VOL. 5 | ED. 2 January 27, 2018
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LAWYR.IT TEAM Managing Editors* Krisztina Petra Gula (Eötvös Loránd University), Adina Ionescu (Babeș-Bolyai University), Alex-Cătălin Sabău (Babeș-Bolyai University)
Senior Editors Maria Cojocaru (Babeș-Bolyai University), Agnes Horvath (Babeș-Bolyai University), Bernadett Koroknai (Babeș-Bolyai University), Angelika Mavrommati (Aristotle University of Thessaloniki)
Junior Editors Bence Antonya (Babeș-Bolyai University), Oana Bahnean (Babeș-Bolyai University), Patricia Cîmpian (Babeș-Bolyai University), Andrei Gongea (Babeș-Bolyai University), Marisa Adela Pienar (Babeș-Bolyai University), Maria Savuta (Babeș-Bolyai University), Silviu Șoit (Babeș-Bolyai University)
PR Managers Andreea Neșu (Babeș-Bolyai University), Paula Ungureanu (Alexandru Ioan Cuza University), Dora Bidică (Babeș-Bolyai University), Francesca Buta (Babeș-Bolyai University), Roxana Balica (Babeș-Bolyai University)
Legal Researchers Vasiliki Fasoula (University Paris II Panthéon-Assas) - Coordinator Alin-Ionuț Badea (University of Bucharest), Ramona Bărbulescu (University of Bucharest), Georgiana Caramihai (University of Bucharest), Mădălina Enea (Collège juridique francoroumain d’études européennes), Vladimir Griga (Babeș-Bolyai University), Albana Karapanco (Central European University), Dajana Krajinovic (University of Belgrade), Jocelin Tjandra (University of Groningen) *This issue has been put together under the supervision of the former Managing Editors, Alexandra Mureșan & Radu Șomlea. The team has changed shortly after the editorial process has ended. Disclaimer: Given that Lawyr.it is a fully student-run magazine, nothing from its pages should be understood as legal advice of any kind. Any questions about legal assertions, conclusions, sources used or representations made in these pages will be re-directed to the person who made them. If you do want to get in touch with one of the authors, please write to us at firstname.lastname@example.org at any time.
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EDITORS’ NOTE Winds of change With 2018 well upon us, we are all making plans and New Year resolutions, while getting ready for some exciting new experiences. Among these is, for sure, the launch of the Lawyr.it 14th issue, which is aimed to prepare all our readers for kick-starting school/exams/plans-making at full intellectual speed. This brand new issue is not only about the academics; it is also meant to offer a different type of reading experience. Whether you read the magazine in order to gain more useful knowledge or you read it while drinking a hot tea on a chilly afternoon to relax, it will definitely offer you some interesting insights on the subjects presented by our contributors. Furthermore, it will be a fun and challenging read, because it will place you in a position where you will want to know more. Without ruining the surprises that are waiting to be discovered in the following pages, we can tell our readers that this issue covers, as usual, a variety of subjects, from family law and human rights law, to commercial law or trademarks. The Professional Spotlight section features an interview with Dr. Péter Hack, a renowned Hungarian professor at the Eötvös Loránd University, who offer his perspective on the Lex CEU and how such legislation influences academic freedom. The other interview you should not miss is with Adrian Șter, who is a Partner at the Wolf Theiss Bucharest office. If you are a technology geek, then certainly you will enjoy our Question of the Issue and Devil’s Advocate sections, which tackle a subject that has captivated our imaginations for years: the law in the era of technology. From the benefits of technological advances on the development of law to the impact of technology on the future of the judicial systems, all these issues are of high interest for anyone studying or working in the field of law. Furthermore, you should definitely have a look at our Opportunities section, as we have prepared some very interesting ideas for the upcoming months! Last but not least, we are eager to announce that a new generation of editors will continue our work as managing editors of Lawyr.it, who introduce themselves and their vision for Lawyr.it below. Even though our personal Lawyr.it adventure ends with this issue, it has been one of the most special and inspiring journeys we have had. We are very grateful that we have been part of the Lawyr.it team, having worked with so many talented and dedicated people. Alexandra Mureșan & Radu Șomlea Former Co-Managing Editors
Lawyr.it has been (and still is) one of the biggest challenges I have encountered in my life so far. I entered the project because I truly believed in what it has to offer: an opportunity for students to speak up their minds, a platform able to make their voices heard. I fell in love with this idea immediately.
I gradually ascended from Junior, to Senior and now eventually Managing Editor. Each position made me understand the importance and the impact we, as the Lawyr.it team, can have for each legal student. Every article I got the chance to evaluate made me understand how much potential all of us legal students have, and how important our project actually is. So here is the challenge I was talking about in the beginning: to make sure, as a Managing Editor, that this project continues and reaches its full potential, in order for every student who has something to share with the world to be heard. Lawyr.it changed my life, and now it’s my turn, due to my new position, to contribute along with my colleagues at changing other students’ lives and perspectives. Ada Ionescu On behalf of the new Co-Managing Editors 4
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IN THIS EDITION Briefing What’s new with Lawyr.it? (p.8) Opportunities for law students: what’s next (p.10)
Domestic Focus Sanction without Crime: The Involuntary Treatment of Mentally Ill Offenders – A Hungarian Perspective (p.14)
Reflections The Effect of Judicial Elections on the Criminal Procedure (p.20) What is Lex Mercatoria? (p.25)
International Focus From CJEU with Love: U-Turn Family Reunifications (p.30) Public Policy and Accepted Principles of Morality as Absolute Grounds for Refusal of Trademark Protection (in connection with illegal activities) (p.34) Guest Author: The Issue of Constituency, Ethnicity, and Minority Rights: A Permanent Discrimination (p.38)
Professional Spotlight Interview: Adrian Ster, Competition Partner at Wolf Theiss Bucharest (p.44) Interview: Dr. Péter Hack, Associate Professor, Eötvös Loránd University Faculty of Law, Question Hungary (p.54)of the Issue
Question of the Issue How did technological progress influence studying/practising law so far and how will it change it in the future? (p.60)
Devil's Advocate Would a judicial system be better if it were computerised, by replacing judges and lawyers with computers? (p.68) 5
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BRIEFING What’s new with Lawyr.it? Happy New Year from all of us at Lawyr.it! It’s been a long time since our last issue, but it was time we used wisely. New projects, rubrics and opportunities are available to you on our website, while our editorial team has prepared for you an interesting and thought-provoking issue, as they describe to you below. In the past couple of months, the Lawyr.it team has kept busy: we organised the 2nd Lawyr. it Compendium in Cluj with much success, helping law students like you find internships in local law firms. We began a new project on Summer Schools, as part of our commitment to help young lawyers develop their skills and educate themselves further. Finally, our partners at CEU Legal Studies organised a conference about Justice in Big Data with the support of Lawyr.it, with internationally renowned speakers like Future Privacy Forum CEO Jules Polonetsky and the Vicepresident of the Hungarian Data Protection Authority, Szabó Endre Győző. In 2018 we strive to grow, learn and help even more law students with their studies and professional development. New terms are constantly added to our Dictionary, while we are updating the old ones with judicial developments and legal articles. Our Masters Abroad project is slowly moving towards its end: you can find LLMs from universities all over Europe on our website, while our team is working on adding countries such as Germany and the UK to the list. At the same time, new projects take their first steps: we always welcome your articles, contributions, questions and ideas in our email address and social media, but from 16 8
this year on, our team is ready to answer all your questions as part of our new Lawyr.it Advice rubric. We are also committed to informing students of the latest Legal News and developments through our Newsletter and blog with monthly updates. A lot has changed in the Lawyr.it team in the past couple of months, as well: we said goodbye to old friends and welcomed new members, while some of us had the opportunity to go on to new posts and see this project continue to grow. We would like to congratulate Krisztina Petra Gula, Adina Ionescu and AlexCătălin Sabău, our new Co-Managing editors, and Vasiliki Fasoula, our new Legal Research Coordinator. We are committed to continuing our work and building a network of law students and young lawyers throughout Europe, able and willing to grow and learn, but also help and support one another, and we sincerely hope our readers, members and alumni will be on our side in this effort. If you wish to support Lawyr.it and help the project grow, you might be interested in our Patreon account which is up and running from this year. Your contribution matters: you can have a say on how Lawyr.it develops and what projects we follow. We hope you will enjoy our first issue of 2018. We are waiting for your thoughts and comments in our email address and social media. And if you wish to be featured in our next issue all you have to do is send us your article at email@example.com!
By the Editorial team
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NEW rubric from Lawyr.it: Lawyr.it Advice! From February 2018
• Do you want to study law, but are unsure if it is a good choice for you? • Are you already a law student, wondering what you can do to improve your CV and expand your knowledge? Do you have questions on legal writing? • Are you a regular Lawyr.it reader, going through the Masters Abroad rubric and wondering which is the right one for you? The Lawyr.it team is here to help you: starting this January, you can write to us on Facebook, tag us on Twitter or simply email us at firstname.lastname@example.org with any question you might have, and our team, under the guidance of our alumni, Andreea Cucos, will answer all your questions on a brand new rubric, Lawyr.it Advice. Starting February 2018, this rubric will feature not only the answer to your questions, but also tutorials and guidance on multiple topics that affect law students, ranging from help with using citations to mooting tips. Take advantage of the opportunity to consult an international team of law students and young lawyers: email us at email@example.com.
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BRIEFING Opportunities for law students: what's next January January 31, 2018: Traineeships at the European Commission
firstname.lastname@example.org. January 31, 2018: Call for Papers - Adam Mickiewicz University Law Review
The Commission organises twice a year in-service training periods lasting five months for university graduates. This is an amazing opportunity for young professionals to familiarise themselves with the inner workings of the EU and gain professional experience in an international environment. The application period for traineeships from October 2018 to February 2019 will be open from January 4-31, 2018.
The Adam Mickiewicz University Law Review is an international, peer-reviewed scientific journal centred at the Faculty of Law and Administration of Adam Mickiewicz University. The Editorial Board of the journal accepts new proposals for articles written in English, until January 31, 2018. The length of the text must be within the range of 20000-40000 characters, including text and footnotes. The article must also be accompanied by an abstract of 600-1000 characters, written in January 31, 2018: Summer World Bank English with a glossary of keywords and literature Internship notes. Those interested in publishing an article The Bank Internship offers highly motivated and are kindly requested to mail their contributions successful individuals an opportunity to improve to the following address: email@example.com. their skills while working in a diverse environFebruary ment. Interns generally find the experience to be rewarding and interesting. The application for February 15: ATRIP Essay Competition the Summer World Bank Internship will be open 2017 for young researchers in intellectual property law from December 1, 2017 to January 31, 2018. January 31: Call for Papers - 16th Dubrovnik Jean Monnet Seminar ‘Advanced Issues of European Law’
ATRIP, the International Association for the Advancement of Teaching and Research in Intellectual Property, is proud to launch its annual essay competition for young researchers in intellectual property law. Papers may pertain to any topic related to intellectual property law. The author of the paper should be no older than 35 years of age as of December 31, 2017. Papers can be submitted in French of English. The deadline for submissions is February 15.
The 16th Dubrovnik Jean Monnet Seminar ‘Advanced Issues of European Law’ will be held on April 23-27, 2018 in Dubrovnik, Croatia. This edition will focus on the topic “Blame it on Brussels – EU Law and Distributive Effects of Globalisation”. The Seminar entails two parts - lectures by prominent EU law professors and members of the Court of Justice of the EU and research pres- February 15: Call for Papers - Respondentations by PhD candidates and junior academing to Legitimacy Challenges: Opporics. Candidates are invited to apply by submitting tunities and Choices for the European a paper proposal (500 words max) and a CV. AcCourt of Human Rights, Researchers cepted candidates will be invited to publish their Meet the Court papers in the Croatian Yearbook of European Law & Policy. For submission of paper proposals A network of universities working on Human and CVs please contact the organizers at jmsemi- Rights Law organizes a thematic workshop on
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September 21, 2018 at the European Court of Human Rights, Strasbourg, France. The event invites contributions addressing how the ECtHR may respond and does respond by varied means, including: criteria for case selection; Court’s reasoning; pilot judgments; dialogues with domestic judiciaries; margin of appreciation doctrine. The organisers invite abstracts of maximum 400-500 words together with a cover letter. February 18: Call for Papers: Challenges To EU Law And Governance In The Member States The organisers of the conference welcome abstract submissions for the event which will be held on June 8, 2018 at the European University Institute in Florence, Italy under the auspices of the Max Weber Programme. The conference will examine to what extent the EU is being politicised and its law challenged in the Member States. Abstracts should have no more than 400 words and should be sent to EUMSConf@eui.eu by February 18, 2018. Successful applicants will be notified by March 1, 2018. Full drafts of papers are due by May 15, 2018.
On-going opportunities Open: Internship at the Permanent Court of Arbitration The Permanent Court of Arbitration (PCA) offers internship programmes for those interested in gaining experience at an international arbitration institution. Applicants should demonstrate an interest in the fields of international dispute resolution or public international law, but a specialisation in these areas of law is not required. Applications must be submitted at least 4 months in advance for each starting date via e-mail. Open: Traineeships at the European Investment Bank
The European Investment Bank offers summer jobs to students and internships to university graduates. Trainees have the opportunity to carry out a one to five-month traineeship following a defined trainee programme, mainly in areas of finance, audit, economy, engineering and the general secretariat. There is no deadline; the number of traineeships at the Bank are very limited and are designed to meet the needs of the deFebruary 26: “Arbitrator’s Quest” Mock partments, the latter of which also determine the length of the training period. Trial
Konrad & Partners organize the 4th edition of the mock trial “Arbitrators’ Quest” which will take place in Vienna on May 17, 2018. This workshop aims to provide participants with hands-on experience on matters typically arising in international arbitration disputes. The competition is open to students, graduates and young professionals with interest in international arbitration, particularly those from CEE and SEE. In order to apply, students must submit a personal statement for their motivation to participate in the mock trial and internship, a detailed CV and an academic paper on the topic of “Contradicting dispute resolution clauses contained within the same contract”. Applications should be sent via e-mail to firstname.lastname@example.org. The winner will be offered a paid two-month summer internship at Konrad & Partner’s Vienna office, accommodation included.
