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Détails du magazine
Format
Magazine
eISSN
1857-8462
Première publication
01 Jul 2005
Période de publication
2 fois par an
Langues
Anglais

Chercher

Volume 11 (2015): Edition 1 (December 2015)

Détails du magazine
Format
Magazine
eISSN
1857-8462
Première publication
01 Jul 2005
Période de publication
2 fois par an
Langues
Anglais

Chercher

23 Articles
Accès libre

Foreword

Publié en ligne: 13 Jan 2016
Pages: 1 - 1

Résumé

Accès libre

Importance Of Magna Carta For Global Democratic Trends At A Conference In Macedonia

Publié en ligne: 13 Jan 2016
Pages: 2 - 2

Résumé

Accès libre

A ‘Charter Of Liberties’: Is Refusing The ‘Right To Die’ A Failure To Maintain The Spirit Of Magna Carta?

Publié en ligne: 13 Jan 2016
Pages: 3 - 15

Résumé

Accès libre

Remarks On The 800th Anniversary Of Magna Carta

Publié en ligne: 13 Jan 2016
Pages: 16 - 17

Résumé

Accès libre

Normative And Practical Challenges Of The Republic Of Macedonia In The Application Of The Right To A Fair Trial Principle

Publié en ligne: 13 Jan 2016
Pages: 18 - 27

Résumé

Accès libre

Interpretation Of “Equality Of Arms” In Jurisprudence Of AD Hoc Tribunals And ICC

Publié en ligne: 13 Jan 2016
Pages: 28 - 39

Résumé

Abstract

Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair.

There are differences between interpretation and implementation of equality of arms in the jurisprudence of European court on human rights (ECtHR) and international criminal courts (ICTY, ICTR and ICC). Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties.

When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused.

Accès libre

From Magna Carta To The Contemporary System Of Financial Penalties In The Criminal Law

Publié en ligne: 13 Jan 2016
Pages: 40 - 47

Résumé

Abstract

Magna Carta Libertatum or the Great Charter of the Liberties is a historical document of great significance for the constitutional history and human rights and liberties development. Although at its initial version it addressed a limited number of liberties and principles, it represented a solid foundation for the evolution of the principles of the rule of law, right to justice, right to a fair trial, just and reasonable sentencing, limitation of powers, etc.

Namely, article 20 of the Charter states: A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his “contenement”; and a merchant in the same way, saving his “merchandise”; and a villein shall be amerced in the same way, saving his “wainage” if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood.

An analysis of this article undoubtedly leads us to the basic principles of the contemporary systems of fine, namely the daily-fine system introduced in the Macedonian Criminal Code in 2004 according to which the fine will be calculated and pronounced according to the gravity of the offence and the financial state and condition of the perpetrator. As one can notice, the gravity of the offence and the saving of the perpetrators “contenement” from the abovementioned article of the Great Charter refer to the aforesaid principles.

In this article, a comparison will be made on the meaning of the term “amercement” and its similarities and differences with the modern financial penalties and measures in the criminal law from comparative perspective, to find which one corresponds to the latter: fine, assets forfeiture or compensation of damages made with the criminal offence.

Accès libre

Relevance Of Magna Carta To Rights Of Victims Of Abuse Of Power

Publié en ligne: 13 Jan 2016
Pages: 48 - 58

Résumé

Abstract

Magna Carta Libertatum is one of the few documents that continuously imply thorough discussions about fundamental principles of the law. In 2011, Lord McNelly, Justice Minister of UK at the time, has emphasized the core and everlasting principles that derived from this document:

᠅ that the power of the state is not absolute

᠅ that whoever governs the state must obey the law

᠅ and that whoever governs the state must take account of the views of those who are governed (McNally, 2011).

These are the fundamental principles of any government that strives to be distinguished as democratic, these are the self-evident truths that have been developed in the theory of social contract that established the modern day democracies.

