Safeguarding the right to the truth has become crucial in dealing with systematic violations of human rights. Especially in contexts of transition to democracy, telling the truth is considered of utmost importance for fighting against impunity and promoting peace. Nevertheless, scholars have paid little attention to the judicial implementation of this right and, in particular, to the value of judicial protection of the right to the truth. The article aims to fill this gap by discussing the Juicios por la Verdad (the Truth Trials), a unique experience promoted by the Argentinian civil society in the wake of the military dictatorship. Specifically, it investigates the impact of the judicial recognition of the right to the truth on both the victims' lives and society's attempt to come to terms with the past. The analysis shows that the right to the truth may serve as a tool for knowledge, acknowledgment, strengthening the rule of law and, to an extent, for justice.
在处理有系统地侵犯人权的行为时，保障了解真相的权利已变得至关重要。特别是在向民主过渡的背景下，说实话被认为对打击有罪不罚现象和促进和平至关重要。然而，学者们对这一权利的司法实施，特别是对知情权的司法保护价值的关注却很少。本文旨在通过讨论“真相审判”(Juicios por la Verdad)来填补这一空白，这是阿根廷公民社会在军事独裁统治后推动的独特经历。具体而言，它调查了司法承认了解真相的权利对受害者生活和社会接受过去的努力的影响。分析表明，了解真相的权利可以作为了解、承认、加强法治以及在一定程度上促进正义的工具。
{"title":"The judicial implementation of the right to the truth: Some thoughts on the Argentinian experience of the Juicios por la Verdad","authors":"Chiara Chisari","doi":"10.5937/pravzap0-39985","DOIUrl":"https://doi.org/10.5937/pravzap0-39985","url":null,"abstract":"Safeguarding the right to the truth has become crucial in dealing with systematic violations of human rights. Especially in contexts of transition to democracy, telling the truth is considered of utmost importance for fighting against impunity and promoting peace. Nevertheless, scholars have paid little attention to the judicial implementation of this right and, in particular, to the value of judicial protection of the right to the truth. The article aims to fill this gap by discussing the Juicios por la Verdad (the Truth Trials), a unique experience promoted by the Argentinian civil society in the wake of the military dictatorship. Specifically, it investigates the impact of the judicial recognition of the right to the truth on both the victims' lives and society's attempt to come to terms with the past. The analysis shows that the right to the truth may serve as a tool for knowledge, acknowledgment, strengthening the rule of law and, to an extent, for justice.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71031755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the present paper, the autor provides a critical appraisal of Marko Božić's understanding of the principle of state secularity, defended in the previous issues of this journal. Firstly, the author critically examines the non-contestability thesis that is arguably held by Božić and argues that it raises the objection of conceptual imperialism. In the following sections, the author turns to Božić's extralegal theory (and concept) of secularity based upon the notion of "equality in freedoms". In particular, the author argues: (a) that the concept of secularity that Božić develops is inherently flawed in several important ways; (b) that an extralegal theory of secularity - that of Božić or anyone else - should not be considered a starting point when interpreting a constitutional principle of secularity; (c) that the concept of secularity that Božić develops is by no means a useful interpretative tool in virtue of the fact that it significantly departs from positive law.
