and the State, having as purposes companion- we reach that hypothetical breaking point, hence ship and children rearing. In the light of recent case the Court’s rather neutral position. law, e.g. Obergefell v. Hodges, the Supreme Court of the United States ruled that the fundamental right Nonetheless, in the same decision of Schalk and to marry is guaranteed to same-sex couples. I would Kopf v. Austria, the Court, for the first time, adlimit myself to only highlight the main arguments vanced the theory according to which the relationthe Court had emphasised: ship between two same-sex ‘partners’ was a kind of • The Constitution promises liberty to all ‘family relationship’ that deserves protection under within its reach. This apparently in abstracto Article 8 of the Convention. notion of liberty actually refers to the fact that it includes certain specific rights that allow per- It may seem as though the Court’s theory does not sons, within a lawful realm, to define and ex- help the opposition I am trying to make, but, actupress their identity. It extends to certain personal choices i.e. marrying a same-sex person, ally, it serves it just right. Leaving aside the Court’s central to individual dignity and autonomy, failure of providing any kind of solid legal arguincluding intimate choices that define personal ments in this ruling or those that followed, this theidentity and beliefs. The reasoning of the Court ory just goes to show that the Court was not ready is extremely coherent as it refers to the personal to take a more decisive route, which in this case choice regarding marriage as being inherent in would be raising same-sex marriage to the exact the concept of individual autonomy. same legal status as the traditional marriage. Why • Moreover, the Court emphasised that the would they not go all the way with the ruling giving right to marry is fundamental because it sup- the apparent laissez-faire social attitude most develports a two-person union unlike any other in
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DEVIL'S ADVOCATE its importance to the committed individuals, its oped countries have adopted? importance being illustrated supra. The answer to these questions coincidentally leads • Finally, the Court had raised the issue of the to my next argument: because we, as a society, are safeguarding of children and families (linking it not ready yet. Such decision would be way too adto child rearing, procreation and education). vanced for our current general level of understandThis issue of the supposedly main purpose of mar- ing and tolerance. Every law, before being passed, riage – procreation – seen as a widely spread ob- should pass the following common-sense test: is its jection to same sex marriage, must be rejected. We target prepared for its effects and does said law reshould all agree that procreation and the protection flect and incorporate the mentality of its targeted of children are important public purposes. Protecting an institution that serves this purpose is a le- demographic? In my opinion, making same-sex gitimate public interest and so there is a legitimate marriage a human right would not pass this test. public interest in supporting potentially procreative The reason is very simple: we need more time. The marriages. Does this mean these is also a public in- vast majority of the fundamental changes our soterest in restraining marriage to only those cases ciety has gone through took decades to reach their where there may be procreation? final form. For example, regarding the American From my point of view, the difficulties traditional women’s rights movement, it was in 1868 that the marriage seems to face are highlighted by the ris- 14th Amendment guaranteed civil rights to all citiing divorce rates and evidence that children are zens but gave the vote to men only and it was not being damaged by lack of parental support. If so- until 1919 that the American Senate passed the 19th ciety really wants to defend traditional marriage, as it’s surely entitled to do, it should offer support Amendment (by only a two-vote margin) which for marital counselling, drug and alcohol counsel- stated that ‘the right of citizens of the United States ling, strengthening punishments against domestic to vote shall not be denied or abridged by the Unitviolence etc., and not protesting against same-sex ed States or by any State on account of sex’. There marriage. you have it: 51 years between these two crucial moAs a final note, I would like to add that achieve- ments in women’s rights’ history. ment of marriage equality is a further step towards recognition that discrimination based on sexual But the 19th Amendment did not change the genorientation and gender identity is unacceptable. eral perception of women in the American society, There are circumstances where the enjoyment of a which leads us to my final point: making same-sex right may interfere with another. Human rights are marriage a human right would not fundamentally an abstract notion, created, protected and destroyed change