Open: Traineeship at the Joint Research Centre
The Joint Research Centre (JRC) is a DirectorateGeneral of the European Commission, providing independent science and technology advice to European policy makers. The JRC offers internships to young trainees who wish to acquire scientific work experience, and to put into practice the scientific knowledge they have obtained during their studies or professional careers. Internships are published on the JRC’s online web application system (ESRA), on which candidates can apply directly. More opportunities can be found on www.lawyr.it, in the Opportunities rubric.
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DOMESTIC FOCUS Sanction without Crime: The Involuntary Treatment of Mentally Ill Offenders – A Hungarian Perspective besides recognised punishments. Involuntary treatment is one of these measures, applied in the case of those individuals whose illness makes it impossible for them to recognise their ‘It is hard to fight an criminal act and its potential consequences. enemy who has out- These sanctions are, therefore – at least in theposts in your head’ ory – less severe and more humane in nature (Sally Kempton) when compared to other punishments. 1.Introductory Notes
The way society reacts to and treats mentally ill individuals who Krisztina Gula commit criminal acts has been an example of the coexistence of two vastly different approaches throughout human history. On the one side, we often find spurn, repugnance, even disgust. The most significant problem, however, is the general stigmatisation related to insanity and criminal behaviour going hand in hand. On the other side, we can observe the shaping of another attitude, to treat mental illness more like actual sickness than criminality (Dósa, 1995, p. 327). This implies that the issue has always been the focus of two scientific fields - medicine and law -, and, for a fairly long period of time, the latter had clear dominance. The efforts of Philippe Pinel, a French psychiatrist, had an outstanding role in the gradual change of this mentality in the 17th century. It was also supported by the view of criminal lawyers that besides retribution and deterrence, aims of pedagogical-remedial nature need to be taken into consideration (Kovács, 2013, p. 54-55). The manifestation of this in criminal legal terms was the formation and spreading of measures 14
The reason why it is worth dealing with the topic even today is two-folded. On a general level, it is the marginalisation of the individuals in question, the condemnation, and their defencelessness with regards to the respect and exercise of fundamental rights. On a more specific level, we are forced to face some crucial questions related to the criminal law itself. Where are the boundaries between state paternalism and individual autonomy? To what extent are we entitled to intervene into the core of one’s personality by means of the law to ensure the protection of other members of society? In this article, I intend to introduce the basics of the involuntary treatment of mentally ill offenders from the perspective of substantive criminal law. I will focus on the Hungarian point of view, especially on the rules related to the possible duration of the treatment, its causes, content, and qualms, besides suggesting an alternative solution for the current problem(s). In addition, I am going to bring into the scope of analysis certain international examples from the European Union to refine and support the depicted picture.
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2. The Hungarian Situation ‘Between the idea and the reality, between the motion and the act, falls the shadow’ (T. S. Eliot) 2.1. Theoretical Overlook When analysing the length of involuntary treatment, we can witness two distinct types of regulations. The first regular type of arrangement is that the lawmaker does not define the possible maximum length of the treatment. This is justified by the impossibility of predicting how much time the healing process takes, and the protection of the citizens requires that the state isolates potentially dangerous individuals from the rest of society (Finkey, 1914, p. 451). However, the second set of rules focuses on the principle that the applied measures cannot be more severe than punishments. Therefore, the time frame of the sanction applied in the case of a mentally ill offender shall not exceed that of the equivalent punishment that would be imposed in case of sanity.
that endangers the public shall be subjected to treatment in a mental institution if he cannot be prosecuted due to his mental condition, and there is reason to believe that he will commit a similar act, if the same crime carries a penalty of imprisonment of one or more years. (2) Involuntary treatment in a mental institution shall be terminated if it is deemed devoid of purpose.’
2.2. Hypothesis My view is that the core point of examining the measure should be based on the basic principles and purposes of criminal law. In this regard, the doctrine of the rule of law, its formal aspects, the legal certainty, and most specifically, the nulla poena sine lege certa (no punishment without law) principle must be considered. The latter requires that each sanction in criminal law (both punishments and measures) should be determined in a precise and foreseeable manner (Tóth, 2013, p. 534). It is worth mentioning that there is an opposing view in criminal legal literature, which suggests a restrictive interpretation of the requirement of Both approaches became relevant in different ‘clearly defined law’ to punishments only (Szoeras in the Hungarian legal system. The for- mora, 2013, p. 260). mer Codex of Criminal Law (Law 4/1978) was based on the first view and the duration of the Let us look through this topic with the help treatment could only be dependent on its ne- of another key idea: namely, that the mentally cessity (i.e. until the healing process became ill offender – resulting from the applied meascomplete). In 2010, however, the provision was ure – should not get into a worse situation than modified and an attempt was made to bring the receiving a punishment in case of sanity. Selfsecond line of argumentation into the legal the- evidently, if the offender was punishable, the ory and practice (Law 80/2009). Nevertheless, imposed imprisonment would certainly have in the new Codex of 2012 (Law 100/2012), the to comply with the condition of predictability lawmaker has turned back to – or rather ‘fled (Belovics et al., 2014). back’ to – the shelter of the former ruling. The current regulations are as follows: It is also worth noting that according to the current provisions, it would be possible to keep an ‘Section 78. Involuntary Treatment in a Mental individual in a mental health institution – which Institution: is part of the penal institution system in Hun(1) A person engaged in a violent crime against gary – for the rest of his life without a verdict, the person or in a punishable criminal offence declaring the defendant guilty and prescribing 15
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DOMESTIC FOCUS deprivation of personal liberty for a certain period of time. Culpability, an essential element of the realisation of crime, is conceptually impossible related to a mentally ill person; the verdict must contain acquittal and the measure will be applied because of the mental illness. However, the decision of acquittal shall also include clearcut provisions for the duration when ‘imposing treatment’ on the individual. 3. An Improvement for the Future – A Turning Back to the Past ‘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) 3.1. Domestic Focus When depicting an existing problem or contradiction in the legal system, the question naturally occurs: how is it possible to correct it? We can either suggest a ‘new’ solution or an idea that was present in the regulation of the measure before – for the realisation of which attempts may have been made already. But whichever option we choose, it is necessary to take a closer look at the previous rulings in order to form a well-grounded proposal, which takes into account the specific national and historical features of development. In the present case, due to the modification of the Criminal Code in 2010, which can be viewed as an existent example of a better-established settlement, this has even greater relevance. As mentioned before, the aim of the change was to eliminate the defect of the criminal code regarding the undetermined sanction and the related violation of legal certainty. According to that, the treatment could not last longer than the maximum term the criminal offence carried according to the law. Subsequently, if the 16
treatment is still necessary after this term, the person subjected to involuntary treatment shall be transferred to a civil psychiatric institution along with the insurance of required steps for security (Law 80/2009). As a result, this ruling cannot be considered an explicit opposition to the provisions of the current codex; quite the opposite. It can be seen as a golden mean between the two edges: the undefined duration and the exact determination of the possible length. Based on that, only the upper limit of the time frame is fixed, within which the individual can be kept in a correctional mental health institution (i.e. within the penal system). Apart from this, the duration of the treatment was (and would still be) dependent on the ‘necessity criteria’, which means that if the patient is deemed recovered after an examination by two medical experts, the treatment must be terminated. This regulation could fulfil the requirement of the protection of society on the one hand, and could better comply with the prerequisite of legal certainty on the other. 3.2. International Focus When looking through certain European examples, two issues occur inevitably. One is obviously the length of the treatment, while the other, closely connected, is the criteria on which the measure can be applied (i.e. how restrictive or permissive its elements are). A more general issue, however, is about integrating the rules of involuntary treatment into the body of criminal law or administrative law. Naturally, the regulations of the different States depict a quite colourful, patchwork-like picture. We can see that the proposed solution regarding duration in the Hungarian situation is most akin to the present rulings of the Spanish and the Portuguese criminal codes (Placement and Treatment of Mentally Ill Offenders in the Euro-
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pean Union, 2005, p. 197-205). However, when it comes to both the term of the measure and the of criteria, we find that the Austrian and the German approach are closest to the currently existent Hungarian model (Deutsches Strafgesetzbuch Section 63-64, Österreichisches Strafgesetzbuch Section 20-21, 63).
tion of mental institutions as prison substitutes – which is also in issue in Hungary – could significantly be reduced. 4. Conclusion
‘In matters of justice, there is no difference between large and small problems, for issues conThe conditions required are complex and re- cerning the treatment of people are all the same’ strictive, therefore it is only possible to apply (Albert Einstein) the sanction in case of the most severe offences. We shall acknowledge that this is justified by Generally speaking, it can be stated that after the ultima ratio (final means) role and nature observing some European models and taking a of criminal law. In these terms, criminal legal closer look at the Hungarian situation, we can provisions shall only come into focus when no witness numerous solutions to the placement other sphere of law has the capacity to settle an of involuntary treatment in different spheres of issue comprehensively. law, the underlying system of conditions, and Nevertheless, there are instances, such as the the duration of the sanction. As long as the criFrench model, which represents a different teria are as restrictive as in Hungary, which sugviewpoint and regulate the involuntary treat- gests that only the acts of the most dangerous ment in the sphere of administrative law (Salize individuals will be sanctioned, the integration & Dressing, 2004, p. 385). This can be support- of the relevant rules into criminal law seems to ed by the idea that if insanity is, in fact, an ill- be appropriate, also with regards to the aforeness, then the offender’s criminal act can only mentioned ultima ratio principle. be considered its manifestation in the outside world or, in other words, its symptoms, and the However, this also requires the basic principles individual shall not be held responsible for that of this branch of law, including the criteria of by means of a criminal sanction (Fehér, 1989, p. clearly defined regulations, to be taken into 633). We cannot forget about the fact that, how- consideration. Therefore, it seems to be more ever, the placement, among the rules of sub- rational and justifiable to gear the length of the stantive criminal law – and criminal procedural treatment to the maximum term of the deprivalaw –, means more guarantees and safeguard in tion of liberty prescribed in the criminal code terms of the protection of the defendants’ fun- for the underlying criminal offence. Nonethedamental rights (Vokó – Lajtár, 1997, p. 18-21). less, when it comes to the implementation of In addition, in some countries a ‘mixed model’ the sanction, it might be worth considering has been introduced, combining the previous placing the relevant institutions – along with two approaches; for example the United King- the proper security steps and still as separate dom (Green, 2010, p. 4). In this case, the ap- entities – into the sanitary organisation system plication of the measure is based on the rules of in order to decrease their potential prison-subcriminal (procedural) law, while the execution stitute nature. happens according to sanitary provisions fall- ing within the scope of the administrative law. By Krisztina Petra Gula This may be relevant because this way the func- Eötvös Loránd University, Hungary 17
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REFLECTIONS The Effect of Judicial Elections on the Criminal Procedure The method for selecting members of the bench by judicial elections may seem unfounded and unnecessary compared to the European practices, but it bears paramount significance in the United States, as alMáté Hodula most 90 percent of all state judges face voters at least once during their career (Streb, 2007, p. 7). Although the debate between advocates and opponents of the judicial elections emphasises the constitutional and financial approaches, the aim of this essay is to fathom the effect of the elective methods on the criminal justice system. After analysing the origins and the different methods of these elections, the following parts focus on the effects on the severity of the sentences and the appellate decisions. 1. The System of Judicial Elections There are five methods for judicial selection, out of which three are based on election. These are the partisan, nonpartisan and retention elections. The partisan elections show no difference to electing the members of Congress as the ballot contains the name of the candidates and the designated political party affiliation (Streb, 2007, p. 7).
where political affiliation is not shown on the ballot. Michigan and Ohio use a combination of these two, as the judges are appointed by political parties, but their affiliation is not displayed (Hogan, 2006, p. 142). The retention system is a merge between the appointment and the elective method – the governor appoints the judge (with or without a merit system) for a given period of time; after the commission expires, the voters decide whether the judge should remain for a new period. The judge does not run against other opponents, the question is a simple ‘yes’ or ‘no’. The majority of the votes should be supportive in order that the judge can begin a new period (Streb, 2007, p. 7). 2. The Role of Criminal Cases in the Campaigns Since the average voter does not have the time or the intention to examine complex issues and cases, the judges have to advertise themselves just like any candidate who participates in the elections. To grab their voters’ attention the candidates like to emphasize their role in the punishment of criminals.