It is very common that article 39 of Magna Carta that provides for the right to due process, as well as article 40 that provides for the right to access to justice and justice itself, to be usually analyzed from the point of view of the rights of the person accused of a crime. However, it must be taken into consideration, that failure to guarantee these two very important human rights makes the accused person a victim of abuse of power.

This article aims to analyze the relevance of Magna Carta in the rise of the concept of rights of victims of abuse of power. Although it is a concept developed later in history, the clauses of Magna Carta that remain in power can be directly linked to this category of victims.

The thirteenth century provides a very important perspective on the position of the victim of crime and can be analyzed in a comparative aspect regarding the Common Law and the Civil Law historical development. The article will briefly explain the evolution of the concept of victims’ rights throughout these eight centuries to the modern times when these rights have become a crucial part of the national legislations of Western Balkan countries.

Accès libre

The Principle Of Justice In Magna Carta Libertatum And Its Influence On The Law In General

Publié en ligne: 13 Jan 2016
Pages: 59 - 68

Résumé

Abstract

This article aims to expound the principle of justice, as a fundamental value and as an immanent category of law, as well as one of the fundamental human rights, prescribed and guaranteed by a myriad of international instruments and documents. After a brief historical account, by focusing on Article 40 of the Magna Carta Libertatum, which states that: “To No One Will we Sell, To No One Will we refuse or delay, right or justice”, this article claims to show the importance of incorporation of this principle in the provisions of the Magna Carta and its impact on the development of theory and legislation in the past and present. Moreover, the article intends to explore the extent of influence that the priciple of justice has on the functioning of the law in general. Since justice implicates the permanent and constant will to render each person his due, and this achieved through equality, it results that justice means being equal. In this context, the article will explore the concept of equality as a precondition of justice, as well as the conditions and modalities for its implementation.

Having in mind that the principle of justice is closely linked to the principle of equity, because equity precedes justice, or more precisely, equity is considered a source of justice, this article seeks to articulate the essential distinctions between these two concepts by focusing on their methods, i.e. in their approach for putting the idea of equality into action.

Accès libre

Interrogations And The Right To Remain Silent - A Comparative Approach

Publié en ligne: 13 Jan 2016
Pages: 69 - 78

Résumé

Abstract

Interrogations are a very specific component of any criminal investigation. The answers gained through interrogative process provides information that are considered as direct evidences. In contemporary criminal procedure, the court is not absolved from gaining other evidences, even in cases when the defendant confesses his/her guiltiness. This is a mechanism for excluding the inquisitorial approach for extracting compulsory confessions. The modern procedure uses a variety of mechanisms to guarantee that the defendant will not be compelled to confess guilt.

Those mechanisms are part of most important international conventions as International Convention for Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the Statutes of International Tribunals (i.e. International Tribunal for ex-Yugoslavia, International Tribunal for Rwanda) and part of different constitutional and legal acts of modern states.

A very interesting “highlight” remains the right to silence which guarantees that the defendant might remain silent and it will not be interpreted against him. The defendant, even in cases with direct evidences, can remain silent and cannot be forced to answer given questions.

Another “highlight” is that one that appears from the privilege against self-incrimination that allows the defendant to not answer a question, if by answering, he/she may confess guilt or incriminate him/herself. How deep is this privilege? Are there, maybe questions, that he/she are obliged to answer (i.e. disclosure of identity?)

The article will focus in interrogations and the right to silence by most important international acts and domestic acts of different countries (USA, France, Germany, Albania, Kosovo, Macedonia) and upcoming specifics in the relation interrogations vs. remaining silent.

Accès libre

Is The Principle Of Magna Carta Regarding Religious Liberties Applied In Macedonia?

Publié en ligne: 13 Jan 2016
Pages: 79 - 85

Résumé

Abstract

Human rights were analyzed and described in many writings from older times. If we consider their fame and historical value, most important ones are: Great Charter of Freedoms (Magna Carta Libertatum) of 1215, the Law on Rights (Bill of Rights) of 1689, the Declaration of Independence of the United States of America (1776) and the Declaration of the Rights of Man and Citizen (1789).