{"title":"Secular state and religious neutrality","authors":"P. Mitrović","doi":"10.5937/pravzap0-37372","DOIUrl":"https://doi.org/10.5937/pravzap0-37372","url":null,"abstract":"In the present paper, the autor provides a critical appraisal of Marko Božić's understanding of the principle of state secularity, defended in the previous issues of this journal. Firstly, the author critically examines the non-contestability thesis that is arguably held by Božić and argues that it raises the objection of conceptual imperialism. In the following sections, the author turns to Božić's extralegal theory (and concept) of secularity based upon the notion of \"equality in freedoms\". In particular, the author argues: (a) that the concept of secularity that Božić develops is inherently flawed in several important ways; (b) that an extralegal theory of secularity - that of Božić or anyone else - should not be considered a starting point when interpreting a constitutional principle of secularity; (c) that the concept of secularity that Božić develops is by no means a useful interpretative tool in virtue of the fact that it significantly departs from positive law.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71031582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
If there is a reasonable suspicion that evidence of competition law infringement may be destroyed or altered, the Commission for Protection of Competition (CPC) is authorized to inspect market participants' premises, without prior notice or any court order or even an effective ex-post court control. Such an investigation may disrupt the market participants' activities and reduce their competitiveness, which is contrary to the key goals of the competition law. This paper analyzes sources of law for the unannounced investigation in the European Union (EU) competition law and Serbian law, as well as the practice of conducting unannounced investigations in EU member states and Serbia. Based on the findings, the conclusion is that Serbia should adopt, among others, amendments to the Law on Protection of Competition, and regulation defining CPC's powers and obligations, so that any differences in CPC's conduct in the same or similar cases are decreased through uniform application of competition law, competition is effectively protected and legal uncertainty for market participants, which is currently significantly higher than in the EU member states, is reduced.
{"title":"Dawn raids and (dis)proportionality between the powers and obligations of the Commission for Protection of Competition","authors":"B. Begović, Nikola Ilić","doi":"10.5937/pravzap0-36688","DOIUrl":"https://doi.org/10.5937/pravzap0-36688","url":null,"abstract":"If there is a reasonable suspicion that evidence of competition law infringement may be destroyed or altered, the Commission for Protection of Competition (CPC) is authorized to inspect market participants' premises, without prior notice or any court order or even an effective ex-post court control. Such an investigation may disrupt the market participants' activities and reduce their competitiveness, which is contrary to the key goals of the competition law. This paper analyzes sources of law for the unannounced investigation in the European Union (EU) competition law and Serbian law, as well as the practice of conducting unannounced investigations in EU member states and Serbia. Based on the findings, the conclusion is that Serbia should adopt, among others, amendments to the Law on Protection of Competition, and regulation defining CPC's powers and obligations, so that any differences in CPC's conduct in the same or similar cases are decreased through uniform application of competition law, competition is effectively protected and legal uncertainty for market participants, which is currently significantly higher than in the EU member states, is reduced.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71031350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper is dealing with authorities of the comunal militia, police and security services to collect information from citizens and legal persons. While the authorities of police and security services are based on willingness of giving information, at the same time the authorities of communal militia are based on obligingness of giving information. The person who does not provide requested information to communal policeman is warned by fine, which is unconditional (there is no legal reason for denial of information). The very request for giving information is exclusively based on resonable presumption of the communal policeman which is based on his discretionary power. In this paper the author also points out to certain lack of solutions in the legal provisions of the Law on Police which determine the authorities of the police to collect information, as well the authorities to invite persons for police interview in order to request information which is differently set up in regard to the Law on Criminal Procedure. In the conclusion it is emphasised that regulations of the Law on Communal Militia and the Law on Police give broader discretionary power to police officers what is not in accordance with the rule of law. Also, the punishment for denial of giving information to communal militia is not in accordance with the Constitution and with fundamental human rights, as well analised examples show the obvious weakness of legal process and consitutional control of law.
{"title":"Denial of information to the officer of the communal militia, police and security services: Between punishment and non-punishment","authors":"B. Milosavljević","doi":"10.5937/pravzap0-40270","DOIUrl":"https://doi.org/10.5937/pravzap0-40270","url":null,"abstract":"The paper is dealing with authorities of the comunal militia, police and security services to collect information from citizens and legal persons. While the authorities of police and security services are based on willingness of giving information, at the same time the authorities of communal militia are based on obligingness of giving information. The person who does not provide requested information to communal policeman is warned by fine, which is unconditional (there is no legal reason for denial of information). The very request for giving information is exclusively based on resonable presumption of the communal policeman which is based on his discretionary power. In this paper the author also points out to certain lack of solutions in the legal provisions of the Law on Police which determine the authorities of the police to collect information, as well the authorities to invite persons for police interview in order to request information which is differently set up in regard to the Law on Criminal Procedure. In the conclusion it is emphasised that regulations of the Law on Communal Militia and the Law on Police give broader discretionary power to police officers what is not in accordance with the rule of law. Also, the punishment for denial of giving information to communal militia is not in accordance with the Constitution and with fundamental human rights, as well analised examples show the obvious weakness of legal process and consitutional control of law.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"47 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71031855","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article explores constitutional transitions from the viewpoint of three explanatory and ordering paradigms proposed by the author. These are Westphalian constitutionalism, post-Westphalian constitutionalism and neo-Westphalian constitutionalism. The analysis focusses on the crisis of the two main paradigms of Westphalian Modernity - the territoriality of power and the hierarchy having projections on constitutional supremacy and political sovereignty. It explores how these two main forms of Westphalian constitutional geometry are challenged by globalism and neo-regionalism. The paper revolves around the metamorphoses of the pillars of constitutionalism in the context of globalization, as a holistic and universal project that has been unfolding in recent decades, and the current trends toward redefining globalization in terms of global regionalism and post-territorial technocratic governance.