For instance, a campaign ad supporting Alabama judge Claud Neilson stated that the candidate “looked into the eyes of murderers and sentenced them to death” (Dow et al. 2002, pg. 84-85). These seem even more sinister, considering Alabama is infamous for the highest number of executions per capita. From 1977 to 2013, 457 death sentences were The majority of the states which choose the carried out in Alabama, which means that elective method use the nonpartisan system, 30 20
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0.956 inmates were executed for every 10.000 residents. (The second state is Oklahoma, with 0.823, and then the rates drop noticeably. The third state is Mississippi, with 0.586.) (Death Penalty Information Center, 2017) Not only do these ads tend to advertise the toughness of a candidate, but they aim to attack other competitors on their ‘softness’ on crime. During the 2014 retention campaign of Judge Lloyd Karmeier of the Illinois Supreme Court Justice, the ad against him stated that “in one case, Judge Lloyd Karmeier gave easy bail to a woman later found guilty of murdering her 4-year-old stepson” and “gave probation instead of prison to a man who sexually assaulted a child” (Berry, 2015, p. 4). Berry quotes another case as well: in the 2012, Supreme Court election in Kentucky, Will Scott attacked his competitor, Janet Stumbo, with an ad including the following statements: “former Justice Janet Stumbo sided with criminals 50 percent of the time. For fairness, re-elect Will T. Scott, Supreme Court justice” (Scott, W. T., 2012). Moreover, contenders who used to represent defendants as lawyers might be criticised for their previous acts. In 2012, Bridget McCormack participated in the elections for the Michigan High Court. The Judicial Crisis Network sponsored an ad which examined her work when she used to represent prisoners held at Guantanamo Bay (Berry, 2015, p. 4). In the ad, a mother, Teri Johnson, whose son was killed in action during his service in Afghanistan, blames McCormack for her work as a lawyer. Johnson narrates the ad with the following words: “my son’s a hero and fought to protect us. Bridget McCormack volunteered to help a terrorist. How could you?” (Judicial Crisis Network, 2012). Furthermore, these ads also simplify complex
legal issues and propagate lies among the voters. For instance, Illinois Supreme Court Justice Tom Kilbride faced severe attacks from his critic group called the Illinois Civil Justice League, during the retention elections. In one of the ads, three shadowed-faced actors standing in the infamous orange prison uniform presented their crimes (‘I was convicted of stabbing the victim with a kitchen knife 24 times,’ […] ‘I was convicted of shooting my ex-girlfriend in the face and murdering her in front of our child.’ […] ‘Sexual assault on a mom and her 10-year-old daughter, then I slashed their throats.’) Afterwards, the ad concludes the decision of Justice Kilbride: “On appeal, Justice Thomas Kilbride sided with us over law enforcement and our victims. […] Vote no on retention of Supreme Court Judge Thomas Kilbride”. When asked by NPR, Kilbride addressed these ads as “They’re horrific. I think they’re vile”. Also, he added that the only things he examined were procedural issues, and they did not result in lighter sentences (Johnson, 2010). Albeit these are individual cases, data from various researches show a connection between TV ads and the votes of a justice in favor of a defendant. Independent researchers from Emory University School of Law examined almost 3100 criminal cases from state supreme courts, and their findings were merged with the results of the Brennan Center of Justice, which studied TV ads of judicial elections. The outcome revealed that “the more TV ads aired during State Supreme Court Judicial elections in the state, the less likely justices are to vote in favor of criminal defendants” (Shepherd & Kang, 2014). Furthermore, those who decide to run in a judicial election often find themselves in a need for sponsors to aid them with the high costs 21
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REFLECTIONS of campaigning. Although the deep examination of the financial element in the elections is beyond the aim of this essay, it is worth noting that these elections also undermine the trust of the citizens in the judiciary branch of power. Surveys found that 70 percent of the US citizens believe that campaign contributions influence the decision of the justices (Skaggs, 2010). The harmful effect of these statistics stretches far; Justice Sandra Day O’Connor addressed this issue with the following words: “this crisis of confidence in the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold” (Foreword of Hall, 2010).
tions every four years. As they stated in their report, “essentially the same defendant (based on observable characteristics), having committed the same crime, facing the same judge, receives 10 percent more time in prison if he is sentenced at the end of the judge’s political cycle rather than the beginning” (Bendejó & Yuchtman, 2010, p. 18).
The link between the elections and the sentencing practice is connected to the campaign ads. If a judge decides to run for office in a later election, he or she has to keep in mind that their sentencing may be a target for other contenders. Upcoming elections influence both the length of the sentences and the less frequent votes in favor of defendants during an appeal.
3.2 Appellate Decisions
These results conclude that this behavior affects the rule of law and the requirement of computability in obvious ways. John Oliver, host of the talk show Last Week Tonight With John Oliver addressed this issue with the following words: “That’s terrifying. ‘Cause you shouldn’t be sitting in a prison going «How did you get fifteen months for public urina3. The Effects of the Elections on The Sen- tion?», «Well, you know, it was October, in an tencing Practice election year…» (season two, episode three).
3.1 The Punitive Sentences A research by Huber & Gordon, in 2002, examining more than 22,000 sentences for aggravated assault, rape, and robbery, concluded that “sentences for these crimes are significantly longer the closer the sentencing judge is to standing for reelection” (Berry, 2015, p. 13). A similar result was found by Carlos Bendejó and Noam Yucthman (2010); they examined Washington Superior Courts, where the judges contend in nonpartisan elec30 22
Shepherd and Kang also examined the fear of future attacks, in their 2014 research. They defined a vote in favor of the defendant during an appeal as “any vote that improves the defendant’s position – whether it is overturning any part of a criminal conviction or reducing a defendant’s sentence”. First of all, even without the ads, the likelihood of voting in favor of the defendant vary based on the political party; As a baseline, Republican justices are, on average, slightly less likely to vote in favor of defendants than other justices. (As their findings state, Republican judges vote in favor 27 percent of the cases contrary to the 31 percent of the Democrats.) Furthermore, just as there is a relation between the amount of campaign TV ads and the length of the sentences, a similar link can be found between the likelihood of the votes ‘in favor’ and the ads. For instance, 17,000 ads cause a
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REFLECTIONS 9,5 percent decrease of the ‘in favor’ votes for the Republican judges and 7,5 percent for the Democrat ones. The independent judges are less likely to be affected by the ads, as the same number of ads resulted only in a 2,5 percent decrease (Shepherd & Kang, 2014). 3.3 Do Election Methods Matter? As summarised in the second point, judicial election methods vary between states and even between courts. Gordon and Huber tackled this issue in 2007, when they studied the effect of different election methods in the state of Kansas. The election system of Kansas has partisan and retention elections. During the primary, in fourteen districts where roughly 42% of residents of Kansas lives, holding partisan elections (Gordon & Huber, 2007, p. 5), the district court judges participate representing their party. The candidate with the most votes may advance to the general elections, while appellate judges and appointed district court judges participate in the retention elections.
other hand, 14 years passed since the sentencing practice examined in the cited study and it is worth noting that retention elections became more and more politicized in the recent years (Berry, 2010, p. 9). Hence, an elaborate study is required both in Kansas to measure the changes, and across the various states. 4. Conclusion Although the essay might seem one-sided, as it lacks the advantages of the judicial elections, the aim was to emphasize the effects on the criminal procedures as analysing this vast subject in a whole system would exceed the current limits, hence complete books were written on the topic. To summarise the previous paragraphs, the aim of the essay was to shed light on one of the drawbacks of the controversial method of judicial elections. After summarising the various versions of the elections, the essay listed the negative effects on the sentencing practice, albeit further research may be needed in some aspects. As for the future, the author hopes that the system will be changed, or at least legislatorial steps would be taken for the sake of securing legal principles if the elective method is to be upheld.
Gordon and Huber studied 18,139 sentences from 1997 to 2003, where 31% resulted in prison sentences, ranging up to 3,237 months, with a median of 32 months. Comparing the results from the partisan and the retention districts, the study concludes that “35% of sentences handed down in the competitive By Máté Hodula districts include prison terms, compared with Eötvös Loránd University, Hungary 27% in the retention jurisdictions. Likewise, the median non-zero prison sentence is higher in the partisan than retention districts – 33 versus 31 months” (Gordon and Huber, 2007, p. 10). Concluding this issue, the results show that partisan elections induce more severe sentences than the retention method. On the 30 24
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What is Lex Mercatoria? Introduction Lex mercatoria is generally defined as the body of rules of international commerce which have been developed by the customs in the field of commerce and affirmed by the national courts. This definition was also mentioned in Monika Martišková the argumentation of the International Court of Arbitration in Paris in the final decision of case number 9246 from March 8, 1996.
ally ius gentium in fact disappeared in practice. This was caused by the changes which occurred during those times in Rome´s history when all the free people in Rome gained the citizenship and it was no more as unique as before. However according to the law it remained a part of the legal institutions of ius civile. (Rozehnalová, 1994, p.13-14)
Ius gentium implied flexible rights, adaptable business rules and customs. After the fall of the Roman Empire, the states were able to create their own rules relating to the principle of territoriality. This principle means that each state has its own law which every person located on its territory has to obey according to the principle of sovereignty (Prusák, 1997, p.5859). The Law of the Roman Empire, along with The term lex mercatoria comes from Latin and commercial practice, was later reproduced by means „merchant law“. This term had been the Byzantine Empire and some Arabic counused during the medieval times by merchants tries. in Europe to name the body of commercial There were many factors which influenced lex law. mercatoria in the medieval times: the ending The history and development of lex merca- influence of the Arabic Empire in the Meditertoria ranean, the blossoming of the port cities, cruThe formation of lex mercatoria is deeply sades, the general revival of trade in Europe, rooted in the ancient times. It is associated and the migration of the merchants who were with the oversea trade which was conducted using the trade rights and commercial pracmainly in the area of Greece, Egypt, Phoeni- tices of their own territory, and the creation of a new social class – the middle class. cia, and especially Rome. Rome is the place where a separated law, called ius gentium, was created. The main reason of the creation of this law was the expansion of the Roman Empire and the fact that the existed law could not cover anymore all the newly created legal relationships, especially in the area of trade. Initially, it was a law which was applied to the legal relationships between the foreigners and the Roman citizens, later on just among the Roman citizens, and gradu-
The medieval feudal law did not govern the situations where some problems associated with international trade could occur; it were the gild institutions and the merchants who gave rise to a special law of international trade because they needed to ensure their trade. Lex mercatoria consisted of the business practices agreed by traders in a particular area. During 12th and 13th century, the establish25
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ment of the special courts in the areas where markets were held to solve trade disputes and apply lex mercatoria took place in France, Italy, and England. (RozehnalovĂĄ, 1994, p.198). These arbitrations were provided by the most respected persons from among the traders to ensure that each case would be understood and judged primarily by the known customs and traditions, thus lex mercatoria was applied in a specific territory. It is a consequence of the fact that the cases were analysed by respected persons from the countries mentioned above. In the case of identified defaults and violations of law, there were imposed monetary fines. The merchants usually payed a fine, because they wanted to maintain their good reputation, which was at that time of the utmost importance. Otherwise, they would loose their trade partners or - which was worse - they could be excluded from the community which protected them. (Mangels, 1999) Lex mercatoria was a special area of law governing only a part of the legal system and a specific type of relationships, mainly the trade relationships. It was different from the feudal law or canonic law, which were more general. The modern times
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The negative impact on trade and lex mercatoria by the passing of time was influenced by the export promotion, minimalisation of the import, and the ban on determining the rules of trade. In the modern times, there came the submission to the absolutistic rules and incorporation of lex mercatoria into the national law of the states. Lex mercatoria was from those times considered as a part of the international law, while the standards were superior to the national legislation. The modern merchant law is different from the law of the codification, but similar to what prevailed earlier.
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Despite the existence of many codifications, one of the most remarkable kinds of code is the Uniform Commercial Code (hereinafter „UCC“), which is however not codificated in a European sense. „In its Section 1-103, the UCC makes it very clear that it promotes not only custom but also the common law, equity and the law merchant besides it“ (Dalhuisen, 2012). The sources of the merchant law are created by the practice of courts or international organizations, not as being the subject of the legislative activity of a state. This law has been created by the means of the legal standards different from the national law, as well as from the international public law.
had its seat in Paris since 1923, when it was established. It is important to mark the reasons why the seat of arbitration matters. „A seat of arbitration must respond to the needs of the business community and the users of international arbitration.“ (Paris Association webpage, Paris International arbitration). For being ensured that Paris was the right choice, we can use the following arguments. Firstly, it is a seat that is a signatory of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Secondly, it is a seat whose laws favour arbitration and whose courts actively support, rather than interfere with, the arbitral process. It is also a seat that respects the parties’ intentions regarding their choice of procedure and applicable law. Finally, it is a seat that has the required professional and structural resources for a rapid, legally secure and efficient process. (Paris Association webpage, Paris International arbitration).
