In the second part of the text the author looks into the paradox of the concept of justice as discerned by Jacques Derrida, & analyzes the tradition of the European constitutional law. Since the constitution & politics are discordant & semantically irritating mediums, the author argues that the European Union is an open semantic relationship of legal acquisitions & political processes. The European Union should be explained by means of contemporary, postmodernist theories derived from the linguistic & deconstructivist reversals of the modern substantial rationalism, universalism & cosmopolitism. Consequently, the constitution & the law are not underpinned by the political or any other specific power; on the contrary, it is the unspecific power of the constitution & the law that enables the gradual development & strengthening of the European law & the constitution without the extra constitutional authorities as the disguised power that traditionally legitimizes law. References. Adapted from the source document.
Europska konvencija za zaštitu ljudskih prava kao temeljni instrument Vijeća Europe za zaštitu građanskih i političkih prava ne jamči pravo na zdravstvenu zaštitu. Međutim, Europski sud za ljudska prava široko tumači Konvencijska prava te je unutar konteksta čl. 2., 3. i 8. Konvencije dao određene naznake da bi se mogao početi baviti i pitanjem zdravstvene zaštite. Bez ulaženja u detalje svih spomenutih članaka, u ovom radu bit će analizirani predmeti u kojima se Sud bavio pitanjem povrede čl. 3. zbog nepružanja zdravstvene skrbi i to izvan konteksta zadržavanja. Naime, unutar konteksta zadržavanja postoji jasna obveza državama na pružanje zdravstvene skrbi koju je Sud utvrdio djelomično se oslanjajući i na izvješća i Odbora za sprječavanje mučenja, neljudskog i ponižavajućeg ponašanja. Ono što smatramo značajnim istaknuti jest praksa Suda u odnosu na pružanje zdravstvene skrbi izvan konteksta zadržavanja, s obzirom na socijalni karakter prava na zdravstvenu zaštitu koji izlazi iz okvira građansko-političkog karaktera Konvencije. ; The European Convention on Human Rights, as a main Council of Europe instrument for the protection of civil and political rights, does not guarantee the right to health care. However, the European Court of Human Rights broadly interprets Convention rights, and within the context of Articles 2, 3 and 8 of the Convention it gave certain indications that it might start dealing with the issue of health care. Without going into details of all the mentioned articles, this paper will analyse cases where the Court dealt with the issue of violation of Article 3 due to non-provision of health care outside the context of detention. Namely, within the context of detention, there is a clear obligation for states to provide health care, and the Court often relies on the reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. What we consider important to point out is the Court's case-law on providing health care outside the context of detention, ...
The preliminary ruling procedure provided by Article 267 of the Treaty on the Functioning of the European Union is one of the forms of judicial cooperation between the courts of the Member States and the Court of Justice, which is intended to ensure the development of European Union law, verification of the validity of acts of the EU institutions and consistent interpretation and application of European Union law in all Member States. The aim of this master's thesis is to analyze in detail the elements of the preliminary ruling procedure and the changes and developments in this institute after the entry into force of the Treaty of Lisbon. After analysis of the case law of Court of Justice, current legal provisions and legal literature, it was concluded that after the entry into force of the Treaty of Lisbon, the extension of the jurisdiction of the Court of Justice has led to an increase in references from the courts of the Member States to the Court of Justice for a preliminary ruling, it shows the growing number of requests to the Court of Justice. Furthermore, the case law of the Court of Justice shows a less stringent and flexible application of the criteria, which exempt from the obligation to make a reference for a preliminary ruling. Although the Court of Justice tends to apply the criteria for exemptions from the obligation to make a reference to the Court of Justice more flexibly, at the same time the Court of Justice seeks to ensure effective implementation of EU law by obliging Member States to make references more frequently, when there is a high probability that the acte clair doctrine may be abused.
The preliminary ruling procedure provided by Article 267 of the Treaty on the Functioning of the European Union is one of the forms of judicial cooperation between the courts of the Member States and the Court of Justice, which is intended to ensure the development of European Union law, verification of the validity of acts of the EU institutions and consistent interpretation and application of European Union law in all Member States. The aim of this master's thesis is to analyze in detail the elements of the preliminary ruling procedure and the changes and developments in this institute after the entry into force of the Treaty of Lisbon. After analysis of the case law of Court of Justice, current legal provisions and legal literature, it was concluded that after the entry into force of the Treaty of Lisbon, the extension of the jurisdiction of the Court of Justice has led to an increase in references from the courts of the Member States to the Court of Justice for a preliminary ruling, it shows the growing number of requests to the Court of Justice. Furthermore, the case law of the Court of Justice shows a less stringent and flexible application of the criteria, which exempt from the obligation to make a reference for a preliminary ruling. Although the Court of Justice tends to apply the criteria for exemptions from the obligation to make a reference to the Court of Justice more flexibly, at the same time the Court of Justice seeks to ensure effective implementation of EU law by obliging Member States to make references more frequently, when there is a high probability that the acte clair doctrine may be abused.
