Magazine et Edition

Volume 14 (2021): Edition 2 (December 2021)

Volume 14 (2021): Edition 1 (June 2021)

Volume 13 (2020): Edition 2 (December 2020)

Volume 13 (2020): Edition 1 (June 2020)

Volume 12 (2019): Edition 2 (December 2019)

Volume 12 (2019): Edition 1 (June 2019)

Volume 11 (2018): Edition 2 (December 2018)

Volume 11 (2018): Edition 1 (June 2018)

Volume 10 (2017): Edition 2 (December 2017)

Volume 10 (2017): Edition 1 (June 2017)

Volume 9 (2016): Edition 2 (December 2016)

Volume 9 (2016): Edition 1 (June 2016)

Volume 8 (2015): Edition 2 (December 2015)

Volume 8 (2015): Edition 1 (June 2015)

Volume 7 (2014): Edition 2 (December 2014)

Volume 7 (2014): Edition 1 (June 2014)

Volume 6 (2013): Edition 2 (December 2013)

Volume 6 (2013): Edition 1 (June 2013)

Volume 5 (2012): Edition 2 (December 2012)

Volume 5 (2012): Edition 1 (June 2012)

Volume 4 (2011): Edition 2 (December 2011)

Volume 4 (2011): Edition 1 (June 2011)

Volume 3 (2010): Edition 2 (December 2010)
The Problem of the State of Exception

Volume 3 (2010): Edition 1 (June 2010)

Volume 2 (2009): Edition 2 (December 2009)

Volume 2 (2009): Edition 1 (June 2009)

Volume 1 (2008): Edition 1 (December 2008)

Détails du magazine
Format
Magazine
eISSN
2029-0454
Première publication
05 Feb 2009
Période de publication
2 fois par an
Langues
Anglais

Chercher

Volume 14 (2021): Edition 1 (June 2021)

Détails du magazine
Format
Magazine
eISSN
2029-0454
Première publication
05 Feb 2009
Période de publication
2 fois par an
Langues
Anglais

Chercher

7 Articles
Accès libre

Individual Prevention in Criminal Procedure

Publié en ligne: 08 Oct 2021
Pages: 1 - 21

Résumé

Abstract

This article explores the possibility of using criminal procedure and its measures for individual prevention of crime. The author tries to look at criminal procedure in an abstract way, not focusing on any concrete legal system. It is argued that the criminal process is traditionally reactive and this should not change. However, some measures of criminal procedure (arrest, pretrial detention, house arrest, suspension of driving licence, suspension at work) may be used as instruments of individual prevention when they are the best or only measures available and their application will not prejudice the case against the accused. Their use must be accompanied by relevant safeguards and allowed only if necessary and proportional.

Mots clés

  • Prevention
  • criminal procedure
  • preventive measures
  • risk
  • human rights
Accès libre

Hate Crimes: Evaluation of Lithuanian Courts’ Decisions in the Light of the Practice of the European Court of Human Rights

Publié en ligne: 08 Oct 2021
Pages: 22 - 47

Résumé

Abstract

In this article, the authors analyse the practice of the Lithuanian national courts and the European Court of Human Rights in hate crime cases, provide insights into the synergy between the decisions made by these courts, and suggest further improvement actions. This research shows that proving the circumstances surrounding various forms of hatred is quite complex, often lacking a more comprehensive, in-depth definition of the totality of circumstances by taking account of the need for special knowledge, the identification of guilt, and the system and intensity of actions. There is often a divide between criminal liability and the possibility of other countermeasures, especially when examining cases related to hate speech. Court decisions draw attention to the fact that it is necessary to consider the totality of the data collected, not individual data or individual fragments of circumstances. Among other things, the decisions emphasize the ultima ratio principle: whether criminal liability is an adequate measure in cases of hate speech. The topical issues examined in the article draw attention to the collection of significant data and the organization of investigations of these crimes, issues relating to proof and the emerging practice of the European Court of Human Rights and the Supreme Court of the Republic of Lithuania in this category of cases, highlighting the two main problematic aspects: first, the determination of the totality of objective and subjective features and second, the fact of identifying a real threat.