In Chapter 1 of Magna Carta was described the freedom of religion – it established the freedom of the English church from state interference.

Today, implementation of this principle, challenges the communities to examine the part they might play in the development of a liberal democracy and to be part of the solution rather than part of the problem in internal and international relations.

The restitution of the expropriated congregational properties – concretely of the Islamic Community of Macedonia remains open and can reflect the level of respect of human rights in general and religious and property rights in particular.

The aim of this paper is to bring some facts on actual situation regarding the implementation of religious and related rights and discuss the way this principle has found its implementation in Macedonian legislations.

Also this paper will seek to identify the problems that occur regarding these rights.

Accès libre

Magna Carta And Its Significant Role For Rule Of Law In The Republic Of Macedonia

Publié en ligne: 13 Jan 2016
Pages: 86 - 98

Résumé

Abstract

One of the most important and famous historical documents from the English legal and constitutional legacy is the Magna Carta Libertatum. Signed and sealed in the year 1215 the Magna Carta is further on viewed as the sole inception of the idea of limiting the power of the ruler trough legal rules. That limitation is to be made with legal rules that are binding for everyone, even the monarch. Therefore, the Great Charter is viewed as the first document signed by a monarch with which, the principle of supremacy of the law is set out. That supremacy of the law has been further on developed by eminent scholars and practitioners, eventually leading to the development of the concept of rule of law. Rule of law, as a concept, means that the royal authority (or the executive branch of power) is going to be inferior to the law. However, this concept means a lot more than simply that. Unlike the principle of legal state, the rule of law is closely linked to justice, separation of powers and legal certainty. All of these concepts are actually prerequisites for its existence. That is why each of them is separately examined and elaborated. Furthermore, as one of the most important principles the rule of law had a great influence on the constitutional (and legal) systems around the world. Since the Republic of Macedonia strives to become a democratic state where the rule of law is established and developed it is important to elaborate the influence of this principle in it. Therefore, the research gravitates over the principle of rule of law in the Republic of Macedonia.

Accès libre

Delayed Justice - Macedonian Experience With Guilty Plea And Sentence Bargaining

Publié en ligne: 13 Jan 2016
Pages: 99 - 110

Résumé

Abstract

Bearing on mind the idea of the proverb “Justice Delayed is Justice Denied” Macedonian Legislator within the new Code of Criminal Procedure (CPC) has introduced several legal mechanisms for accelerating the criminal procedure. The most important instruments among them, by all means, are the Guilty Plea and Sentence Bargaining.

In this article, the author elaborates the practical implementation of these CPC’s provisions and performs analysis of its implementation by the Basic Court Skopje 1 in Skopje, as the biggest and most caseload-burdened court in Macedonia, and by the Public Prosecution Office in Skopje.

The analysis discovered several weak points, which should be properly addressed, both through theoretical scrutiny and through introduction of amendments to the CPC or through production of a general opinion by the Supreme Court. Only through these amendments to the legal provisions of the CPC can be expected to have improved court practice in a manner which would accentuate the real/just benefits of these instruments for accelerating of the criminal procedure.

Several conclusions and suggestions for improvement or specific issues, which were determined as problematic were developed, such as: tackling the impact of a guilty plea by one of the codefendants to the other codefendants who did not plead guilty; treatment of the altered statement by one of the codefendants during the plea agreement and its use against the other codefendant; and the burden of proof and amount of evidence which is necessary to support the sentence bargaining process.

Accès libre

The Non - Discrimination Principle Through The Concept Of Establishment Of Companies In European Union

Publié en ligne: 13 Jan 2016
Pages: 111 - 122

Résumé

Abstract

The non-discrimination principle is one of the essential principles in the area of European public and private law too. The importance of this principle also takes a great place in field of company law, especially in the area of “freedom of establishment of the companies” in the European Single Market (hereinafter ESM).