The preliminary ruling procedure provided by Article 267 of the Treaty on the Functioning of the European Union is one of the forms of judicial cooperation between the courts of the Member States and the Court of Justice, which is intended to ensure the development of European Union law, verification of the validity of acts of the EU institutions and consistent interpretation and application of European Union law in all Member States. The aim of this master's thesis is to analyze in detail the elements of the preliminary ruling procedure and the changes and developments in this institute after the entry into force of the Treaty of Lisbon. After analysis of the case law of Court of Justice, current legal provisions and legal literature, it was concluded that after the entry into force of the Treaty of Lisbon, the extension of the jurisdiction of the Court of Justice has led to an increase in references from the courts of the Member States to the Court of Justice for a preliminary ruling, it shows the growing number of requests to the Court of Justice. Furthermore, the case law of the Court of Justice shows a less stringent and flexible application of the criteria, which exempt from the obligation to make a reference for a preliminary ruling. Although the Court of Justice tends to apply the criteria for exemptions from the obligation to make a reference to the Court of Justice more flexibly, at the same time the Court of Justice seeks to ensure effective implementation of EU law by obliging Member States to make references more frequently, when there is a high probability that the acte clair doctrine may be abused.
The preliminary ruling procedure provided by Article 267 of the Treaty on the Functioning of the European Union is one of the forms of judicial cooperation between the courts of the Member States and the Court of Justice, which is intended to ensure the development of European Union law, verification of the validity of acts of the EU institutions and consistent interpretation and application of European Union law in all Member States. The aim of this master's thesis is to analyze in detail the elements of the preliminary ruling procedure and the changes and developments in this institute after the entry into force of the Treaty of Lisbon. After analysis of the case law of Court of Justice, current legal provisions and legal literature, it was concluded that after the entry into force of the Treaty of Lisbon, the extension of the jurisdiction of the Court of Justice has led to an increase in references from the courts of the Member States to the Court of Justice for a preliminary ruling, it shows the growing number of requests to the Court of Justice. Furthermore, the case law of the Court of Justice shows a less stringent and flexible application of the criteria, which exempt from the obligation to make a reference for a preliminary ruling. Although the Court of Justice tends to apply the criteria for exemptions from the obligation to make a reference to the Court of Justice more flexibly, at the same time the Court of Justice seeks to ensure effective implementation of EU law by obliging Member States to make references more frequently, when there is a high probability that the acte clair doctrine may be abused.
The paper provides a detailed overview of the existing relationship between the just war theory & international law. It stresses the fact that the two concepts were historically incompatible. The just War theory falls within ethics & appeals to superior principles that were not in accordance with the positivist law theory & the concept of sovereignty upon which public international law was founded. That incompatibility may at first seem as a paradox since the two concepts should be derived from a common base: the idea of justice. Further development of international law has clearly proved that law cannot be separated from the idea of justice & that is, to some extent, closely linked to some elements of natural law. The author concludes that in the domain of the use of force contemporary international law provides a legal frame, which is in accordance with the precepts of the just war theory. References. Adapted from the source document.
In the introductory part of the essay, the author looks into the connection between the establishment & attributes of the so-called state of law & the legal system of continental Europe. This is followed by his summary of the origins of the idea of the state of law & its historical setting. In the middle part of the essay the author offers a list of values, value principles & the premises of the so-called state of law with the corresponding conclusions about a marked, multilevel/multiple restricted meaning & scope of the (mostly) dogmatic, formal/legal principles of the so-called state of law. The author concludes the essay with a rough appraisal of the condition of the so-called state of art in the Republic of Croatia. 51 References. Adapted from the source document.
The author suggests that the process of establishing a Croatian state based on law ought to differentiate varieties both on the diachronic & genetic level as well as on the synchronic & systematic level. He maintains that distinguishing different types of state based on law (absolute/sovereign, liberal, social) & their specific problems offers analytical possibilities for the theoretical definition of institutions & regulating mechanisms better able to solve the basic problems in the development of Croatian society & the Croatian state. 32 References. Adapted from the source document.
The article is devoted to the doctrine & practice of the Law of Treaties. The author focuses his attention on the following four topics: (l) the Treaties & third States or third international organizations; (2) the Treaties that provide rights for third States or third international organizations; (3) the Treaties that set out obligations for third States or third international organizations. He pays special attention to the most-favored-nation clause. The author gives interpretations of the Vienna Convention on the Law of Treaties 1969 & the Vienna Convention on the Law of Treaties between States & International Organizations or between International Organizations 1986. References. Adapted from the source document.
The author defines the state of law as a typical product of German political culture that corresponds to, but also differs from, both the experience of the English rule of law & that of the French l'Etat-Nation. The author pays particular attention to the issue of the legitimacy of the sate of law. He focuses on two different approaches to this issue in the works of Volker Gerhardt & Ernst Wolfgang Bockenford. Following a critical analysis of their fundamental assumptions the author goes on to divulge the thesis on the necessity of a balance between rights & power in the functioning of modern political systems. 5 References. Adapted from the source document.