Mots clés

  • Hate Crime
  • Hate Speech
  • Lithuanian Courts’ Practice
  • European Court of Human Rights’ Practice
Accès libre

Diasporic Politics and Defining Diaspora in Law: The Case of Latvia

Publié en ligne: 08 Oct 2021
Pages: 48 - 72

Résumé

Abstract

Passage of the Diaspora Law of Latvia required policymakers to go through an arduous process of discussing the limitations of diaspora, weighing the potential risks and benefits of various possible approaches, and ultimately agreeing on a definition to be included in the law. The end result was a very broad interpretation of who can be recognized as part of the Latvian diaspora. In this paper, to understand the political process of arriving at a definition, the theoretical perspectives of the ‘narrow’ and ‘broad’ definitions of diaspora are discussed, the motivations driving national governments to engage with their diasporas are analysed, and the discourse used during the drafting process is reviewed.

Mots clés

  • Diaspora
  • diaspora politics
  • Latvia
  • diaspora law
  • diaspora definition
  • diaspora policy
Accès libre

Russia's ‘Sharp Power’ Manifestations in Lithuania's Mass Media

Publié en ligne: 08 Oct 2021
Pages: 73 - 102

Résumé

Abstract

The concept of ‘sharp power’ has recently emerged as a reaction to the assertiveness of authoritarian regimes. It serves to underline the complexity of challenges which are posed by authoritarian regimes, referring to diverse front lines in the overall ‘battle’, be they culture, education, or the media. The latter, according to Dmitri Trenin, “has become such a crowded battlefield”. This paper attempts to fill in the information gap regarding Russia’s ‘sharp power’ manifestations in Lithuania’s mass media and focuses on NATO related messages in particular. The paper presupposes that messages which evoke an air of support for Russia’s foreign and security policy tend to pass through to Lithuania’s mass media, and argues that, as a result of the insufficient activity by Lithuania’s mass media in terms of forming an independent perception of Russia vis-à-vis NATO, the preconditions for possible manifestations of Russia’s use of sharp power are therefore created. The article is organised into four parts. The first section sets out a theoretical framework for the analysis which focuses on the concept of sharp power. Then the research methodology is outlined. The third section presents features of the informational environment of Lithuania in 2016 and 2019. The final, and most elaborated, section investigates messages which apparently serve to support Russia’s foreign and security policy in terms of the NATO‘s topic in Lithuania’s mass media based on the aforementioned criteria.

Mots clés

  • Russia
  • sharp power
  • Lithuania
  • mass media
Accès libre

Pandemics in Cyberspace – Empire in Search of a Sovereign?

Publié en ligne: 08 Oct 2021
Pages: 103 - 123

Résumé

Abstract

Traditionally, the idea of a sovereign is being connected either with an absolutist ruler (later replaced by “the people”) at the national level, or the nation-state at the international level – at least in the conditions of the Westphalian system created in 1648. Today, on the contrary, we are witnessing a “post-” situation in many respects – post-modernism, post-positivism, but also post-statism – basically being a sort of return to the pre-Westphalian system (see Ondrej Hamuľák, “Lessons from the ‘Constitutional Mythology’ or How to Reconcile the Concept of State Sovereignty with European Integration,” DANUBE: Law, Economics and Social Issues Review Vol. 6, No. 2 (2015); or Danuta Kabat-Rudnicka, “Autonomy or Sovereignty: the Case of the European Union,” International and Comparative Law Review Vol. 20, No. 2 (2020)). However, paternalistic views, prevailing especially in times of crisis and uncertainty, desperately search for a sovereign to lead us from the crises. With regard to cyberattacks and insecurity in the cyberspace this means an effort to subordinate cyberspace to state sovereignty. Still, given the limitations of traditional state-based monopolies of power and legislation, the state as an “analogue sovereign” shrinks in the digital cyberspace rather to a co-sovereign, co-ordinator, or in feudal terms a “senior” vis-à-vis their vassals. The actual ensuring of the tasks of state as a “digital sovereign” is namely often being entrusted to non-state (essentially private-owned) entities, under the threat of legal sanctions. The current situation of constructing “digital sovereignty” of traditional states or of the EU is thus marked by the necessity of cooperation between the state power and those non-state entities which are falling under its analogue jurisdiction.