Freedom of establishment of companies is closely related to the general concept of “free movement of people, capital, goods and services,” in ESM. In fact, freedom of establishment is a substantive part of the process of creation the internal market in EU. The freedom of establishment is based on the Treaty of the functioning of EU (hereinafter TFEU). According to article 49 from TFEU (previously article 43 et seq. EC Treaty), restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. This prohibition also applies to restrictions on setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. In-depth exploration of this issue is conditioned by the interpretation of the Court of justice of European Union (hereinafter CJEU), which embodies the real legal regime of freedom of establishment. Freedom of establishment of companies is closely related to the principles of healthy and fair competition and equal access of the companies too.

This article seeks to elaborate fundamental theoretical aspects of this issue, considering certain case - study analyze of CJEU judgements. The main focus is on the non-discrimination principle, legal effects of the CJEU judgments, free market and competitiveness, and finally, determination of the concept of primary and secondary establishment of companies in EU.

Accès libre

The ‘Equality Of Arms’ In Macedonian Criminal Procedure

Publié en ligne: 13 Jan 2016
Pages: 123 - 130

Résumé

Abstract

The right to a fair trial is implemented in our criminal procedure and is one of the core values of our criminal justice system. This right is absolute and can’t be limited on any legal base. Its essence is fair and public hearing by an independent and impartial court with guaranteeing of all the minimum rights of the defendant. One of those minimum rights is the right of equity of arms between the parties, the prosecutor and the defense. In our Law on Criminal Procedure, it is provided that the defense has the same rights and duties as the prosecutor except those rights that belong to the prosecutor as a state authority. Therefore, the purpose of this article is elaborating the right of ‘equity of arms’ and its misunderstanding in practice. Hence, we intend to show some case studies in which some evidence are not considered by the court just because they are not proposed by the prosecutor and they are crucial for the verdict.

Accès libre

The Right To Appeal For The Social Insurance As A Human And Constitutional Right

Publié en ligne: 13 Jan 2016
Pages: 131 - 138

Résumé

Abstract

Magna Carat is a highly significant document that found the way into the rights and the constitutions. Magna Carat is a symbol of human and constitutional rights. Social insurance is part of the social security and the recognition of social security as a basic human right is enshrined in the Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris and furthermore the European Conventions on Human Rights, specially the article 6.

Magna Carat demonstrated the limitations from the arbitrarily. Magna Carat is a foundation of the powers of Parliament and the legal principles, as the rule of law, the rule that everybody has equality before the law. It promised the access to justice. In that respect Magna Carta is still a challenge for many states and officials. The myth of Magna Carta is the protection of the personal rights and is held in great respect by the legal communities against the arbitrary of the authority

In respect of the aim of this international conference to see the way how these principles have found their implementation in contemporary legislations as well as to identify the problems that occur regarding these rights, an overview of the Albanian right to appeal for the social insurance rights. The right to appeal to higher authorities against any decisions and the judicial review against the unfavorably resolved appeals.

Accès libre

Magna Carta And The Roman Law Tradition

Publié en ligne: 13 Jan 2016
Pages: 139 - 144

Résumé

Abstract

Magna Carta is one of the most important illustrations of the exceptionalism of English common law. Within a completely feudal framework it gave the clearest possible articulation to the concept of the rule of law and at the same time it also showed that there were certain basic rights which every freeman enjoyed without any specific conferment by the king. From English perspective, continental European law after the process of the reception of Roman law was commonly regarded to be apart and different from the English legal tradition, as well as being perceived to pose a continual threat. The English Parliament constantly turned down royal attempts to emulate the continental reception of Roman law by characterizing it as something entirely foreign to English law. Roman law was supposed to promote an authoritarian and absolutist vision of the relationship between rule and subjection and this was expressed in the famous phrases 'princeps legibus solutus' and 'quod principi placuit legis habet vigorem'. Roman law was also anti-feudal, because one of its main principles that all power originated from one central source was the antithesis of the distribution of power over multiple centers, which was a crucial element of the feudal society. Many English historians have held the view that the English law is democratic, whereas the continental tradition is undemocratic and authoritarian, and this is why the Roman law succeeded on the Continent and failed in England.