The modern lex mercatoria is „the law immanent in principle, created by the international market place and its participants itself, where necessary supported by treaty law (like the Vienna Convention on the International Sale of Goods), and in practice formed and operating much like public international law with its dif- Conclusion ferent sources, as may be shown particularly in its foreign investment law branch.“ (Dalhu- The merchant law is today more pragmatic than before. It moves from case to case on the isen, 2012). basis of practical needs, even though, nowaSome words about the International Court days, it is much more governed by the legal rules and principles than before. „Established of Arbitration in Paris principles and practices freely operate besides All along the history, a number of special any statutory or treaty texts and may prevail courts dealing with the international com- over it in appropriate cases.“ (Dalhuisen, 2012) mercial law cases by using the merchant law have been created. The International Court Lex mercatoria still plays an important role of Arbitration as a part of the International because good faith is not always enough. Chamber of Commerce (hereinafter „ICC“) is Sometimes, traders should keep in mind that the mostly recognised court of its kind in the a trading relationship based simply on trust world nowadays. The ICC is a global interna- might be insufficient or might not offer an adtional chamber of commerce. It is an organiza- equate protection in comparison with the ention that promotes and supports global trade. acted law that is enforceable. As a global business organization formed by By Monika Martišková its member states, it facilitates the development of business affairs internationally. The Trnava University, Slovak Republic ICC International Court of Arbitration has 27
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INTERNATIONAL FOCUS From CJEU with Love: U-Turn Family Reunifications Law touches upon many aspects of people’s lives, even those unexpected from a layman’s perspective. One such area is family reunification law, whose importance is growing along with the increasing rate of international migration. From the EuroIvona Vidovic pean Union law perspective, falling in love with a person of another nationality creates numerous legal challenges, while things can get even more complicated if one partner is an EU citizen and the other third country national. How do they arrange their relationship? Where can they live? What will be the status of their children? EU family reunification framework Even though these questions hardly seem to be of legal nature, one might find some answers in the jurisprudence of the Court of Justice of European Union (hereinafter: CJEU or Court) on interpretation of the Treaty on the Functioning of the European Union (hereinafter: TFEU) and the Citizenship Directive 2008 (hereinafter: Directive). According to Article 21 of the TFEU, EU citizens enjoy the right of free movement within the Member States, while Article 5 of the Citizenship Directive provides that all EU citizens and their 30
family members residing in the EU on the basis of the Directive enjoy treatment equal to nationals covered by the Treaty, even if they would be nationals of a third country. However, the Directive only applies to EU citizens that have moved or resided in a Member State other than the one of which they are nationals and family members who accompany or join them. As contemplated by Dagan (2014), the consequence of such restricted scope of the Directive is that, unless an EU citizen has moved to another Member State to work and reside there for a certain period of time, he or she is not afforded with the “EU family permit” protective shield of the Directive. If such citizen would like to bring a third country national spouse, children or any other family member to live with him or her in the Member State, the immigrating family members would have to meet the domestic law criteria to be granted residence permit or visa to lawfully stay in the country. What follows is that two EU citizens living in the same Member State are treated differently in exercising their rights just because one has crossed an inter-state border in order to work in another Member State, while the other has not. Blind eye to reverse discrimination Despite the fact that it feels unfair, such reverse discrimination is permitted under EU law on the grounds that ‘purely internal situations’ with no inter-state el-
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ement do not fall within CJEU’s jurisdiction. The Court upheld such standpoint in R v IAT and Surinder Singh ex parte Secretary of Home Department, 1992 and Shirley McCarthy v Secretary of State for the Home Department, 2011 decisions, where it clarified what is meant by ‘EU citizen moving to or residing’ in a Member State other than the one of his nationality. The Singh decision established the socalled ‘Surinder Singh rule’, which protects the right of a third country national to reside in the Member State of his or hers EU spouse, if the couple has previously obtained an EU family permit through exercise of the right of free movement and work in another Member State. The McCarthy case further defined the ‘movement’ requirement necessary to invoke the ‘Surinder Singh rule’. In that case, CJEU rejected to interpret the Directive to encompass situations where an individual with two Member States nationalities applies to have its spouse join her under EU family permit on the grounds of having an additional nationality of a Member State she is not residing in. Since this was not deemed to be an exercise of the right to free movement, the Court impliedly stated that an EU citizen wishing to invoke protection under the Directive has to physically cross the inter-state border for work purposes during reasonable periods of time, in order to remove the ‘purely internal situation’ label from its case. While in the Singh case the time span of two years of work in another Member State was deemed necessary
to invoke EU law protection, in the subsequent Secretary of State for the Home Department v. Hacene Akrich, 2003 case six months was sufficient to make an entry claim trough the Surinder Singh route. Valcke (2013) claims that such developments moved some Member States (namely the UK) to change national immigration rules and require citizens using the Surinder Sing route to prove that they have ‘transferred the centre of their life’ to another Member State while working there. Such legislative action, ignoring the duration of the applicant’s work and stay, evidenced the ongoing trend of harshening the national immigration requirements behind the curtains of the EU family reunification rules. Inconsistency in CJEU rulings Contrary to the strict view of the Court on what amounts to an exercise of free movement right, decisions in Carlos Garcia Avello v Belgian State, 2003 and Gerardo Ruiz Zambrano v Office national de l’emploi, 2011 display lighter approach to the same issue. There CJEU went as far as to rule on situations involving no inter-state element, broadening the ratione materiae scope of the Directive by overruling the Member State’s law on national registry in favor of children with dual citizenship and, more strikingly, granting EU citizenship rights to third country nationals whose EU children never crossed the border. Justifying the decisions by the deterrence doctrine, which implies that family reunification obstacles could deter EU citizens from moving and thus impede the functioning of the internal market, as well as 31
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INTERNATIONAL FOCUS stating that the children would otherwise be ‘deprived of the genuine enjoyment of the substance of rights under EU citizenship’, CJEU introduced an element of unpredictability in its Directive-related case law. The discrepancy was further deepened by the Murat Dereci and Other v Bundesministerium fűr Inneres, 2011 decision, where the Court held that adult claimants in various situations involving EU citizens as family members were not allowed to use the EU family reunification route. The Court reasoned that the enjoyment of EU citizens’ rights in the
particular case could be exercised by simply moving to another Member State to be with family members, instead of exercising their rights from their home Member States. The decision was heavily criticized: Guild (2011) elaborates that Dereci judgement in fact indirectly imposes the requirement for EU citizens to move in order to exercise their EU family reunification rights. Moreover, the Court went even further by stating that it would consider an ECHR Article 8 family life claim only in situations where families cannot move to another Member State and exercise
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their rights ‘in the usual way’, practically example: as reported by Fraser (2017), the forcing them to do so. country has recently raised the minimum income rule for British citizens to bring Two faces of the CJEU family reunificanon-EEA spouses to £18,600, rendering tion route almost 40% of UK workers unable to unite CJEU is obviously applying double stand- with their families. This and other similar ards when ruling on what represents a immigration policies, alongside current purely internal situation and how far the case law of the CJEU, send EU citizens a EU family reunification rules can go. The clear message: Falling in love is great! If danger lying behind such an approach you can afford it. is evidenced by the rise of restrictive amendments to Member States national immigration laws, whose conditions for By Ivona Vidovic family permits, applicable in the absence Central European University, Hungary of an inter-state element, are becoming increasingly harsh. UK is maybe the best
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INTERNATIONAL FOCUS Public Policy and Accepted Principles of Morality as Absolute Grounds for Refusal of Trademark Protection (in connection with illegal activities) Introduction
in the article 7 Regulation (EU) 2015/2424 of the European Parliament and of the Council of The aim of this article 16 December 2015, the list is exhaustive – the is to analyze one of the possible existence is researched by examiners absolute grounds for ex officio. refusal of trademark protection, specifically For better understanding will be further anapublic policy and ac- lyzed public policy and accepted principles of cepted principles of morality – the meaning of these terms go along morality in connection with the point of view of a so-called reasonable with illegal activities. person with normal levels of sensitivity and The article is focused on tolerance. It is necessary to research the overall Šárka Šilhánková decision-making prac- impression of signs, not the outer factors. tice of the European Union Intellectual Prop1. Public policy and accepted principles of erty Office (further as “EUIPO” only) with an morality insight into decision-making practice of Industrial Property Office in the Czech Republic. EU is a mixture of ethnicities, religions and cultures. It is government’s responsibility to The establishment of the European Commuprotect citizens – EUIPO has the responsibility nity, latter European Union (further as “EU” to protect citizens of the Member States from only) whose target was to create a single marsigns which are considered contrary to public ket, obviously let to the creation of institute of policy or accepted principles of morality. At Community trademark, latter EU trademark the same time people must know that there are (further as “EU trademark” only). EU traderules which have to be adhered. mark protects trademark registered within the EU territory. At the same time, no one should Under the EUIPO Examiner’s Guidelines pubomit the existence of national trademark law, lic policy is defined as the body of all legal rules which was here before the EU was established that are necessary for a functioning of a demand after the establishment is strongly influ- ocratic society and the state of law. Accepted enced by the implementation of directives. principles of morality are defined as rules that are absolutely necessary for the proper funcPrinciple of territoriality therefore still exists; a tioning of a society. Both are territorial connew regional trademark territory was founded. cepts that may evolve overtime. Trademarks The EU institution which deals with EU tradeto be contrary to public policy and accepted mark protection (but not only) is called EUIprinciples of morality must address a real danPO with the seat in Spain, Alicante. ger and not just any violation of rules (EUIPO, It is understandable that all signs cannot be reg- 2017). istered as trademarks. Exceptions can be found 34
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The trademark protection cannot be granted notwithstanding that the grounds of non-registrability (signs which are contrary to public policy or accepted principles of morality) are obtained in only part of the EU (Art. 7 par. 2 Regulation (EU) 2015/2424).
names of unconstitutional parties or organizations which are prohibited in Germany and in Austria and symbols of totalitarianism.
• Pejorative, discriminatory, indecent and vulgar signs, if so-called reasonable person with normal levels of sensitivity and tolerance EUIPO and Czech Intellectual Property Office would feel that. do not distinguish between these two princi2. Trademarks contrary to public policy and ples, the final decision contains only the term accepted principles of morality in connec“contrary to public policy or accepted princition with illegal activities ples of morality”. The conflict is based on objective criteria, while the perception of relevant The scale of illegal activities is large. It is impublic is essential but not fundament as with possible to present the exhaustive list of illegal “contrary to accepted principles of morality” activities, which are excluded from registra(WEISS, 2016). tion; nevertheless it is possible to present the non-exhaustive list of illegal activities which EUIPO in guidelines underlines, that notwithdescribes not just the general overview. The standing the perception of relevant public, conflict according to illegal activities consist sings which are considered contrary to public of conflict with public policy (promotion of policy are usually: violence, terrorism, drug dealing) and conflict • Trademarks that contradict the basic princi- with accepted principles of morality (disgrace). ples and fundamental values of the European 3. EUIPO decision-making practice political and social order and the universal values on which the EU is founded. 3.1 Although the Second World War ended more than seventy years ago, this dramatic • Trademarks which consist of names of inhistory is still very emotional for most of the dividuals or groups connected with terrorism society. The public needs protection from the (according to Common Position 2001/931/ memories of the past connected with Nazi reCFSP adopted by the Council of the EU). gime. • Furthermore contrary to public policy are As for example, the trademark application usually considered dishonest signs or sings “Hitler” was rejected (EUIPO, 2015). Rejectinstigating racial, political or religious intolered was also the application “Panzer Corps” ance, sings which promote violence, racisms, (armed forces of Nazi Germany) which concrimes etc. In some cases contrary to public sisted of the eagle on the black-white-red color policy can be considered signs with the names scheme and the text was written in blackletter of state officials, political parties and state institypeface (German) Fraktur (EUIPO, 2012). tutions (Úřad průmyslového vlastnictví, 2016). For the same reasons was rejected the tradeContrary to accepted principles of morality are mark application “Luftwaffe” (air forces of Nazi Germany) (EUIPO, 2008). Fact, that these apusually: plications did not incorporate swastika, is ab• Trademarks which consist of the symbols and solutely irrelevant, as they incorporated other 35
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INTERNATIONAL FOCUS Aqsa Martyrs’ Brigades, a secular coalition of Palestinian armed groups in the West Bank) 3.2 According to Common Position 2001/931/ (EUIPO, 2004). CFSP adopted by the Council of the EU, trademarks which consist of names of individuals or At the beginning of 2015 a terrorist attack to groups connected with terrorism are rejected. the French satirical newspaper Charlie Hebdo It is strictly forbidden to promote activities as- was committed in Paris. The phrase “JE SUIS sociated with terrorism. In the view of this fact CHARLIE” or “PRAY FOR PARIS” became the trademark application ”BIN LADEN” was common slogans of support, mainly in social rejected (EUIPO, 2004). The argumentation media. EUIPO adopted a priori an attitude that Bin Laden is a common Arabian name and of high probability of non- registrability of name of the applicant as well was found irrel- these types of trademark applications (EUIPO, evant, as the public would perceive this trade- 2015). mark as a promotion of terroristic activities 3.3 Applicants sought trademark protection (the name of the former leader of Al-Qaeda). for signs associated with mafia. Unfortunately Nevertheless, the trademarks “POT” and the decision-making practice in these cases is “DADA” were registered, although they could disunited. The trademark application “BOSS associate the names of Pol Pot, leader of Khmer OF MAFIA” was rejected, as mafia is dangerous Rouge and Idi Amin Dada, former Ugandan organized group dealing with illegal activities president whose presidency is characterized by (EUIPO, 2016). Although the trademark was human rights abuses, political repression, ex- supposed to be registered for computer game trajudicial killings, corruption etc. The reason products, the lenient attitude was not adopted. of registration may be the fact that trademarks Et vice versa aforesaid, the trademark applicaconsist of part of the names only, so the assotion “MAFIA II” was registered for computer ciation is not evident (EUIPO 1996, EUIPO, games products (EUIPO, 2012). EUIPO dis2000). similarly stated that public would not perceive The trademark application “eta” was submit- the world mafia as an organized crime, since ted by the Czech company of the same name nowadays “mafia” is used in everyday conver(EUIPO, 2009). Although in the Czech Repub- sation not always connected with criminal law. lic this trademark does not associate terroristic 4. Examples of Czech decision-making pracactivities, in another parts of EU, especially in tice Spain it would, as ETA is an acronym for Euskadi Ta Askatasuna, the formerly armed leftist The Czech decision-making practice, if conBasque nationalist and separatist organization cern public policy and accepted principles of in the Basque Country. For the same reasons morality as absolute grounds for refusal of were rejected trademark applications “HAI- trademark protection in connection with illeKA” (new Basque independence group) (EUI- gal activities is usually associated with narcotPO, 2013) “IRA” (The Irish Republican Army) ics. (EUIPO, 2010) and “AL AQSA Cola” (similar sign which could be associated with the al- Trademark application “TRÁVA 20 CIGARET S FILTREM” (translated as “WEED 20 FILTER notorious symbols of Nazi Germany.
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CIGARETTES”) sought the trademark protection for tobacco products (Úřad průmyslového vlastnictví, 2008). The sing consisted of the world “tráva” translated as a slang world for marijuana and of colorful spiral. The overall impression therefore obviously reminded not cigarettes but narcotics. The applicant argument of the advertising technique exaggeration was found irrelevant. Et vice versa was registered trademark “Extáze” (translated as “Ecstasy”) (Úřad průmyslového vlastnictví, 2005). It was found that public would not associate the trademark with narcotics, as ecstasy is a common world perceived also as religious or emotional ecstasy.