Mots clés

  • Digital sovereignty
  • stateless society
  • cyber-paternalism
  • shared sovereignty
Accès libre

The Price of Medical Negligence – Should it Be Judged by the Criminal Court in the Context of the Jurisprudence of the European Court of Human Rights?

Publié en ligne: 08 Oct 2021
Pages: 124 - 152

Résumé

Abstract

The article deals with a recently relevant issue – whether a doctor who has made an error or was negligent during his or her professional activity that has resulted in injury or death should be prosecuted, whether this type of liability is not too strict, and whether it is proportionate and adequate to the specificities of the medical profession. From the point of view of criminal justice in Lithuania, this topic has not been investigated at all. The courts hear such criminal cases without any exceptions for doctors. However, in an international level, the judgments of the European Court of Human Rights or investigations in other states suggest that criminal liability is not always a binding legal consequence in such cases. After having analysed and summarised the case-law of the said court, by taking into account the insights of foreign authors, the danger of medical error and ultima ratio principle, the author raises the idea that the current practice in civil medical negligence when doctors are prosecuted for simple negligence should be changed.

Mots clés

  • Medical negligence
  • gross medical negligence
  • medical error
  • criminal liability
Accès libre

Internal Migration of Workers in the European Union: Legal Aspects of Lithuania’s Experience in Transposing the Posting of Workers Directive

Publié en ligne: 08 Oct 2021
Pages: 153 - 180

Résumé

Abstract

Freedom to provide services and free movement of workers are linked to the processes of permanent intra-EU migration, which are regulated, inter alia, by the national legislation implementing PWD. Consequently, the posting of workers within EU is not only part of the work organization process, but also part of a wider phenomenon of internal migration of workers. Accordingly, posted workers are to be considered as internal labour migrants. The regulation of the posting of workers must consider the legitimate interest of Member States in protecting their markets from social dumping as well as ensure minimum guarantees for posted workers. These circumstances presuppose changes in the regulation of the posting of workers. This article identifies four stages in the transposition of PWD into Lithuanian national law that are causally related to changes in European legislation and Lithuanian labour law reform as of 2017. It presents the legal assessment of national legal regulation and case law, identifying the related legal problems. The article pays special attention to the legal regulation of the remuneration of a posted worker, established by PWD (Directive 96/71/EC of the European Parliament and of the Council on 16 December 1996 concerning the posting of workers in the framework of the provision of services (Official Journal (EU), 2004, no. L 18) [Directive 96/71/EC], with the amendments introduced by Directive 2014/67/EU of the European Parliament and of the Council from 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Revision 4 of the EU Posting of Workers Directive Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (Official Journal (EU), 2014, no. L 159) [Directive 2014/67/EU] and Directive 2018/957/EU of the European Parliament and of the Council on June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (Official Journal (EU), 2018, no. L 173) [Directive 2018/957/EU]). It also explains the impact on the regulation of employment relations for posted workers in Lithuania stemming from Directive 2019/1152 on transparent and predictable working conditions in the EU.

Mots clés

  • Internal migration of workers
  • internal labour migrants
  • the posting of workers
  • allowances specific to posting
  • daily allowances
  • application of PWD and Directive 2019/1152
7 Articles
Accès libre

Individual Prevention in Criminal Procedure

Publié en ligne: 08 Oct 2021
Pages: 1 - 21

Résumé

Abstract

This article explores the possibility of using criminal procedure and its measures for individual prevention of crime. The author tries to look at criminal procedure in an abstract way, not focusing on any concrete legal system. It is argued that the criminal process is traditionally reactive and this should not change. However, some measures of criminal procedure (arrest, pretrial detention, house arrest, suspension of driving licence, suspension at work) may be used as instruments of individual prevention when they are the best or only measures available and their application will not prejudice the case against the accused. Their use must be accompanied by relevant safeguards and allowed only if necessary and proportional.