Accès libre

Right To Property: From Magna Carta To The European Convention On Human Rights

Publié en ligne: 13 Jan 2016
Pages: 145 - 158

Résumé

Abstract

Property rights are integral part of the freedom and prosperity of every person, although their centrality has often been misprized and their provenance was doubted. Yet, traces of their origin can be found in Magna Carta, signed by the King of England in 1215. It was a turning point in human rights. Namely, it enumerates what later came to be thought of as human rights. Among them was also the right of all free citizens to own and inherit property. The European Convention on Human Rights was heavily influenced by British legal traditions, including Magna Carta. Among other rights, it also guaranties the right to property as a human right. Moreover, the protection of property rights has been extended to intellectual property rights as well. Namely, the European Court of Human Rights has provided protection of intellectual property rights through the adoption of decisions that interpret the right to property, in relation to intellectual property protection claims. It has extended the human rights protection of property to the mere application for registration of the trade mark. This paper has placed its focus on the development and treatment of the right to property starting from Magna Carta to the European Convention on Human Rights, as modern version of Magna Carta. In this sense, the jurisprudence of the European Court of Human Rights and its role and approach in the protection of the right to property will be examined as well.

Accès libre

Religious Freedoms In Republic Of Macedonia

Publié en ligne: 13 Jan 2016
Pages: 159 - 165

Résumé

Abstract

With the independence of Republic of Macedonia and the adoption of the Constitution of Macedonia, the country went through a substantial socio-political transition. The concept of human rights and freedoms, such as religious freedoms in the Macedonian Constitution is based on liberal democratic values. The Macedonian Constitution connects the fundamental human rights and freedoms with the concept of the individual and citizen, but also with the collective rights of ethnic minorities, respecting the international standards and responsibilities taken under numerous international human rights conventions and treaties, of which the country is a party. Republic of Macedonia has ratified all the so called “core human right treaties” and now the real challenge lies in the implementation of the international standards. Some of these international conventions and treaties of the United Nations and of the Council of Europe are inherited by succession from the former Yugoslavian federation. Religious freedoms are guaranteed by the Universal Declaration of human rights (1948), the International Covenant on Civil and Political Rights (1966), the European Convention on Human Rights (1953), the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) (all documents ratified by the Republic of Macedonia). According to the Constitution of the Republic of Macedonia “The freedom of religious confession is guaranteed. The right to express one's faith freely and publicly, individually or with others, is guaranteed„. After the conflict of 2001 the Ohrid Framework Agreement secured group rights for ethnicities that are not in majority in the Republic of Macedonia. The present Law on the legal status of the church, religious communities and religious groups of 2007, repealed the Law on religion and religious groups of 1997.

Accès libre

Domestic Violence Against Children – Negation Of Fundamental Rights

Publié en ligne: 13 Jan 2016
Pages: 166 - 174

Résumé

Abstract

Children are the most sensitive part of a sciety, therefore the violence against them is considered a serious violation of their personal rights and their higher interests.

In most of cases, children in Republic of Macedonia are very little or not at all informed concerning the possibilities of reporting the cases of violence against them by their parents or relatives (sisters, brothers, grandparents). The issue of domestic violence is still considered a private problem which occurs within the home. Thus, in most of cases, this problem remains unsolved in silence, without any alert for the state institutions or SOS phone lines for reporting domestic violence. Some children who are more aware for being subjected to violation of their rights are afraid to report the case because of further consequences.

In this article some facts will be given about observing the symptoms and signs of violence against children, forms and types of violence against children, determination factors of the violence as well as the consequences and the impact of the domestic violence on the physical and psychological development of children.

Based on the legal provisions and international conventions, parents, responsible institutions and the society in general are morally and legally obliged to respect and preserve the interest of the child. This article will show that in practice, these legal obligations are violated by parents and in specific cases also by the competent institutions because the lack of intervention.