anything for the persons involved. What is, by political action. Our laws are flexible and enable us to balance rights and competing public interest after all, the root of the problem? To some degree, considerations, striking the right balance being the unfortunately, discrimination and to a much larger central task for the legislator. These laws can allow degree the social stigma. I personally do not think same-sex couples to marry while simultaneously any of these issues will change overnight, no matter allowing religious bodies to adhere to their beliefs how many laws will be passed. It is an organic proand balance these rights. As Justice Kennedy stated while ruling in the Case mentioned supra, these in- cess that society needs to go through that cannot be dividuals seeking to marry don’t disrespect the idea rushed. of marriage, on the contrary, they respect it so deeply they seek to find its fulfilment for themselves. Moderator’s Note: Dora argues that we, as a society, should not see marriage the same way we did before, as the main source of procreation (thus linking it to the union between a man and a woman only). She points out that the problems which the ‘traditional’ marriage is facing have nothing to do with same-sex couples, so banning same-sex marriage doesn’t shield the current institution of marriage from its difficulties. Moreover, by not allowing same-sex couples to marry legally, we admit that discrimination based on sexual orientation is permitted. Andrei, however, explains how such an old and important institution should not be changed until the society is ready for it and has reached consensus. He proves that allowing same-sex couples to marry does not mean that the general perception of LGBTQ couples will change, because mentalities are not something you can modify overnight. Finally, he compares same-sex marriage with the fight for women’s rights, pointing out that every fundamental change needs a lot of time (even though a lot of people may consider that change being common sense).
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Rebuttal Dora Bidică: It has been argued that the term “marriage” must be understood today as it was understood back in 1950 and therefore must be enjoyed only by different-sex couples. There are several arguments to refute this statement. Firstly, the society must adapt. We used to live in that golden age of marital purity but, in the present, we need to adapt to the social needs of the individuals and evolve towards them.
In the absence of conclusive social science that all can agree upon, society still needs to make decisions. Living in a time of rapid social change, public support for same sex marriage has risen considerably not only in the United States but also in Europe. Over the last 40 years there have been countless situations in which the traditional institution of marriage appeared to be under attack by communities supporting same-sex marriage, at least in the eyes of the many political actors tasked with its defence. With each passing year, however, from the first gay rights approved by democratic parties to the first civil unions recognised in 2000, to the first recognised gay marriage in 2004, it has become clearer that denying same-sex couples the right to marry has been at the centre of the most recent fights for equal protection under the law.
Andrei Gongea: It has been stated that ‘the difficulties traditional marriage seems to face are highlighted by the rising divorce rates and evidence that children are being damaged by lack of parental support’ and that we should focus on fixing these problems instead of protesting against same-sex marriage. First of all, I do not believe that in order to support same-sex marriage one has to bring down or point out the flaws of traditional marriage. Secondly, the causes of failed traditional marriages and the damage the children suffer because of their parents’ actions are related to the basic human nature, to the way we deal with and respond to external factors and to the way we are programmed as individuals, not to the fact that said marriages involve straight people. Same-sex marriages are exposed to the exact same risks as traditional marriages. It has been argued that ‘achievement of marriage equality is a further step towards recognition that discrimination based on sexual orientation and gender identity is unacceptable’. Considering the fact that there are several legal mechanisms in place to prevent discrimination based on sexual orientation and gender identity and the fact that the public is growing more and more accustomed to being ‘politically correct’ anyway, I think it is safe to say that we do not need to raise the status of same-sex marriage in order to make sure that discrimination based on sexual orientation is unacceptable. Surely, said discrimination, unfortunately, still exists, but, as I have mentioned in my opening statement, I do not think this is the solution. In fact, I think general outrage is a far more likely outcome than the sudden halt of discrimination.