{"title":"Three models for ordering constitutional orders","authors":"M. Belov","doi":"10.5937/pravzap0-40290","DOIUrl":"https://doi.org/10.5937/pravzap0-40290","url":null,"abstract":"The article explores constitutional transitions from the viewpoint of three explanatory and ordering paradigms proposed by the author. These are Westphalian constitutionalism, post-Westphalian constitutionalism and neo-Westphalian constitutionalism. The analysis focusses on the crisis of the two main paradigms of Westphalian Modernity - the territoriality of power and the hierarchy having projections on constitutional supremacy and political sovereignty. It explores how these two main forms of Westphalian constitutional geometry are challenged by globalism and neo-regionalism. The paper revolves around the metamorphoses of the pillars of constitutionalism in the context of globalization, as a holistic and universal project that has been unfolding in recent decades, and the current trends toward redefining globalization in terms of global regionalism and post-territorial technocratic governance.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71031897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Još jednom o ustavnoj sekularnosti - odgovor Marku Božiću","authors":"Srđan Milošević","doi":"10.5937/pravzap2201305m","DOIUrl":"https://doi.org/10.5937/pravzap2201305m","url":null,"abstract":"","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71032687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Responsible research and innovation (RRI) is a mode of research, development and innovation (RDI) governance which has proliferated primarily in European states with a tradition and/or culture of participatory and deliberative technology governance. It assumes the existence of open, transparent and accessible policy-making processes, and a culture of responsibility and accountability in government and in the private domain. In Hungary, where RDI is supposed to be the key to economic competitiveness, RRI has never taken root. Examining the regulation of the Hungarian RDI system, it becomes clear that there is a significant degree of institutional incompatibility with the solutions promoted by RRI. More significantly, the contemporary system of government and administration and the prevailing model of policy-making and governance prevent or exclude deliberately the implementation of RRI.
{"title":"Responsible research and innovation (RRI) in Hungary: A Western model, an Eastern illiberal regime, and a case of deferred institutional adaptation","authors":"Márton Varju","doi":"10.5937/pravzap0-31393","DOIUrl":"https://doi.org/10.5937/pravzap0-31393","url":null,"abstract":"Responsible research and innovation (RRI) is a mode of research, development and innovation (RDI) governance which has proliferated primarily in European states with a tradition and/or culture of participatory and deliberative technology governance. It assumes the existence of open, transparent and accessible policy-making processes, and a culture of responsibility and accountability in government and in the private domain. In Hungary, where RDI is supposed to be the key to economic competitiveness, RRI has never taken root. Examining the regulation of the Hungarian RDI system, it becomes clear that there is a significant degree of institutional incompatibility with the solutions promoted by RRI. More significantly, the contemporary system of government and administration and the prevailing model of policy-making and governance prevent or exclude deliberately the implementation of RRI.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71030563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The main objective of this paper is to critically assess the dominant additive theory of the formation of Customary International Law by using the concept of discursive normative practice and the work of Gerald Postema. My central conclusion is that the use of this concept provides an explanation of the process of formation of Customary International Law that is superior to the additive theory which consists of two elements - practice and opinio juris. On the other hand, Postema's theory also has its own weaknesses, and this paper explores ways to improve it.