Accès libre

The Influence Of Magna Carta Libertatum In The Development Of The Principle Of Rule Of Law

Publié en ligne: 13 Jan 2016
Pages: 175 - 182

Résumé

Abstract

The concept of Rule of Law is the cornerstone of the proper functioning of the judicial system in any modern democratic society. It is a basic concept of defined rights and liberties to all persons, which offers protection from arbitrary prosecution and incarceration. This principle was firstly stipulated by the instrument of Magna Carta and it is considered as a key principle for good governance in any modern democratic society. The development of the rule of law principle is personified through the independence of the Judiciary as a third branch of government. The contemporary democratic societies are faced with many challenges upon which in order to protect their values of the democratic system, often limit the rights and liberties of persons. It is the role of the courts and the judicial system to stop these injustices and protect the individual from any form of liberty deprivation and rights limitations. Before the promulgation of the Magna Carta in 1215, the rule of law was perceived as a divine justice, distributed solely by the monarch or the king or in this case - King John of England. Magna Carta doesn't have iconic status only in the British Society, which is perceived as an instrument with special constitutional status and cited by many judges, lawyers and politicians, but in any modern democratic states as well. The author in this article examines the development of the concept of Rule of Law in the modern democratic societies under the influence of the Magna Carta, and how it is perceived as a guarantee of fair trial and trial by jury of any persecuted persons whether the severity of their crimes.

Accès libre

Rule Of Law – Condition For Economic Development (Republic Of Macddonia)

Publié en ligne: 13 Jan 2016
Pages: 183 - 196

Résumé

Abstract

In this essay I will attempt to explain the relation between the rule of law and the economic development. First I will describe the rule of law and its role through the years. Then, I will continue with the connection between economic development and the rule of law. I will try to clarify Macedonia’s legal framework and emphasize the constitution and its role regarding the rule of law and economic development. Latter, I will focus on the EU’s report on our economy in our journey towards the union. And finally I will give something to think about for future researchers.

Accès libre

The Legacy Of Magna Carta And The Rule Of Law In The Republic Of Macedonia

Publié en ligne: 13 Jan 2016
Pages: 197 - 205

Résumé

Abstract

The rules as we know today in modern societies have their base in the Magna Carta from 1215. In that time people declared that the rights of the king and nobles must be limited and that was the first step toward as we know today “democracy”. The rights incorporated in the Magna Carta defined the limits what a state can do and also set boundaries in order to achieve equality between the state and the individual.

The rights proclaimed with Magna Carta found their path in the French Revolution from 1789 as “Liberty, Equality and Fraternity” became symbol of democratic freedom and afterwards gave value in the conventions and other international instruments. The main purpose that was achieved with Magna Carta from today’s perspective is that the rules have been implanted in the conscience of people, so they learn to obey and practice them.

The Magna Carta rights are integral part of international conventions and on that way they have been taken from the states on national level so they become inevitable incorporated segment of the constitution and the laws of states. Those rights have achieved their purpose, because 800 years after their proclamation, some of them are still on force and have been provided in the constitutions of many countries including the Western Balkan countries.

The rights that derived from Magna Carta concerning the rule of law, independence of the judiciary, equality before the law and prohibition of discrimination are integral part of the Constitution of Macedonia which makes efforts for their implementation into practice – because contrary, words will be just words on paper and nothing else.

23 Articles
Accès libre

Foreword

Publié en ligne: 13 Jan 2016
Pages: 1 - 1

Résumé

Accès libre

Importance Of Magna Carta For Global Democratic Trends At A Conference In Macedonia

Publié en ligne: 13 Jan 2016
Pages: 2 - 2

Résumé

Accès libre

A ‘Charter Of Liberties’: Is Refusing The ‘Right To Die’ A Failure To Maintain The Spirit Of Magna Carta?