However, the future of marriage looks, in one way, a lot like its past. People will continue to unite, form families, have children, and, sometimes, split up. What the Constitution dictates, however, is that whatever the state decides to do in this area will be done on a basis of equality. Government cannot exclude any group of citizens from the civil benefits or the expressive dignities of marriage without a compelling public interest. The full inclusion of same-sex couples is in one sense a large change, just as official recognition of interracial marriage was a large change, and just as the full inclusion of I have also identified the argument that giving the women and African Americans as voters and fact that the Constitution promises liberty to all citizens was a large change. within its reach, same-sex marriage -being a specifAs far as the common-sense test my opponent ic right- is inherent in the concept of individual aurefers to is concerned, I would say that making tonomy and it allows the persons involved to define
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DEVIL'S ADVOCATE same-sex marriage a human right would fundamentally change a variety of things for the persons involved, so it most definitely passes the test. I am referring especially to significant changes, such as the adoption of children. The formal conditions required to adopt would be consistently easier, because right now there are states which prohibit the jointly adoption by unmarried couples. Moreover, I would also mention the benefits that immigration laws provisions state, such as the green card. In addition, hospitalisation, taxes, social security and insurance would be other examples where effects of considering the same-sex marriage equal to traditional marriage would de facto create a wide set of benefits to the individuals. The root of the problem may be, indeed, discrimination, as my colleague mentioned. Bishop Gilbert Thompson who is African-American said “I was born black…I was born male. Homosexuals are not born, they're made. They don't qualify”. This quote illustrates that there is a true separation in our society. Even groups of people that were once discriminated against, and still are, have such a strong hatred for others. Homosexuals are discriminated against every day and will continue to be until they are granted the same rights as heterosexuals. Until generations fade out and religious views begin to change, there will always be controversy when discussing the arguments in favour of and against same-sex marriage.
and express their identity. While I cannot deny that this is a valid point and it could also be applied to many other problematic areas of our contemporaneous society, we cannot forget the fact that while, theoretically, we are given so many rights and liberties, we are also subjected to legal limits. It is not unusual for a right or a liberty to be limited and the right to marry is no exception. After all, the right to marry is not an absolute right. Last but not least, it has been stated that samesex couples respect the idea of marriage so deeply that they seek to find its fulfilment for themselves. I agree that in an ideal scenario everyone should get perfectly equal treatment and an abundance of rights to satisfy every individual’s needs. Also, I think equity (which is the main point of the argument) plays (or should play) a crucial role in every legislator’s thought process when drafting a law. Nevertheless, there are other factors that weigh just as much as equity and, as I have mentioned in my opening statement, we cannot ignore the fact that the social context does not always allow for us to be making changes of this magnitude at will. Maybe it is a step in the right direction, but not for now. Compassion and the ache for social justice and equity should never overshadow rational decisions based on the grand scheme of things, no matter how cynical it may sound.
Moderator’s Note: At this point, Dora points out that society needs to evolve from its principles regarding marriage which were established back in 1950, just as it did with ‘marital purity’. Moreover, she proves that we are already evolving and offering same-sex couples more rights than we did only several years ago, so the change exists and needs to be pushed forward because it’s the state’s duty to make sure that everyone receives the civil benefits of marriage (regardless of their sexual orientation). Lastly, she talks about what concrete benefits these couples would have if they could get married legally and concludes that we can fight discrimination only by treating people equally. Andrei, on the contrary, calls attention to the already existing legal mechanisms which prevent discrimination based on sexual orientation, thus meaning that there is no urgent need to raise the status of same-sex marriage in order to fight discrimination. He also states that equity isn’t the only aspect a legislator takes into consideration when drafting a law, and therefore we should also focus on the social context and the possible backlash caused by a law that doesn’t suit the people it’s addressing to. Even though an initiative may be good, there’s no need to rush its implementation unless it’s the right moment to do it. I hope this debate was a pleasure to read, and the conclusions will help you form an opinion on your own!