{"title":"Nature of Customary international law: All we need is practice","authors":"Miloš Hrnjaz","doi":"10.5937/pravzap0-34452","DOIUrl":"https://doi.org/10.5937/pravzap0-34452","url":null,"abstract":"The main objective of this paper is to critically assess the dominant additive theory of the formation of Customary International Law by using the concept of discursive normative practice and the work of Gerald Postema. My central conclusion is that the use of this concept provides an explanation of the process of formation of Customary International Law that is superior to the additive theory which consists of two elements - practice and opinio juris. On the other hand, Postema's theory also has its own weaknesses, and this paper explores ways to improve it.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71031218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Faced with the Covid-19 pandemic, countries around the globe responded with a wide range of special measures. Whereas some of them resorted to their constitutional emergency rules, others opted to act through legislation. The author argues that the effects of the legislative approach to the epidemic in Croatia actually resemble the state of an emergency in the proper sense of the word, although the authorities try to present the whole case as a situation of "legal normalcy". More precisely, the author claims that in practice the adopted model produces concentration of power in the executive branch far beyond what one could expect in ordinary times. To prove that, the author analyses the Croatian legal anti-epidemic framework through several elements (declaration of emergency, law-making powers, overview of executive emergency actions, parliamentary sittings). Finally, the author argues that the constitutional state of natural disaster in Croatia should have been proclaimed.
{"title":"\"Business as unusual\": Pandemic concentration of executive powers in Croatia","authors":"Đorđe Gardašević","doi":"10.5937/pravzap0-32129","DOIUrl":"https://doi.org/10.5937/pravzap0-32129","url":null,"abstract":"Faced with the Covid-19 pandemic, countries around the globe responded with a wide range of special measures. Whereas some of them resorted to their constitutional emergency rules, others opted to act through legislation. The author argues that the effects of the legislative approach to the epidemic in Croatia actually resemble the state of an emergency in the proper sense of the word, although the authorities try to present the whole case as a situation of \"legal normalcy\". More precisely, the author claims that in practice the adopted model produces concentration of power in the executive branch far beyond what one could expect in ordinary times. To prove that, the author analyses the Croatian legal anti-epidemic framework through several elements (declaration of emergency, law-making powers, overview of executive emergency actions, parliamentary sittings). Finally, the author argues that the constitutional state of natural disaster in Croatia should have been proclaimed.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71030593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper, the author considers issues related to the pre-contractual obligation of the insurance policyholder to report to the insurer circumstances significant for the risk assessment. The aim of this paper is to compare the provisions of the The Law on Contract and Torts (LCT), proposals for changes in Serbian law envisaged in the Preliminary Draft of the Civil Code of the Republic of Serbia with solutions from comparative law and the provisions of the Principles of European Insurance Contract Law (PEICL). The analysis showed that it is necessary to update the solutions from the LCT and that the proposed changes, in terms of special rules regarding the obligation to report circumstances relevant to risk assessment to the insurer, are largely in line with modern solutions in comparative law and PEICL. The author points out that the proposed solutions can be supplemented and improved.
{"title":"Disclosure duties in insurance contract","authors":"B. Ivančević","doi":"10.5937/pravzap0-31897","DOIUrl":"https://doi.org/10.5937/pravzap0-31897","url":null,"abstract":"In this paper, the author considers issues related to the pre-contractual obligation of the insurance policyholder to report to the insurer circumstances significant for the risk assessment. The aim of this paper is to compare the provisions of the The Law on Contract and Torts (LCT), proposals for changes in Serbian law envisaged in the Preliminary Draft of the Civil Code of the Republic of Serbia with solutions from comparative law and the provisions of the Principles of European Insurance Contract Law (PEICL). The analysis showed that it is necessary to update the solutions from the LCT and that the proposed changes, in terms of special rules regarding the obligation to report circumstances relevant to risk assessment to the insurer, are largely in line with modern solutions in comparative law and PEICL. The author points out that the proposed solutions can be supplemented and improved.","PeriodicalId":53056,"journal":{"name":"Pravni Zapisi","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71030787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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