Mots clés

  • Prevention
  • criminal procedure
  • preventive measures
  • risk
  • human rights
Accès libre

Hate Crimes: Evaluation of Lithuanian Courts’ Decisions in the Light of the Practice of the European Court of Human Rights

Publié en ligne: 08 Oct 2021
Pages: 22 - 47

Résumé

Abstract

In this article, the authors analyse the practice of the Lithuanian national courts and the European Court of Human Rights in hate crime cases, provide insights into the synergy between the decisions made by these courts, and suggest further improvement actions. This research shows that proving the circumstances surrounding various forms of hatred is quite complex, often lacking a more comprehensive, in-depth definition of the totality of circumstances by taking account of the need for special knowledge, the identification of guilt, and the system and intensity of actions. There is often a divide between criminal liability and the possibility of other countermeasures, especially when examining cases related to hate speech. Court decisions draw attention to the fact that it is necessary to consider the totality of the data collected, not individual data or individual fragments of circumstances. Among other things, the decisions emphasize the ultima ratio principle: whether criminal liability is an adequate measure in cases of hate speech. The topical issues examined in the article draw attention to the collection of significant data and the organization of investigations of these crimes, issues relating to proof and the emerging practice of the European Court of Human Rights and the Supreme Court of the Republic of Lithuania in this category of cases, highlighting the two main problematic aspects: first, the determination of the totality of objective and subjective features and second, the fact of identifying a real threat.

Mots clés

  • Hate Crime
  • Hate Speech
  • Lithuanian Courts’ Practice
  • European Court of Human Rights’ Practice
Accès libre

Diasporic Politics and Defining Diaspora in Law: The Case of Latvia

Publié en ligne: 08 Oct 2021
Pages: 48 - 72

Résumé

Abstract

Passage of the Diaspora Law of Latvia required policymakers to go through an arduous process of discussing the limitations of diaspora, weighing the potential risks and benefits of various possible approaches, and ultimately agreeing on a definition to be included in the law. The end result was a very broad interpretation of who can be recognized as part of the Latvian diaspora. In this paper, to understand the political process of arriving at a definition, the theoretical perspectives of the ‘narrow’ and ‘broad’ definitions of diaspora are discussed, the motivations driving national governments to engage with their diasporas are analysed, and the discourse used during the drafting process is reviewed.

Mots clés

  • Diaspora
  • diaspora politics
  • Latvia
  • diaspora law
  • diaspora definition
  • diaspora policy
Accès libre

Russia's ‘Sharp Power’ Manifestations in Lithuania's Mass Media

Publié en ligne: 08 Oct 2021
Pages: 73 - 102

Résumé

Abstract

The concept of ‘sharp power’ has recently emerged as a reaction to the assertiveness of authoritarian regimes. It serves to underline the complexity of challenges which are posed by authoritarian regimes, referring to diverse front lines in the overall ‘battle’, be they culture, education, or the media. The latter, according to Dmitri Trenin, “has become such a crowded battlefield”. This paper attempts to fill in the information gap regarding Russia’s ‘sharp power’ manifestations in Lithuania’s mass media and focuses on NATO related messages in particular. The paper presupposes that messages which evoke an air of support for Russia’s foreign and security policy tend to pass through to Lithuania’s mass media, and argues that, as a result of the insufficient activity by Lithuania’s mass media in terms of forming an independent perception of Russia vis-à-vis NATO, the preconditions for possible manifestations of Russia’s use of sharp power are therefore created. The article is organised into four parts. The first section sets out a theoretical framework for the analysis which focuses on the concept of sharp power. Then the research methodology is outlined. The third section presents features of the informational environment of Lithuania in 2016 and 2019. The final, and most elaborated, section investigates messages which apparently serve to support Russia’s foreign and security policy in terms of the NATO‘s topic in Lithuania’s mass media based on the aforementioned criteria.

Mots clés

  • Russia
  • sharp power
  • Lithuania
  • mass media
Accès libre

Pandemics in Cyberspace – Empire in Search of a Sovereign?