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Closing Remarks Dora Bidică: As a final note, the origins of same-sex marriage didn't just start in the 20th century as it may seem. Gay individuals around the world have had the luxury to be recognised as partners and lovers starting more than 1,500 years ago. Believe it or not, same-sex unions were allowed in ancient Egypt, the southern Chinese province of Fujian in the Ming Dynasty and other ancient European times. During these times, same-sex marriage was widely recognised until Christianity became the most dominant religion in the Roman Empire. It was the Theodosian Code of 312 A.D. that prohibited same-sex marriages in ancient Rome, ordering those who were previously married to a member of the same sex to be executed, so here’s how the laws intervene. I would say that an analogy to the marriage between different races must be made. As Dr. Martin Luther King Jr. said, “marriage is a basic human right. You cannot tell people they cannot fall in love.” While he said this about marriage between races, the same can be said about homosexuals. However, marriage is not singled out by commitment, or permanence, or children, or love. It is also not distinguished by religion: some marriages are religious, but many aren’t. The real distinction between marriage and unmarried partnership is the role of the state, marriage being a form of relationship recognised and regulated by the state. The legal recognition of same-sex marriage is undeniably a reflection of social acceptance and vice versa. Decisions such as Obergefell unfortunately prevent discrimination only in the marriage context, as opposed to setting up the framework to prohibit discrimination in areas such as housing and employment. The right to marry is fundamental as a matter of history and tradition, but rights do not come from ancient sources alone. They rise, too, from a better-informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.
Andrei Gongea: Although Dora raised some very good points in her rebuttal, I stand by what I have preached in my opening statement and my own rebuttal. Yes, society has shown recent tendencies of growing and adapting quicker than in the past, but the very same society has shown us repeatedly why same-sex marriage specifically, and same-sex relationships in general are probably the most controversial topic of the modern era. Therefore, we need to treat it with the utmost caution. To end my part of the debate, I would like to bring to your attention the following quotes, which express my arguments better than I ever could: ‘Change the way you look at things and the things you look at change.’ (Wayne Dyer) and ‘Not everything that is faced can be changed, but nothing can be changed until it is faced.’ (James Baldwin). As such, I believe we still have a long way to go as a society before we can consider making one of the greatest legislative changes of the 21st Century. Maybe then we will not even need to have a debate about it.
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16. Zimmer, C. (2018). Genetically Modified People Are Walking Among Us. The New York Times, [online] Available at: https://www.nytimes.com/2018/12/01/sunday-review/crisprchina-babies-gene-editing.html [Accessed 28 6. Lipson, M. &Vallentyne, P. (1991). Lib- December, 2018] ertarianism, Autonomy, and Children. Pub- 17. Zwolinski, M. (2016). The Libertarlic Affairs Quarterly, [online] Volume 5(4), p. ian Nonaggression Principle. Social Philoso333-352. Available at: http://www.jstor.org/sta- phy and Policy, [online] Volume 32(2), p. ble/40435786 [Accessed 28 December, 2018] 62-90. Available at: https://doi.org/10.1017/ 7. Mill, J. (2011). On Liberty (Cambridge S026505251600011X [Accessed 28 December, Library Collection - Philosophy). Cambridge: 2018] Cambridge University Press. Available at: https://doi.org/10.1017/CBO9781139149785.004 Manslaughter committed by a medi[Accessed 28 December, 2018] 8. Nozick, R. (1984). Anarchy, state, and utopia (Repred.). London: Blackwell. 9. Perry, S. (1997). Libertarianism, Entitlement, and Responsibility. Philosophy & Public Affairs, [online] Volume 26(4), p. 351396. Available at: http://www.jstor.org/stable/2961906 [Accessed 28 December, 2018]
cal specialist (Sabina Hutu)
1. Bogdan, A. (2010). Uciderea din culpă comisă de un medic chirurg, Caiete de Drept Penal, no. 1/2010