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Conclusion Although the Regulation (EU) 2015/2424 does not provide the definition of public policy or accepted principles of morality, these principles were defined in EUIPO Guidelines. Nevertheless, only the decision-making practice can provide the full understanding. Trademarks can be considered contrary to public policy or accepted principles of morality due to many reasons, this article achieved to analyze the reason connected with illegal activities. So far EUIPO has ruled that applications due to this reason will be rejected, if they consist of symbols reminding Nazi regime, terrorism and mafia. Industrial Property Office in the Czech Republic beside these deals the most with trademark applications associated with narcotics. By Šárka Šilhánková Masaryk University, Brno, Czech Republic
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GUEST AUTHOR The Issue of Constituency, Ethnicity, and Minority Rights: A Permanent Discrimination but constantly denied. The European Court for Human Rights ruled in favour of Mr. Pilav, whose request to be a candidate for the Presidency, as a Bosnian from the Republic of Srpska, was denied. The scope of Dayton Peace Agreement included transitional political arrangements with the aim of postconflict development. Short-term solutions became a long-term legal nightmare; a rare precedent was adopted, whereby a peace agreement was integrated into a domestic legislature as the supreme law. Ineffective and non-functional legal protection is also seen through the status of national minorities. According to the report of the Organization for Security and Cooperation in Europe, The Constitution of Bosnia and Herzegovina there are currently 17 national minorities declared the following: Serbs, Bosniaks, and present in Bosnia and Herzegovina (The Croats are three constituent nations living on OSCE…, p. 1). the territory of a sovereign and independent state. When it comes to the people of Repub- The state is therefore obliged to guarantee the lic of Srpska, the Serbs are the only ones who protective measures for every citizen equally. can elect or be elected for the Presidency of In another landmark case of Sejdic and Finci Bosnia and Herzegovina. This directly denies v. Bosnia and Herzegovina, which confirmed the political rights of the Bosnians and Cro- the existence of discrimination, Bosnia and ats who also are from the Republic of Srpska. Herzegovina expressed their ignorance in It implies that only a person who proclaims safeguarding the minorities – and their subhimself or herself as a Serb and member of sequent right to a decent life through equal this particular ethnicity may be an eligible access to political and economic opportunicandidate for the Presidency on state level ties. Furthermore, the members of Roma and elections. Thus, it is essential to mark this Jewish population were unable to run for the permitted discrimination as a constitutional House of Peoples at the state level, which is gap. actually in accordance with the current law. The signing of Dayton Peace Agreement in December, 1995, rendered a precedent in modern reflections on international law – more precisely, on constitutional and public law. A brutal war finally ended, but ethnic conflicts remain Dino Pehlic active as the years pass. An artificial peace was reached at the time and it was more than obvious that it did not stand on a fertile ground.
The case Pilav v. Bosnia and Herzegovina at- For a country that is creating its path totests a landmark legal reasoning that funda- wards the European Union, such violations mental human rights are not only violated, of international human rights institutions 38
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are intolerable. The presence of international organizations ensures that judicial decisions will be obeyed. Although Bosnia and Herzegovina has signed and ratified the majority of human rights conventions and covenants, it is unsound that the legislature at the state level ensures discrimination. Thus, when the Dayton Peace Agreement was signed, internationally accepted norms and standards became automatically mandatory. According to the Annual Report on the Results of the Activities of the Institution of Human Rights Ombudsman of Bosnia and Herzegovina, 2966 appeals were received in 2015, and 1790 cases were related to the violation of civil and political rights (Annual Report…, p. 9). The relation between the Constitution, legislature and internationally accepted documents on human rights is tangled due to internal divisions and animosity between the political representatives of constituent people. This issue will not be solved as long as citizens of this country are observed through the prism of ethnicity. In 1993, Bosnia and Herzegovina ratified the accession and succession agreement for the International Covenant on Civil and Political Rights. In Article 3 of the herein Covenant, the following is defined: “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant” (United Nations…). This Article precisely denotes the obligation of the State to ensure political rights. Since it is a signatory member; accordingly, Bosnia and Herzegovina is not respecting the international document, under which the State agreed to enforce it. Further in this Covenant, Article 25 states the political rights of
every citizen: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country“. By referring to a current situation, the term “every citizen” is taken selectively in the legislature of Bosnia and Herzegovina. As it was aforementioned, only the constituent people are able to enjoy and practice their political rights, but with precise limitations –since only the Serbs can fully use their rights in the Republic of Srpska, (Bosniaks and Croats in the Federation.) Another issue relates to the correlation between the territory, the residence, and the enforcement of this specific human right. One specific entity or a canton cannot be an exclusive territory for enforcement of political rights of a particular ethnicity. Since minorities live across the country, it is obvious that only a full inclusion in political process will safeguard the rights of every citizen. The complexity of a permanent discrimination can also be measured with the political interventionism by the European Union institutions. Bosnia and Herzegovina started its stabilization and accession negotiations in 2005. – the precondition, among numerous others, were legal reforms. The European Court of Human Rights rendered a decision on vio39
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GUEST AUTHOR lation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, in 2009. Afterwards, the EU institutions demanded amendments to the Bosnian Constitution and the modification of election law in accordance with the international standards and anti-discrimination policies. This case quickly became a manipulation tool for the representatives of three constituent peoples.
If a voting system is discriminative, solely based on the principle of ethnicity (three constituent peoples), then limitations to national minorities should be abolished. This can be achieved by the enforcement of legal measures (adjustment of election law), but also by political emancipation of citizens â&#x20AC;&#x201C; influencing the awareness about tolerance and multicultural environment of their own In search for extended political powers they country. have ignored the needs of minorities and A permanent discrimination will exist in failed to harmonize the national laws. It is further years, as a result of the inadequate significant to add that the official European effect that the Dayton Peace Agreement has agenda was shifted from legal to economic proven to have. The generality of the Constireforms, right after the unsuccessful negotiatution, regarding the protection of political tions which lasted for almost ten years. Inrights of national minorities, must be a subcongruity exists; the court ruled, by majority ject of legal reforms in a due time. Accordvotes, that Bosnian domestic law is violatingly, all above-mentioned cases must serve ing Article 1 and Article 14 in conjunction as a guideline for political representatives in a with Article 3 of the European Convention policy-making process, if Bosnia and Herzeon Human Rights (Lilyanova, 2015). The govina wants to establish effective and trustright to free elections was argued from the worthy democratic governance. The system standpoint of the European legal practice, should not be privatized by three constituwhereby every citizen who holds a nationalent peoples, but rather it should be fair, open, ity of a Member State, is allowed to stand for and protective towards all citizens. elections. Transferring this to the perspective of Bosnia and Herzegovina, it would imply that every citizen who holds a nationality of this country should be allowed to stand for elections. Thus, the question remains, on what can actually serve as effective sanctions for systems with discriminative legislature and policies in the field of human rights. In the case of Bosnia and Herzegovina, politicians managed to overcome sanctions raised by the international community (European Union institutions and Office of the High Rep40
By Dino Pehlic American University in Sarajevo, Bosnia and Herzegovina
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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 170 terms waiting for you. www.lawyr.it 41
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PROFESSIONAL SPOTLIGHT Interview: Adrian Ster Competition Partner at Wolf Theiss Bucharest Adrian Șter is a Partner at the Wolf Theiss Bucharest office since 2016 and the coordinator of the Competition & Antitrust Practice Group. His experience in relation to competition Law matters extends over ten years, having been admitted to the Bucharest Bar in 2006. His education includes a Bachelor’s Degree in Law from the Babeș-Bolyai University (BBU), but also an LL.B at the Nottingham University and a Master’s Degree with Merit on European Law at the University College of London. He is also a frequent author and co-author of articles in leading local and international publications on competition law matters. Lawyr.it: To begin with, can you tell us a few things about yourself, how did you get here and how did you get to practice Law?
a different level but, having taken my LL.B in the UK as well, I would probably say that the LL.B was more important in the grand scheme of things, in the sense that, had I not taken the LL.B, I would not have done the LL.M. If I were to advise anyone, I would suggest they take the LL.M after a few years of practice, if possible, to allow them to better understand the matter from a practical perspective. Lawyr.it: Do you feel like there is a substantial difference between an LL.B and an LL.M? Do you think that you need to be more knowledgeable to get the most out of an LL.M program? A.S.: I do not believe that an LL.M is more difficult per se than an LL.B – they are both different things, posing different challenges. You do not have to be smarter to take an LL.M, but since the subjects are dealt with at a more in-depth level, a practical experience serves you well. Finally, for me it was completely worth it taking the LL.M full-time and not part-time or via distance learning, even though that may not be feasible for everybody.
A.S.: I never really saw myself as doing anything else but Law, with the only potential alternative being economics. It is difficult to say why – there were no other lawyers in my family, so it was not a case of taking after a close relative, and it was a matter of personal choice, not anything that was imposed upon Lawyr.it: Is there such a difference between me. a full-time Master’s and a distance learning Lawyr.it: We know that you have a Master’s one? Degree in European Law that you took in the United Kingdom. How beneficial was it A.S.: I am inclined to say yes because you are not being exposed to the same academic to you? environment. When you are there (i.e. at a A.S.: My LL.M was obviously important university), you are doing what the rest of since it took my theoretical preparation to the students are doing; the challenges are 44
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PROFESSIONAL SPOTLIGHT more frequent and they require continuous engagement. On the other hand, if you are not studying there, you have maybe three weekends when you must go to the university, every lesson is very condensed and there is an even greater deal of individual study. In other words, even if you can benefit from the lecturers’ expertise, you cannot do it as much as you would do it if you were there daily, going to every course and seminar.
“There is a great correlation between competition regulations, sectorial regulations, and the economic incentive which is involved in the activity of all the active entities in that field; and the lawyer must know them all.” Lawyr.it: How did you manage to get into the Competition & Antitrust area and what do you find appealing about it? A.S.: The first time I ‘made contact’ with Competition Law at a high level was at the Nottingham University. I started with what was being taught at the lectures and then I began reading additional stuff on my own, realising that it was an interesting and very much still evolving branch of the law, which was one of the factors which drew me to it. Compared to, say, Civil Law, there is not a lot of doctrine written and there are not many ‘sacred’ things which you cannot argue against. Finally, Competition law requires a blend of legal and economic approach which I find fascinating. .
Competition Law? Do you feel like there are some sort of traits and characteristics that one should have to work in this field? A.S.: I do not think there is a type in terms of personality. I have encountered introverts that were great in this field, but I have also met extroverts who were amazing. What I do believe should characterise a competition lawyer is a constant curiosity and a willingness to understand more because after all, the lawyer is supposed to understand the client’s needs, not the other way around; and to do that, you must learn a lot about his business. This is, in theory, true about every branch of the law, but it is certainly less relevant in, let’s say, contract-based litigation than it is in Competition law. Insofar as Competition law is concerned, you cannot talk about a specific sector without understanding it first. There is a great correlation between competition regulations, sectorial regulations – the ones which apply to that specific field –, and the economic incentive which is involved in the activity of all the active entities in that field; and the lawyer must know them all.
For instance, the pharmaceutical sector and the energy sector have specific regulations, so the competition rules which apply to these two sectors differ significantly. Insofar as the pharmaceutical sector is concerned, you must understand why a distributor has a certain interest, why the producer has a somewhat opposing interest, what should be the sectorial regulations, and what is supposed to be the position of the Competition Council, and you cannot do that without understanding the sector. Every time there is a Lawyr.it: Do you think there is a type of regulatory proposal coming up in a certain lawyer of person that is better suited for field, you can see some of the players on the 46
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PROFESSIONAL SPOTLIGHT market taking a certain position and you will learn more in a big law firm because there never understand why they are acting that are more people there from whom they can way unless you understand the sector first. learn. In theory, a trainee would be exposed to more branches of Law and at a higher Lawyr.it: Do you think that a diverse edulevel in a bigger firm than in a smaller one cational background, both domestic and or at an individual practice; sure, they might abroad, made you want to work in a big manage to go through everything at a smallLaw firm such as Wolf Theiss? A.S.: Not necessarily so. The market for business law services in Romania is mature enough to allow for a couple of different approaches. As a general rule, a bigger law firm, unlike a smaller one, can give you the possibility to further specialise yourself, with exceptions proving the rule, of course. Finally, it did not play a role in my choosing an international law firm at the expense of a domestic one â&#x20AC;&#x201C; indeed, I have spent more than half of my career in Romanian law firms.
â&#x20AC;&#x153;As a general rule, a bigger law firm, unlike a smaller one, can give you the possibility to further specialise.â&#x20AC;?
er firm or at an individual practice, but at a much lower level and intensity. But then again, the exceptions prove the rule; there are some amazingly talented lawyers that work in individual practices.
Lawyr.it: Related to that last question, why do you think that most Law students and graduates are inclined towards big Law firms and not smaller ones? How can you explain this trend?
Lawyr.it: How would you explain the switches a lawyer makes between firms during his career? How can you explain that they seem so usual in a market that seems so stoic? Is it about money, possibilities for advancement, both or is it something else entirely?