Publié en ligne: 08 Oct 2021
Pages: 103 - 123

Résumé

Abstract

Traditionally, the idea of a sovereign is being connected either with an absolutist ruler (later replaced by “the people”) at the national level, or the nation-state at the international level – at least in the conditions of the Westphalian system created in 1648. Today, on the contrary, we are witnessing a “post-” situation in many respects – post-modernism, post-positivism, but also post-statism – basically being a sort of return to the pre-Westphalian system (see Ondrej Hamuľák, “Lessons from the ‘Constitutional Mythology’ or How to Reconcile the Concept of State Sovereignty with European Integration,” DANUBE: Law, Economics and Social Issues Review Vol. 6, No. 2 (2015); or Danuta Kabat-Rudnicka, “Autonomy or Sovereignty: the Case of the European Union,” International and Comparative Law Review Vol. 20, No. 2 (2020)). However, paternalistic views, prevailing especially in times of crisis and uncertainty, desperately search for a sovereign to lead us from the crises. With regard to cyberattacks and insecurity in the cyberspace this means an effort to subordinate cyberspace to state sovereignty. Still, given the limitations of traditional state-based monopolies of power and legislation, the state as an “analogue sovereign” shrinks in the digital cyberspace rather to a co-sovereign, co-ordinator, or in feudal terms a “senior” vis-à-vis their vassals. The actual ensuring of the tasks of state as a “digital sovereign” is namely often being entrusted to non-state (essentially private-owned) entities, under the threat of legal sanctions. The current situation of constructing “digital sovereignty” of traditional states or of the EU is thus marked by the necessity of cooperation between the state power and those non-state entities which are falling under its analogue jurisdiction.

Mots clés

  • Digital sovereignty
  • stateless society
  • cyber-paternalism
  • shared sovereignty
Accès libre

The Price of Medical Negligence – Should it Be Judged by the Criminal Court in the Context of the Jurisprudence of the European Court of Human Rights?

Publié en ligne: 08 Oct 2021
Pages: 124 - 152

Résumé

Abstract

The article deals with a recently relevant issue – whether a doctor who has made an error or was negligent during his or her professional activity that has resulted in injury or death should be prosecuted, whether this type of liability is not too strict, and whether it is proportionate and adequate to the specificities of the medical profession. From the point of view of criminal justice in Lithuania, this topic has not been investigated at all. The courts hear such criminal cases without any exceptions for doctors. However, in an international level, the judgments of the European Court of Human Rights or investigations in other states suggest that criminal liability is not always a binding legal consequence in such cases. After having analysed and summarised the case-law of the said court, by taking into account the insights of foreign authors, the danger of medical error and ultima ratio principle, the author raises the idea that the current practice in civil medical negligence when doctors are prosecuted for simple negligence should be changed.

Mots clés

  • Medical negligence
  • gross medical negligence
  • medical error
  • criminal liability
Accès libre

Internal Migration of Workers in the European Union: Legal Aspects of Lithuania’s Experience in Transposing the Posting of Workers Directive

Publié en ligne: 08 Oct 2021
Pages: 153 - 180

Résumé

Abstract

Freedom to provide services and free movement of workers are linked to the processes of permanent intra-EU migration, which are regulated, inter alia, by the national legislation implementing PWD. Consequently, the posting of workers within EU is not only part of the work organization process, but also part of a wider phenomenon of internal migration of workers. Accordingly, posted workers are to be considered as internal labour migrants. The regulation of the posting of workers must consider the legitimate interest of Member States in protecting their markets from social dumping as well as ensure minimum guarantees for posted workers. These circumstances presuppose changes in the regulation of the posting of workers. This article identifies four stages in the transposition of PWD into Lithuanian national law that are causally related to changes in European legislation and Lithuanian labour law reform as of 2017. It presents the legal assessment of national legal regulation and case law, identifying the related legal problems. The article pays special attention to the legal regulation of the remuneration of a posted worker, established by PWD (Directive 96/71/EC of the European Parliament and of the Council on 16 December 1996 concerning the posting of workers in the framework of the provision of services (Official Journal (EU), 2004, no. L 18) [Directive 96/71/EC], with the amendments introduced by Directive 2014/67/EU of the European Parliament and of the Council from 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Revision 4 of the EU Posting of Workers Directive Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (Official Journal (EU), 2014, no. L 159) [Directive 2014/67/EU] and Directive 2018/957/EU of the European Parliament and of the Council on June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (Official Journal (EU), 2018, no. L 173) [Directive 2018/957/EU]). It also explains the impact on the regulation of employment relations for posted workers in Lithuania stemming from Directive 2019/1152 on transparent and predictable working conditions in the EU.

Mots clés

  • Internal migration of workers
  • internal labour migrants
  • the posting of workers
  • allowances specific to posting
  • daily allowances
  • application of PWD and Directive 2019/1152

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