2. Bogdan, S. and Șerban, D.A. (2017). Drept penal. Partea specială - Infracțiuni con10. Rothbard, M. N. (2007) The Betrayal of tra persoanei și contra înfăptuirii justiției. the American Right. Auburn, Alabama: Ludwig București: Universul Juridic von Mises Institute. 3. Boroi, A. (1992). Pruncuciderea și uciderea din culpă. București: Ministerului de In11. Sandel, M. J. (2010). Justice: What's the
4. Inter-American Court of Human Rights, Ituango Massacres v. Colombia, 2006, Available 4. Chiriță, R. (2008). Convenția europeană a drepturilor omului. Comentarii și explicații. at: http://www.corteidh.or.cr/docs/casos/articulos/seriec_148_ing.pdf (Accessed on January 2nd ed. București: C.H. Beck 20, 2019) 5. Mateuț, G. Uciderea din culpă săvârșită Inter-American Court of Human Rights, ca urmare a nerespectării dispozițiilor legale 5. Moiwana Community v. Suriname, 2005. Availori a măsurilor de prevedere pentru exercițiul unei profesii sau meserii ori pentru efectuarea able at: http://www.corteidh.or.cr/docs/casos/ unei anumite activități, Revista Dreptul, no. articulos/seriec_124_ing.pdf (Accessed on January 20, 2019) 7/2000 6. Moldovan, A. T. (2006). Dreptul medical- ramură distinctă de drept, Revista Dreptul, Internet sources: no. 7/2006 1. The Ministry of Social Policy of Ukraine, 7. Stoica, O.A. (1976). Drept penal. Partea Press-release dated February 5, 2018, Available special. București: Didactică și Pedagogică at: https://www.msp.gov.ua/news/14748.html 8. Tudor, G. (2010). Răspunderea juridică (Accessed on January 20, 2019)
pentru culpa și eroarea medical. București: Ha- 2. The EU delegation to Ukraine, Interview mangiu of David Stulik dated March 21, 2018, Available at https://www.unian.net/multimedia/video/ war/10009412-es-trebuet-ot-ukrainy-vernutWho is to pay for Ukrainian internal- dengi-kotorye-vydelyali-na-vosstanovlenie-obly displaced persons? (Hordii Rumi- shchezhitiy-dlya-pereselencev.html (Accessed antsev) on 20 January 2019) Legislation: 1. Guiding Principles on Internal Displacement, Representative of the Secretary General of the United Nations, 1998, Available at: https://www.unhcr.org/protection/idps/43ce1cff2/ guiding-principles-internal-displacement.html (Accessed on January 20, 2019)
1. International Organization for Migration, Mission to Ukraine, National Monitoring System Report on the Situation of Internally Displaced Persons, June 2018, Available at: https://reliefweb.int/report/ukraine/nationalmonitoring-system-report-situation-internal2. American Convention on Human Rights, ly-displaced-persons-june-2018 (Accessed on January 20, 2019) Article 22, Available at:
Office of the United Nations Hight Com3. https://www.cidh.oas.org/basicos/eng- 2. lish/basic3.american%20convention.htm (Ac- missioner for Human Rights, Report on the human rights situation in Ukraine, 15 July 2014, cessed on January 20, 2019) Available at https://www.ohchr.org/Documents/ Countries/UA/Ukraine_Report_15July2014. pdf (Accessed on January 20, 2019) Case-law: 1. European Court of Human Rights, Timishev v. Russia, 2005, Judgement (Application Secularism and Nativity scenes, an 55762/00). impossible wedding? A legal perspec2. European Court of Human Rights, Tatishvili v. Russia, 2007, Judgement, (Application 1509/02). 3. Inter-American Court of Human Rights, “Mapiripán Massacre” v. Colombia, 2005, Available at: http://www.corteidh.or.cr/docs/ casos/articulos/seriec_134_ing.pdf (Accessed on January 20, 2019)
tive. (Lucas Pinelli)
1. Fédération de la libre pensée de Vendée v. Conseil général de la Vendée, 2017 Administrative Court of Appeal of Nantes 2. Fédération de la libre pensée de Vendée v. Conseil général de la Vendée, 2016, French
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THE GUARDIAN. (2018) Kerch strait
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WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS EDITION: Eleonora-Nicoleta Chiselite Andrei Gabriel Pruna Bence Antonya Răzvan-Alexandru Mărginean Sabina Stefana Hutu
Hordii Rumiantsev Lucas Pinelli Joana Gomes Beirao Claudia Timofte Sarka Silhankova
We would like to extend special thanks to Dora Bidică and Andrei Gongea for their contribution to this edition’s debate, as well as to Mr. George Zlati, Mr. Cătălin S. Rusu and Mr. Tamás Sulyok for answering our questions in the Professional Spotlight rubric.
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