A.S.: I do believe that the material component must be taken into account here, which has a great value in a decision, where we like it or not. At one point you need a steady income and large law firms may be in a better position to provide a graduate with such an income. Secondly, looking from the outside in, it may seem to them that the activity of a larger law firm is way more interesting and, for lack of a better word, glamorous; you are involved in transactions that have a certain visibility and impact on the market, you have access to things you could not have had in a smaller firm and the list goes on. And thirdly, I feel like people realise that they can
A.S.: I do not think there is a universal answer to this question. The answer is different from one case to another and there are a few factors that must be taken into consideration. Firstly, the money matters, but it is not the defining factor in most cases. How well you communicate with your co-workers, what are your career opportunities, is there an investment made in your development, do you receive the professional exposure you desire, those factors all matter and I would say that the more senior you are the more they matter. However, I do not see it as unfortunate that people switch work places more often; I see it as a sign of a mature mar47
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PROFESSIONAL SPOTLIGHT ket and a sign that there is enough choice out there for lawyers. Even so, I do not think that it is an easy decision for anyone – not the firm, nor the lawyer – or a decision that should be made from one day to another. Lawyr.it: From your experience, how hard is it for a successful lawyer to manage the time working for a client, while also having their own free time? A.S.: It is a matter of efficiency, prioritisation, and decision-making. I like to say that we, as lawyers, work half our time with people and the other half with paper. And most of the time, you can put the papers down anytime you like. In other words, if that means that I need to leave by 6 PM to get home to see my kids and stay with them until they go to bed, I will do that and I will finish whatever I need to finish afterwards or the next morning. This is one of the great things that come with the fact that we can work remotely as lawyers, that we do not need to be physically present at the office all the time. Solutions can be found. Lawyr.it: What do you think are the advantages and disadvantages of those extremes (i.e. someone who is too dedicated to their job against someone who is not dedicated at all)? Do you think that someone can also be a good lawyer while being that way?
if you are too involved, you might take a bad result personally even though you did your job. In addition to that, of course that the life outside the office will suffer too. On the other hand, no one can deny that in a big law firm you must be always available; I do not think that you are ever truly ‘out of reach’. There are almost always things that pop up that require your immediate attention, even if you are on vacation. If you are not sufficiently involved, at some point someone will notice that and the collaboration between you and the law firm will probably suffer. After all, it (the collaboration) needs to be something that satisfies both the lawyer and the firm.
“This is one of the great things that come with the fact that we can work remotely as lawyers, that we do not need to be physically present at the office all the time. Solutions can be found.”
I would find it difficult in either of those extremes. It would be tough without the balance and the fulfilment that my family gives me, but I could not do without the professional part either, it would also frustrate me. I do believe that there is a place between A.S.: Disadvantages to being too dedicated these two extremes, that you can be a ‘sucwould be that you are way too emotionally cessful’ lawyer, however you define that, livinvolved in things you do not have control ing between them. over and that is affecting you in case of unLawyr.it: What can you tell us about how favourable results. Things do not always dehard it is to become a partner at a big Law pend on your involvement and sometimes firm and what does it take to get there? – though not very often - there is nothing you could have done better. At some point, A.S.: Again, I do not know if there is a one 48
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PROFESSIONAL SPOTLIGHT size fits all approach. Obviously, you need to be good at what you do, but after that, I think the circumstances differ for every partner because this position covers a wide range of abilities which differ, to some extent, from law firm to law firm, so there is no ‘standard’ partner. There are some partners that are amazing professionals, really exceptional lawyers, but who do not stand out on the human interaction or client relationship side. On the other hand, there are others that are great at these things, but do not have the professional background or legal experience that the first ones have; instead, they have the gift of being superb entrepreneurs. Then again, there are some that try to mix those two. A very important thing is to know exactly what is expected from you; depending on your career path you may be used to being more of a follower than a leader, but as a partner you may be asked to develop something yourself, and you must be prepared for that. Finally, I believe that the average time to become a partner will increase because the market for legal services does not grow fast enough to account for all the good lawyers that enter it. That is in addition to the fact that we have a market that is quite young, at 27 years of age, and most of the partners are younger than 45, so the openings are relatively few and far between. But after all, I think it is also about yourself and about the opportunities that present. There could be a great expansion of a certain field that requires specialised people, in which case someone might skip a few steps because there is a demand for a particular type of legal service.
What is very clear is that in order to have a chance at becoming a partner you must be able to show both professional competence and good to great entrepreneurship and managerial qualities. Lawyr.it: Given that you are the Coordinator for the Competition Team at Wolf Theiss, how well does it suit you and how good do you think you are at it? A.S.: I like the decisional freedom and the autonomy that I have now, as head of the department tasked with its development, but even so, I very much rely on the way that the firm does things, and I use the support and business development systems in place to their fullest.
“A very important thing is to know exactly what is expected from you; depending on your career path you may be used to being more of a follower than a leader, but as a partner you may be asked to develop something yourself, and you must be prepared for that.” The difficult part in any project such as department development, which I believe is something of an ongoing project for every Partner, is to come up with the concept and to actually implement it yourself. Generally speaking, in other sectors besides law, the people who do these two steps are different people, with different skill sets, because it is hard doing both. With Wolf Theiss, I feel like we have the system that properly helps you to put into practice any idea you might have, and that brings out the best in me and 49
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PROFESSIONAL SPOTLIGHT makes me look better than I would on my and exciting stuff. This is what drives you to work late nights and early mornings, otherown. wise routine kills creativity and the desire to Lawyr.it: With regard to this topic, do you excel, and both are essential in this line of think you are constantly developing yourwork. In my case, fortunately, I would say it self or you have reached a point in which is more about passion. you are only helping your team evolve?
“I feel that the educational sysA.S.: You have no chance in this field if you do not constantly better yourself, it is not tem in Romania is focusing on the possible. I do not think there is a single lawwrong things, such as the amount yer, in Romania or abroad, that can tell you of information processed and not with a straight face that he or she is not always learning something. Most importantly, the type of information or the abilthis is a field which, by its nature, undergoes ity for critical thinking.” constant change and it is impossible for you to stagnate while it evolves. You cannot be Lawyr.it: Going back to the topic of learnstuck on a way of doing things and simply ing, do you have any idea about what you assume that just because it has worked in the would change about the legal education past it will work again in the future. system in Romania for it to create betterprepared graduates? “You have no chance in this field if you do not constantly better yourself, it is not possible.”
A.S.: I do not think that you can separate the legal education system from the educational system in general, and I feel that the educational system in Romania is focusing on the wrong things, such as the amount of inforLawyr.it: How much of your current work mation processed and not the type of inforis work you are passionate about and how mation or the ability for critical thinking. much is routine? For me, personally, the hardest step of my A.S.: This is an interesting topic, because education was the high-school. The largest things are usually not what they seem. There amount of information and perhaps even the are a number of projects that seem intermost difficult to process is being force-fed in esting when they reach us, but once you go high-school. From that perspective, univerdeeper you find that they are fairly routine, sity seemed a lot easier for me; of course, that while there are also some that seem routine does not mean that it is easy. I would start over a quick glance but are more exciting by making the university ‘the most difficult’ and intriguing once you go in depth. part of the educational system because after After all, I think this is also about the way all, that is where you are going to learn what you look at things and the way you approach will serve as the backbone of your career. your tasks, because you can always find new 50
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PROFESSIONAL SPOTLIGHT After that, I would drastically reduce the number of subjects taught in high-school; maybe three or four main subjects and another three optional ones. Or, if we were to keep things as they are, maybe we could switch to three or four subjects that are graded and the rest be simply market ‘Pass/Fail’. Regarding the legal education system, I would follow the UK system and teach only substantive law, not procedure, in Law School, with procedure being taught if you want to qualify for the Bar. Finally, I believe that the curriculum should be less about mandatory courses, of which there would be one or two per year, and more about optional courses, allowing you to specialise in your area of interest. We must admit that, in 2017, lawyers must be specialised in order to provide a high level of service to their clients – the days of the know-it-all lawyers are passed, as far as I am concerned. Lawyr.it: What legal gaps or any other kind have you noticed about new graduates and what skills do you think they should develop more during their studies? A.S.: I do not think I am the best person to answer that question, being specialised in a niche field that is not being taught during Law school. Incidentally, if you look over the CV’s of those that work in Competition, you will notice that most of them studied abroad, whether it was a Master’s or a course in this field. Very few entered Competition only with what they did during Law school. On the other hand, I feel like the Romanian school is wrongfully insisting on the theoretical approach; we should be more pragmatic. We have many practitioners that are also lecturers and I would expect a practi-
cal approach to teaching, an optimal way of structuring the course so that they are based on what is more important in practice, not on some ‘extraordinary’ case that happens once every 100 years Lecturers need to translate a legal, dense, sometimes inaccessible language to a more understandable one that a 3rd or 4th-year student can understand. Obviously, the student should rise to the occasion, but the professor also should lower himself to reach the students; middle ground must be reached. I go back to the quote used in relation to medical students in the US: ‘When you hear hoofbeats, think of horses, not zebras’ sometimes the most obvious explanation is also the correct one.
“ In 2017, lawyers must be specialised in order to provide a high level of service to their clients – the days of the know-it-all lawyers are passed, as far as I am concerned.” Finally, you cannot discount the need of an educational infrastructure and the absolute need of access to information in the educational system. Being a student should bring many benefits, including access to a number of legal databases Seminars should take place with 5-7 students, last an hour or two and be held in the form of a round table open discussion. Lawyr.it: What do big Law firms, such as Wolf Theiss, look for in Law graduates? Is it foreign languages known, general knowledge, Master’s done, studies abroad, high grades, or is it all of them? 51
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PROFESSIONAL SPOTLIGHT A.S.: I think there are some common requirements on the Business Law market in Romania. Speaking English at a high level is no longer avoidable, whether you are in litigation or consulting. Everybody assumes that applicants speak English. At Wolf Theiss, maybe 95% of our deliverables are in English. And we are not talking about conversational English, but about a high level that allows you to negotiate properly.
A.S.: One mistake that I have made, one that I think many graduates make, is that I looked at this profession like it was a series of sprints, not a marathon. I was the impression that you need to go all out, give everything you have for a project, do your best job, as fast as you can and then some sort of break will come. That is not true at all. They must shake off that ‘student thinking’ that revolves around the ‘study – exam – study – exam’ approach. Being a lawyer means putting up a sustained effort in which stress is common. Every day is basically an exam, everyday someone will call you and ask you something, with the stakes being much higher. Unlike Law school, here you cannot leave questions unanswered.
When talking about grades, how much they matter is up to every firm or even every partner. From my point of view, I can only take good grades as an indicator that you are willing to work and learn, and that you can be relied on for a medium to long period of time. If it comes down to it, I would much rather take into consideration the grades ob- “Being a lawyer means putting up tained during the 4 years than the gradua- a sustained effort in which stress is tion exam. Over the years, the grades matter less and less; 10 years after graduation, they common. Every day is basically an exam, everyday someone will call tell me close to nothing about you. Besides good grades, we like to see extracurricular you and ask you something, with activities; that shows me that besides attendthe stakes being much higher.” ing Law school, the student dedicated his time and energy to another topic which he Lawyr.it: Currently, a lot of students and was passionate about. graduates have certain goals in their minds From a personality standpoint, I love workand make the common five or 10-year plans. ing with people with defined, strong personDo you think this kind of practice is healthy alities, people which have their own opinions and how does it translate into a lawyer’s and can back them up. I do not like working life? with ‘yes-men’, I have never looked for that. I want someone that challenges my ideas and A.S.: To a certain extent, it is healthy to look solutions, someone that is understands that ahead, to have some goals, but it would be a career in Law requires lots of time and ef- ideal that those goals are related to things you can control. For example, say that in five fort. years you want to achieve a PhD, or that in Lawyr.it: What was your general impresfive years you want to be specialised in a cersion when you started practising and how tain area and in two additional fields – these did it change over the years? are things you may, to a certain point, con52
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PROFESSIONAL SPOTLIGHT The main reason for doing it is, perhaps, pride - the pride you take in seeing your name on the door, even though it is a smaller, older door, it is your door and your name, you are the ultimate decision maker and some people are willing to give up a lot to I have met great students and graduates, achieve this. knowledgeable and extremely smart, who had the wrong impression that all the lawyers Lawyr.it: And finally, our signature Lawyr. in the firm are in constant competition with it question, if you had to give one piece of each other and that they are all running the advice to Law students and your practitionsame race. It is impossible to compete with ers, what would that be? someone that is six years ahead of you; the A.S.: Try to supplement your theoretical competition is only in your head. You must education with a practical one. Be mindbe capable of adjusting your goals according ful of all relevant economic aspects; follow to reality. For most of us, the world ends up what is happening on the market, read Zichanging us, not the other way around. arul Financiar, read Financial Times, read Lawyr.it: Why would you not open your the Economist when you get the chance. Pay own Law firm once you have reached a cer- attention to what is happening around you tain point in your career, being successful because these things matter. Many times, the difference between lawyers in their clients’ enough to take on a different challenge? eyes is not made necessarily by their comA.S.: There are a lot of reasons against that, petence level, as clients are not always best the main one being that I love being a lawplaced to evaluate that, but about the way in yer. When you start your own law firm, you which they deliver what they promise, the run the risk of becoming more of an entreway in which they communicate with them preneur than a lawyer. You need to take care and stand up to their end of the bargain.. Unof everything that represents logistics, busiderstand that what you are about to do has ness development etc.; at the beginning at a higher purpose, a different finality. Law least, it would be very difficult to have all is not an end in itself, law is about solving the systems in place to support that and alproblems and in order for you to solve those low you to focus solely on the law side of the problems, you must understand the issue at equation. a macro level. Be curious about what your Another reason is the type of work that you clients do, because many times the client would do and the type of clients you would wrongfully identifies his issue and proposes do it for. The clients you might have now may an equally wrong solution and you must be not be your clients if you go out on your own capable enough to identify the correct issue and what you are specialised in and love do- and the correct solution. ing on a day to day basis could be too much By Cătălin Sabău of a niche practice to support a whole firm trol. If you set goals in relation to things like income or position and see those as a ‘must’, you might be disappointed, as most of those goals are set with little to no understanding of the playing field.