The author looks into the position of the Constitutional Court in the light of the proposed Constitutional Law on amendments & modifications of the Constitutional Law on the Constitutional Court that would change some powers of the Constitutional Court. A short historical review shows that the Croatian people belong to the European civilizational setting, as evidenced by numerous documents & statutes that have regulated the rule of law in Croatia. According to the Croatian Constitution, the Constitutional Court is assigned a special place outside the system of the division of power into the legislative, the executive, & the judiciary; it is a special constitutional category that cannot be under the scrutiny of law since it scrutinizes laws. The author goes on to enumerate the changes in the jurisdiction & the operation of the Court envisaged in this new proposal of the Constitutional Law. The author concludes that constitutional courts are the very core of Western democracy & that they protect constitutions as a constantly developing living form. 59 References. Adapted from the source document.
Taking an action by the international community, individual states or their organizations with the aim of protecting citizens in some country from the tyranny of their own authorities has been defined as a humanitarian intervention. According to international law the use of power as an instrument in international relations is, however, prohibited & therefore, any approach to humanitarian intervention is stretched out between the challenges of moral responsibility & limitations of legislature. The subject of discussion in this article is the legislative aspect of humanitarian intervention by force. The research is focused on law & legitimating of humanitarian intervention by force without the United Nations Security Council approval. References. Adapted from the source document.
European Union allow private persons, by means of judicial protection measures, to defend their rights, which they derive from EC law, directly before the European Court of Justice (i.e. ECJ) as well as indirectly through the preliminary reference procedure; therefore, these persons should take advantage of such privilege, whenever they need that. Accordingly, one of the main objectives of this master thesis is to help individuals to perceive in a better way a core nature of the preliminary rulings procedure and call their attention to the fact, that they, being parties at particular case, pending before a national court, have a possibility through the Art. 234 of EC Treaty to influence the decision of the national judge. This is because, the preliminary reference is not any longer only a mean of ensuring uniform interpretation and application of EC law throughout the Member States, but also it is an indirect opportunity for private persons to access the European courts for protecting their rights. Thus, after shortly describing the main points of the preliminary reference mechanism, the greatest attention in this thesis is paid to one of the most important functions of this procedure – protection of the rights of persons. In order to reveal more clearly a significance of the preliminary ruling in the context of securing the interests of private persons, this thesis contains important up to date ECJ cases and data about the practice of the Member States, while applying Art. 234 of EC Treaty. Comparison of the preliminary reference procedure with other judicial protection remedies, stipulated in the EC Treaty, will contribute to understanding why preliminary rulings are considered of being one of possibilities and usually the only one for private persons to defend their rights, which were unlawfully violated. National courts through the preliminary reference procedure play a major role in protecting the interests of private persons. This mechanism of interplay, which occurs between EJC and the Member States' courts on the ground of preliminary reference, means that in fact the direct protection of private persons' interests is executed at the national court, performing the ECJ an indirect role together. Therefore, this master thesis analysis as well the capabilities of private persons to ensure the proper compliance of obligations under Art. 234 of EC Treaty by the courts of Member States.
European Union allow private persons, by means of judicial protection measures, to defend their rights, which they derive from EC law, directly before the European Court of Justice (i.e. ECJ) as well as indirectly through the preliminary reference procedure; therefore, these persons should take advantage of such privilege, whenever they need that. Accordingly, one of the main objectives of this master thesis is to help individuals to perceive in a better way a core nature of the preliminary rulings procedure and call their attention to the fact, that they, being parties at particular case, pending before a national court, have a possibility through the Art. 234 of EC Treaty to influence the decision of the national judge. This is because, the preliminary reference is not any longer only a mean of ensuring uniform interpretation and application of EC law throughout the Member States, but also it is an indirect opportunity for private persons to access the European courts for protecting their rights. Thus, after shortly describing the main points of the preliminary reference mechanism, the greatest attention in this thesis is paid to one of the most important functions of this procedure – protection of the rights of persons. In order to reveal more clearly a significance of the preliminary ruling in the context of securing the interests of private persons, this thesis contains important up to date ECJ cases and data about the practice of the Member States, while applying Art. 234 of EC Treaty. Comparison of the preliminary reference procedure with other judicial protection remedies, stipulated in the EC Treaty, will contribute to understanding why preliminary rulings are considered of being one of possibilities and usually the only one for private persons to defend their rights, which were unlawfully violated. National courts through the preliminary reference procedure play a major role in protecting the interests of private persons. This mechanism of interplay, which occurs between EJC and the Member States' courts on the ground of preliminary reference, means that in fact the direct protection of private persons' interests is executed at the national court, performing the ECJ an indirect role together. Therefore, this master thesis analysis as well the capabilities of private persons to ensure the proper compliance of obligations under Art. 234 of EC Treaty by the courts of Member States.