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PROFESSIONAL SPOTLIGHT Interview: Dr. Péter Hack Associate Professor, Eötvös Loránd University Faculty of Law, Hungary Dr. Péter Hack is currently teaching as associate professor with habilitation at the Eötvös Loránd University of Science (ELTE), Faculty of Law. His primary fields of research and expertise are criminal procedural law, the structure and functioning of criminal jurisdiction, transitional justice, and rhetoric. He is Head of the Department of Criminal Procedures and Correction at the ELTE University and of the Workshop of Criminal Law in the Bibó István College of Advanced Legal Studies. He has been founder of Transparency International, the Hungarian Helsinki Committee, and the Hungarian Association of Criminal Law. Lawyr.it: What is – or could be – the broader context of the recent law that has become known as “Lex CEU” and what line of past and potential future tendencies does it seem to fit into? P.H.: The policy of the government elected in 2010 is characterised by a remarkably stronger belief in central state control than decentralised decision-making. At the same time, it is a unique controversy that Brussels is being accused of exactly the same intentions and measures which the government is putting into practice now: local governments have been deprived of the majority of their powers, their autonomy has been reduced extensively, the independence of the institutions of public education has been undermined. The same striving can be observed in 54
the sphere of higher education as well, especially with regards to the introduction of the position of chancellors, which significantly destructed the financial possibilities and autonomous management of the institutions in question. Practically, it has made it impossible for universities to be self-financing on a market basis, while the government has constantly been strengthening and promoting the position of colleges of religious affiliation and increasing the sum of tuition fees in the case of public universities. Lawyr.it: More specifically, with regards to the present legislation, to what extent can it be viewed as a regulation aimed directly at eliminating the functioning of the Central European University? P.H.: Basically, the legitimate side is that the ideology of the current government is undoubtedly ambiguous with the mentality and system of values represented by the CEU and the Open Society Institute due to its founders and the government cannot be obliged to accept these views. Nevertheless, in the past weeks the government made it obvious that it was having a campaign against György Soros and the CEU. Therefore, every statement suggesting that these regulations are not targeting specifically the CEU is highly questionable and untrue as the background rhetoric is completely clear. Besides, this can be inferred from the method of solution for the conceivable problems. If the objective would seriously have been to find settlement, they would have negotiated with
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PROFESSIONAL SPOTLIGHT the university (and the Rectors’ Conference) to achieve mutually acceptable agreement. In addition, they could have consulted with the Hungarian Academic of Sciences about the potential impacts of the regulation on the Hungarian academic sphere and the opportunities of Hungarian researchers. It has to be noted that this has a vast capacity to worsen the situation of Hungarian academics on an international level and decreases the possibilities of researchers in terms of cooperation. Lawyr.it: What are your views regarding the procedural aspects of the adoption of the legislation? P.H.: A set of procedural guidelines is an integral part of the concept of the rule of law. There are also certain established rules aimed at regulating certain situations and conditions, such as foreseeability and predictability, which were neglected in the present process. Also, there are merely ideological grounds and justification for the regulations, which are insufficient basis of legislation. Besides, in 1995, the abolition of the so called Bokros-provisions by the Constitutional Court – also welcomed by the members of the now governing party – was exactly based on the fact that it didn’t provide satisfactory time for preparation for the subjects of the law.
these problems actually are. What the government is now stating as criteria – that the CEU should organise educational programme in the United States as well – was not a precondition before, so this could not serve as proper basis of the Educational Office’s criticism. Based on the laws pertaining to its activity, there may have been a lack of fulfilment of certain data provision obligations, however, the new legislation does not include any rule concerning this issue. It is especially difficult to understand why the changing of the established legal provisions is the reaction to the potential problems. With reference to the substantive part of the present law, it is problematic that the future of the institution is vested in decisionmakers on whom the university can have no influence at all. Therefore, its existence becomes dependent on the agreement between the government of Hungary and the United States.
“With reference to the substantive part of the present law, it is problematic that the future of the institution is vested in decision-makers on whom the university can have no influence at all.” Lawyr.it: Can it be considered that the CEU has been having certain benefits that other Hungarian universities were lacking in, so the provisions could be a way of balancing this inequality?
Lawyr.it: What is your opinion on the justification provided by the government, pertaining to certain problems in the functioning of the institution? Can legislation be considered the appropriate way of solution P.H.: The problem of the Hungarian univerfor the situation? sities is not the existence of the CEU, but P.H.: It remains unclear until today what their own shortcomings and inadequacies in terms of infrastructural conditions, as 56
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PROFESSIONAL SPOTLIGHT well as the appreciation and salary of university lecturers. The CEU has a remarkable advantage in this regard. The professors can teach and research at one place, without being forced to take two or three jobs simultaneously to be able to establish their financial background. Besides, without a system of “mass education”, the quota of students per lecturers is a lot lower that can lead to training of higher quality. The situation of the Hungarian universities will clearly not get any better without the CEU. Quite the opposite: those students who are now attending the CEU will either go to where the university would be set up again or would attend other Western-European universities where they can attain education of a more advanced level.
may we have in connection with the decision of the Constitutional Court? P.H.: It is worth mentioning that in 2010 the practice according to which the members of the Court could only be elected based on the consensus of the political sides and par-
“The real objective of the government is obviously to eliminate certain values, a liberal way of thinking and philosophical approach represented by the CEU. If we accept this as a fact, the next question is whether it has the right to abolish those systems that go against its own views.”
Lawyr.it: After the procedural concerns mentioned already, could the unconstitu- ties ceased to exist. In 2016, the final step tional nature of the regulations be declared on this road was that only those nominees could get into position who enjoyed the on the basis of their content? support of the present government. At the P.H.: I believe that the unconstitutional nasame time, as reflected in the survey of the ture of the provisions can in fact be estabBerlin Institute, a dramatic turn occurred lished from a merely substantive perspecin the Court’s decision-making tendencies. tive. This is because the real objective of the Previously, the statements of the Court went government is obviously to eliminate certain against the intentions and viewpoints of the values, a liberal way of thinking and philogovernment in 80% of the cases. However, sophical approach represented by the CEU. since the aforementioned shift, its verdicts If we accept this as a fact, the next question were favouring the government in 70% of is whether it has the right to abolish those the cases. So, if you had put up this quessystems that go against its own views. If we tion ten-fifteen years ago, I would have said accept this, there would practically be no lethat these provisions would most probably gal certainty at all, as any other governmennot stand the test of the Court. Now, there is tal party would have the right to act in the a feasibility of 70% that the interests of the same way. government would gain preference and that Lawyr.it: When it comes to the probable the Court would not find a basis of violation. way of declaring the law unconstitutional, By Krisztina Gula what kind of perspectives and expectation 57
QUESTION OF THE ISSUE
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QUESTION OF THE ISSUE How did technological progress influence studying/practising law so far and how will it change it in the future? The Question of the Issue section gives our readers the chance to not only read about issues that concern lawyers but also contribute with their own ideas and experiences about the profession in general, or more specific aspects concerning a lawyer’s path. In this issue we were curious to learn how technological progress influences, benefits, or challenges studying and practicing law, so we turned to law students and active professionals to give us their take on technological progress in the field of law. We would like to thank them once again for sharing their intriguing answers, and invite our readers to find out more in the following! “Technological progress has dramatically influenced all activity fields, and research has not made an exception. Thus, in the field of Law, computer resources have significantly contributed to facilitate the work of a student / researcher in the field who can now consult on-line the catalogs of libraries and also find whole papers or articles and journals published on the Internet. Even when I had to write papers, I turned to digital resources for documentation, finding plenty of materials especially in English and in the field of European law. However, I believe that some types of information should be treated with caution, as there may be people without specialist knowledge who can express their disputable views. Even though we notice this technological progress, in my opinion, we should adopt a balanced attitude so that we do not neglect libraries, which are still the most reliable resource in research and learning, in any field. To sum up, I believe that online resources are useful in the study of Law, making it easy to find books that are otherwise inaccessible, although reliable Romanian resources in some areas are quite difficult to find.” Mihai Teofil Herineanu Student at Faculty of Law, Babeș – Bolyai University
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“When I started my carrier, some 25 years ago, we had no PC, no access to the internet, no copy machines or scanners. If I needed to consult the accurate text of a law, I had to find the written official text in the Official Gazette, which was retrievable in very few places, specifically, in only one library in the county. At my first workplace we had one copy machine, and if I wanted to make copies, I first had to write a motivated memo which would be accepted in writing by the CEO of the firm specifying why the firm really needs the copies and the exact number of the sheets necessary for this. It is easy to understand how the making of a few copies took three or four days. Now, with a PC, a printer & scanner, all connected to Internet I can solve a task that before took me a week and a lot of boring bureaucratic procedures in only a few minutes. A lawyer’s job has become easier and faster.” Horváth András Lawyer “Technological developments revolutionize the practice of law by allowing for improved legal research, higher efficiency of operations, and better quality of response to clients’ demands. On the other hand, in this era of marked dependency on technology, successful practice of law is directly related to the deep understanding of the complex and constantly evolving nature and effect of technology. Effectively implementing the law in this complex environment is often a difficult task. Technological developments happen much faster than the legislation process, and law professionals sometimes have to work with outdated or non-existent legal remedies. Consequently, the legal practitioners must learn to be creative, in order to meet the needs of the people, to protect the rule of law, and to safeguard human rights and freedoms.” Ioana Vasiu Professor, Faculty of Law, Babeș Bolyai-University
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QUESTION OF THE ISSUE How did technological progress influence studying/practising law so far and how will it change it in the future? “Technology has advanced and is advancing exponentially throughout time, but the adaptation of new technologies is a slow-moving process within the legal world. Over time, the social media revolution reformed the way legal professionals manage their careers, build business networks and communicate with their clients. The appearance of smart devices had even a bigger influence on legal services, providing portability and instant access to information at a reasonable price. Electronic case management systems, legal databases, automation and cloud computing technologies also facilitated cutting costs and improving client service. In the meantime, technology runs ahead, artificial intelligence is just around the corner, and with a high probability will be able to partially replace the value of skilled professionals’ involvement in the provision of legal services. For a 21st century legal professional it is not enough to possess legal knowledge and administrative ability, it has to be tech-savvy likewise.” Barnabás Székely Data Protection Consultant, L Tender-Consulting, Member of International Association of Privacy Professionals
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“The first things that come to mind when talking about technological progress in practicing law are: copiers, facsimile machines, desktop computers, laptops and internet. Without these instruments, students and law practitioners would not be able to do legal research or word processing as fast and effective as today. Moreover, I would like to point out that legal education and awareness raising have been enabled to a large extent by internet and computers. Presentations, materials and information are more accessible and interactive, ensuring that the target audience understands the message. In regard to the future changes, I think that as technology will advance more, the managers (from both the public and private sectors) will have to identify the areas that can be enhanced or replaced by new technological tools, and take the appropriate measures.” Răzvan Boștinaru Legal advisor, Department for Crime Prevention, Ministry of Justice
“It goes without saying that the evolution of technology has had a massive impact on the law field in the recent years when it comes to both studying and practicing it. From my very personal experience as a law student it is difficult to recall a moment when I didn’t use technology as a tool to help me throughout the years for: communicating via social media with my colleagues, programming my exams on-line, ordering books, reading e-books, writing papers, doing research or simply staying up to date with the latest legal changes, as law is a very dynamic field. I expect that in the forthcoming years it will ease up even more the whole process of studying, teaching, or working. I hope that practitioners will rely more and will learn how to use the technology at its best, since it has proven itself extremely useful and time-saving in the most various situations, for instance in courtrooms, or law firms.” Daiana Avășan Student, Faculty of Law, Babeș-Bolyai University
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DEVIL'S ADVOCATE Would a judicial system be better if it were computerised, by replacing judges and lawyers with computers? This issue's advocates: PROs: Cristian Ioan Cristian is a 4th year law student at BabeČ&#x2122;-Bolyai University in Cluj-Napoca, Romania. His biggest desire is to deepen his knowledge of law and bring his contribution to help others understand and respect it.
CONs: Dorin Giurgi Dorin is a 4th year law student at BabeČ&#x2122;-Bolyai University in Cluj-Napoca, Romania. He aims to become a lawyer and to contribute to the predictability of the Romanian judicial system in his areas of practice.
Debate Foreword. Moderator's note A few years ago, we were excited to see that increasingly more aspects of our lives started to become computerized. From the way we buy our bus tickets to the way we interact with one another, more and more daily activities shifted from their traditional approaches to some that are, one way or another, dependent on modern technology. It was thus obvious that people started to wonder whether or not everything can eventually be computerized. More importantly, will we ever get to a point where judicial systems, which are naturally based on human activity, are going to be computerized? Would it be actually better this way? We invite you to read the following debate 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 66
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Opening Remarks Cristian Ioan: For the purpose of this debate, I will not dive in the technological aspects concerning the current capabilities of computer systems. I will rather consider a theoretical model in which computers are able to deliver case law at a similar judicial error rate as the current one. Whether that is technologically achievable remains debatable, and only time can tell. Firstly, depersonalizing the judicial process would greatly benefit the system as far as correcting problems concerning corruption related issues. I believe that there is no significant reason for further elaborating this point, as corruption is fundamentally humane and can even be regarded as a cultural issue. Even though other measures can hinder this phenomenon, switching to a computer- based judiciary procedure would mostly eradicate corruption in this field in the swiftest and most cost-effective manner possible. Switching to a more utilitarian model will also solve a plethora of issues that derive from the human nature of those involved in the judicial process. It is not hard to see how race bias or bias based on looks, religion or sexual orientation would be eradicated.
Dorin Giurgi: First of all, we acknowledge that in order to fully grasp the subtleties of this topic, a definition of terms is necessary. Therefore, by computerised, I understand all kinds of electronic systems that are capable of applying certain rules (the law) to real-life situations. Considering the implied premise of the debate, that of the existence of such computerised system, I will only mention that, for the purposes of this debate, this system does not have the emotional and social processes of a human being. If someone would hold the contrary, and we would further accept as a premise that the system possesses perfect understanding of human emotions and behaviour, the opposition would essentially have to argue against an entity that is like a human, only that it is a great number of times more efficient. My position in this debate is that a) fully replacing lawyers is not possible, and, even if such system existed, b) neither that (replacement) of judges. Regarding a), the difficulties one finds when trying to replace lawyers, the following objections can be raised: i) Non-jurists will find difficulties in accessing the “computerised system”;
ii) The need of assistance regarding procedural requirements, e.g. as to what constitutes eviSecondly, the judicial process would be signifi- dence, may not be fullfilled; cantly less time consuming, as delivering a deiii) The need for a legal opinion as to possible cision can be a matter of minutes. Basing our outcomes and courses of action, is best satisfied theoretical model in a civil law legal environ- by a human being (because you can relate to ment, and taking the Romanian system as an other persons). example, in contract law related cases, where hearings are not fundamental and the parties It might be true that, if such system existed, usually do not personally attend them, once the court lawyers will become less relevant or insince the system will “think” autofacts have been established, a decision is easily existent, matically, without the need for contradictory delivered. Moreover, the whole process of going pleadings. To summarise, I hold the belief that through an appeal would be rendered superflu- lawyers will be the link between non-jurists and ous. Thus, Appellate Courts would mainly be the “judge”, translating the facts of the differconcerned with assessing whether the case facts ent cases in legal language, for the judgement to take place according to the established algohave changed, based on new evidence. rithms. Now, I will look at the second part of the Furthermore, the overall cost of going through debate, “would the judicial system be better if the judicial process would greatly decrease. judges were replaced by computerised systems”. 67
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DEVIL'S ADVOCATE Thus, the divide between individuals who can or cannot afford costly legal services would be closed. Assuming that the main goal of the judiciary is to achieve a fair judgement, and that real, and not only procedural, equality of arms is essential to achieve such judgement, this is an adequate change in that direction. Currently, even if a person has the right to legal assistance (although, usually only in criminal matters), even if the assigned lawyer is highly competent (which mean having a similar legal prowess to a top attorney), it is almost impossible for him to achieve the same level as a top tier law firm working on a case. Setting aside the fact that quality lawyers tend to have high financial demands, which make them inaccessible to a regular person, simply having the possibility of dividing the workload makes a significant change.
Regarding b), I believe the following arguments will find relevance: i) Laws cannot be applied without interpretation, ii) Lack of second instance examination, iii) Limited social and emotional intelligence and iv) Cybersecurity risks.
Finally, removing personal opinions and empathy from the matter should result in less cases where people knowingly act contrary to legal provisions, on the hope that their case will be different. Although judges should rely on the spirit of the law when analysing the facts of a case, such recourse, if it contradicts or exceeds the letter of the law, should be cautious. It is also based on years of experience and study. Yet, discouraging other subjects of law from acting outside the letter of the law should be seen as essential to a better society. The coldness of a machine seems to be incompatible with the belief that their actions could be seen from a different angle than the one that the law declares.
ii) It is not clear how errors of this system would be addressed, and whether a “second instance” would exist. If the latter is applicable, the question that can be raised is how this “second instance” is different than the first one.
i) At this point, I would like to propose the following ideas: Language is not logically perfect, therefore, laws will not be perfect, meaning that interpretation will be required; Interpretation is a very complex endeavour, meaning that different criteria and sources will need to be observed, some of them involving a subjective appreciation, e.g. the ratione legis approach; supposing that a computerised system would be able to understand such complex realities (i.e. which need to be approached from multiple perspectives) would be unrealistic, since, in such a situation we would suppose the existence of a „supreme being”, which can think on its own using a complete understanding of the laws of nature.
iii) Law is not applied in abstract, but in relation to facts (including witnesses, testimonies etc.). It is hard to believe how justice will be made without the judge screening the person behind a testimony. iv) A computerised judicial system would be subject to a great number of cyberattacks. Considering that even the most secure systems have been repeatedly breached, I raise the issue of this happening in the context of a computerised judicial system, with serious consequences.
Moderator’s Note: Cristian argues that a computerised judicial system is one which is not corrupt, corruption being a problem inherent in a human based system. Also, endlessly long trials and costly judicial services will be a thing of past, because computers are both time and money efficient. Lastly, the risk of personal opinions and beliefs affecting the outcome of a trial won’t exist, because the coldness of a machine will make it rely on the letter of law. However, Dorin argues that such a system won’t be able to respond accordingly to people’s needs, such as the need of assistance regarding procedural requirements, or the need for a legal opinion as to possible outcomes and courses of action. Moreover, a judge doesn’t only read the law, he interprets it, and if he makes a mistake, there is always the possibility of accessing a second instance. Machines cannot be capable of such things, and their lack of emotional and social intelligence along with the risks of cyberattacks are strong motives against implementing this kind of system. 68
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Rebuttal Cristian Ioan: It has been argued that non-jurists will face issues when accessing the computerised system. There are several arguments to refute this statement. Firstly, this problem can essentially be solved through a user- friendly interface, as it is more of an issue concerning luddites, rather than non- jurists. Secondly, the term of comparison we should refer to when assessing the difficulty of using an AI system must be the legal system that is currently in place. Thus, the question should be whether non-jurists would face issues that are more considerable when using computerised system compared to the current one. Since the system is structured on an automatic process, the answer is negative. Moreover, if a person cannot use the system, as a last resort, he or she can recourse to specialist advice. The system would still be more affordable, efficient and faster than the current one. It has also been stated that there would be problems concerning the need of assistance regarding procedural requirements. Taking into consideration the fact that procedural requirements are usually positivistic legal notions, the system should have the capacity of informing the person on these requirements and automatically applying them to the specifics of a case. Since the system crunches data and compares it to legal provision, it is facile to council the person on possible outcomes. Thus, a person can make an educated decision, whether he should invest his time and money in a trial. Since the computerised lawyers will work on algorithms, thus being objective when setting expectations, I believe that would be an improvement on the current system, not a problem.
Dorin Giurgi: It has been said that corruption would disappear. My first response is that (i) replacing judges and court lawyers does not mean that the entire judicial system will function without humans. We will still need at least cops to do the field work (e.g. gathering evidence), lawyers or jurists to enter the data into the system, and prosecutors. The phenomenon of corruption would still be possible at these stages, since it has not been proven yet that they will disappear. My second objection is that (ii) the effects of eradicating corruption would be nullified by problems regarding cybersecurity. In short, cyberattacks, which I believe to be inevitable, have the potential of creating more damage than corruption, as claimed to exist in the status quo. Furthermore, it has then been said that other issues would be solved, like: race bias, bias based on religion, sexual orientation, looks etc. In my opinion, on one hand, (i) a human judge would be accused to have a â&#x20AC;&#x153;race biasâ&#x20AC;? if he treats differently persons of different skin colours. On the other hand, (ii) the computerised system would use statistics, which would indicate that one group is more prone to violent crimes than the other. In this case, what is the computer going to pick?
Moreover, if the computerised system would be an artificial intelligence, how can we make sure that the computer judge will not develop other criteria for solving the cases, other than those provided by its creator? For a human judge, most of the times, due to a certain length of the judicial process, biases are uncovered through the judgeâ&#x20AC;&#x2122;s Regarding the aspects concerning the replace- behaviour. What can you do in case of an AI? ment of judges there were four main arguments. With regards to speeding the judicial process, I Firstly, the fact that interpretation is a key com- would remind that in the present system, once the ponent of applying the law does not mean that it cannot be quantified when creating an algorithm. facts have been established, a ruling is going to be In fact, where language fails, a majority- accepted pronounced at the end of the judicial debates. In interpretation could be integrated in the system. my opinion, the existence of cases in which the This would also serve the principle of legal cer- reasoning is uncovered only a few months after tainty and legitimate expectations. Having a uni- the ruling is not a valid argument against the curfied interpretation is a sought after feature of a le- rent, but rather an indication of the low perforgal system. The role of legal doctrine will actually mance of the observed legal system (i.e. Roma69
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DEVIL'S ADVOCATE increase. Ratione legis is just a manner of teleological interpretation, which can be programmed in an algorithm, as long as it is specifically applied to a certain norm. The AI should not interpret the law itself, based on principles as broad as ratione legis interpretation. Rather it should apply the law and accepted interpretations to the specifics of a case. While a second-degree court would become superfluous in a vast majority of cases, a second verification of the logical accuracy of the applied algorithms should be instituted. Furthermore, other evidence can be examined, and many issues that are addressed through extraordinary recourses can be addressed through an ordinary appeal. Even if legally trained human judges would scrutinize the decisions, their task would be considerably simplified, and the duration of the trial would be abridged. The premise that limited social and emotional intelligence would be an issue is quite debatable. It means that the system would be more objective. It is highly debatable if judges should let their subjective emotional appreciation eclipse actual legal provisions. For example, other evidence should contradict testimonies in order to be rendered nugatory. The judgeâ&#x20AC;&#x2122;s biased opinion on a person should not be seen as a legal tool. Concerning cybersecurity, such an issue would still be significantly less poignant that corruption and work- related criminality. Moreover, any person that tries to hack the system would still be subjected to justice. Finally, the only real risk would be an attack from a nation state actor, and those would be grave perpetrations of international law, that states will avoid, considering the consequences.
nian) regarding the work load of the judges. Additionally, I would like to direct the readers to the arguments I presented supra regarding hearings and appreciation of facts, and argue that these are processes which are going to be very difficult in a computerised system. With regard to the appeals procedure, it is hard to imagine that computers will not make mistakes, especially when we consider the complexity of the matters subject to analysis by the computer judges. As I pointed supra, it is unclear what remedies would be available for a party who identifies mistakes in a ruling. Moreover, it is unclear which entity would judge such an appeal, and why its judgement would be better than the previous one. Moreover, the statement overall cost would greatly decrease is based on the assumption that maintaining a computerised judicial system functional is not going to require costs. I beg to differ, as the system would need databases, improvement of its security, technicians, updates and so on. Finally, as explained above, the coldness of a machine is incompatible with imperfect legal norms, which are inevitable. As it has been shown, language is not logically perfect, therefore, a legal system based on language is not going to be logically perfect either, and would require interpretation. On the other hand, how would a computer apply contradictory provisions, i.e. interpret the law? In these situations, is the purpose of the law ever going to be achieved?
Moderatorâ&#x20AC;&#x2122;s Note: At this point, Cristian argues that problems such as the risk of non-jurists having issues accessing the system are not problems which are non-solvable or bigger than the ones the judicial system already has. He also states that a computerised system is based on algorithms, so explaining possible outcomes of a case will come very easily, because this is what those algorithms do: they crunch and compare data. Moreover, he consolidates his previous ideas, by pointing out that the lack of personal interpretation will lead to a more predictable and objective legal system, and if the only problem this system would have is the risk of cyberattacks, this is still less harmful and more inclined to be solved than corruption. On the other hand, Dorin points out that humans will still be needed in the system, meaning that corruption cannot fully disappear. He also raises the problem of computersâ&#x20AC;&#x2122; capabilities and our lack of methods of tracking down their possible biases, further indicating that current problems such as extremely long trials are not necessarily related to human judges. Finally, he restates his main arguments, revealing that the lack of an efficient appeal procedure in a computerised legal system (which is essentially built on something interpretable-language) could lead to mistakes that can remain undone. I hope this debate was a pleasure to read and it will help you form your own opinion! 70
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Closing Remarks Cristian Ioan: Bearing in mind all the legal arguments that were raised, I hold my belief that replacing both lawyers and judges with computerised systems would greatly improve the manner in which justice works. As I have previously mentioned, the system would be more equitable. Even when taking into consideration Dorin’s correct point that the cost of a functioning computerized judiciary would be hard to estimate, I find that the system would still be more accessible, as the cost of lawyering would decrease. Moreover, I find that having objective assessments concerning how the law is applied should be perceived as a desiderate, rather than an issue. Tracking back to the question on which the debate is constructed, we should bear in mind that it focuses only on judges and lawyers. Replacing them does not mean the justice system will no longer need humans. Rather, it means that the role of human implication in the process will change. This does not mean computers will determine the law. It only means that they will apply it, according to the rules that humans set, according to their social needs. Supervision of the system will be necessary. Indeed, changing the system we used for thousands of years is a big step. However, we should not fear change, as it is the motor of improving our society.
Dorin Giurgi: Firstly, when talking about the (i) replacement of lawyers, I find it unreasonable to imagine such a software that would understand non-legal terms and explanations, which are sometimes incomplete and incoherent, depending on the level of education of the person submitting the complaint. Secondly, when it comes to (ii) interpretation, I believe that once we accept that interpretation should be included in the legal norms, we would accept the idea of a case-by-case constructed legislation, trying to cover all the possible „misinterpretations”. Thirdly, regarding (iii) appeals, I argue that human judges would have the task of verifying the whole sentence, including the reasoning of the decision, basically having a similar role to the one they have today. Fourthly, concerning (iv) cyberattacks, I underline that these have the potential of causing greater damages through less effort than corruption. Furthermore, the (v) corruption issue, as I have shown, is not clear how will disappear, since humans will still be a great part of the judicial system. Moreover, in the matter of (vi) biases, I argued that bias in humans can be discovered and dismissed in time, while bias in computers (see above) can’t. Finally, in the matter of (vii) social and emotional intelligence, it cannot be said that the system would be more objective, but rather that it would not function properly, e.g. humans will pick non-verbal cues indicating that one witness is lying, while computers won’t.
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WE WOULD LIKE TO THANK ALL THOSE WHO CONTRIBUTED TO THIS EDITION: Ada Ionescu Cătălin Sabău Dino Pehlic Ivona Vidovic Krisztina Petra Gula
Máté Hodula Monika Martišková Šárka Šilhánková
We would like to extend special thanks to Cristian Ioan and Dorin Giurgi for their contribution to this edition’s debate, as well as to Mr. Adrian Ster and Dr. Péter Hack for answering our questions in the Professional Spotlight rubric. Also, a big thank you to all students who answered this issue's question. We would also like to express our profound gratitude to the former Managing Editors and their team, who made the last issues possible.
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