Publié en ligne: 13 Jan 2016
Pages: 3 - 15

Résumé

Accès libre

Remarks On The 800th Anniversary Of Magna Carta

Publié en ligne: 13 Jan 2016
Pages: 16 - 17

Résumé

Accès libre

Normative And Practical Challenges Of The Republic Of Macedonia In The Application Of The Right To A Fair Trial Principle

Publié en ligne: 13 Jan 2016
Pages: 18 - 27

Résumé

Accès libre

Interpretation Of “Equality Of Arms” In Jurisprudence Of AD Hoc Tribunals And ICC

Publié en ligne: 13 Jan 2016
Pages: 28 - 39

Résumé

Abstract

Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair.

There are differences between interpretation and implementation of equality of arms in the jurisprudence of European court on human rights (ECtHR) and international criminal courts (ICTY, ICTR and ICC). Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties.

When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused.

Accès libre

From Magna Carta To The Contemporary System Of Financial Penalties In The Criminal Law

Publié en ligne: 13 Jan 2016
Pages: 40 - 47

Résumé

Abstract

Magna Carta Libertatum or the Great Charter of the Liberties is a historical document of great significance for the constitutional history and human rights and liberties development. Although at its initial version it addressed a limited number of liberties and principles, it represented a solid foundation for the evolution of the principles of the rule of law, right to justice, right to a fair trial, just and reasonable sentencing, limitation of powers, etc.

Namely, article 20 of the Charter states: A freeman shall not be amerced for a slight offense, except in accordance with the degree of the offense; and for a grave offense he shall be amerced in accordance with the gravity of the offense, yet saving always his “contenement”; and a merchant in the same way, saving his “merchandise”; and a villein shall be amerced in the same way, saving his “wainage” if they have fallen into our mercy: and none of the aforesaid amercements shall be imposed except by the oath of honest men of the neighborhood.

An analysis of this article undoubtedly leads us to the basic principles of the contemporary systems of fine, namely the daily-fine system introduced in the Macedonian Criminal Code in 2004 according to which the fine will be calculated and pronounced according to the gravity of the offence and the financial state and condition of the perpetrator. As one can notice, the gravity of the offence and the saving of the perpetrators “contenement” from the abovementioned article of the Great Charter refer to the aforesaid principles.

In this article, a comparison will be made on the meaning of the term “amercement” and its similarities and differences with the modern financial penalties and measures in the criminal law from comparative perspective, to find which one corresponds to the latter: fine, assets forfeiture or compensation of damages made with the criminal offence.

Accès libre

Relevance Of Magna Carta To Rights Of Victims Of Abuse Of Power

Publié en ligne: 13 Jan 2016
Pages: 48 - 58

Résumé

Abstract

Magna Carta Libertatum is one of the few documents that continuously imply thorough discussions about fundamental principles of the law. In 2011, Lord McNelly, Justice Minister of UK at the time, has emphasized the core and everlasting principles that derived from this document:

᠅ that the power of the state is not absolute

᠅ that whoever governs the state must obey the law

᠅ and that whoever governs the state must take account of the views of those who are governed (McNally, 2011).

These are the fundamental principles of any government that strives to be distinguished as democratic, these are the self-evident truths that have been developed in the theory of social contract that established the modern day democracies.

It is very common that article 39 of Magna Carta that provides for the right to due process, as well as article 40 that provides for the right to access to justice and justice itself, to be usually analyzed from the point of view of the rights of the person accused of a crime. However, it must be taken into consideration, that failure to guarantee these two very important human rights makes the accused person a victim of abuse of power.

This article aims to analyze the relevance of Magna Carta in the rise of the concept of rights of victims of abuse of power. Although it is a concept developed later in history, the clauses of Magna Carta that remain in power can be directly linked to this category of victims.

The thirteenth century provides a very important perspective on the position of the victim of crime and can be analyzed in a comparative aspect regarding the Common Law and the Civil Law historical development. The article will briefly explain the evolution of the concept of victims’ rights throughout these eight centuries to the modern times when these rights have become a crucial part of the national legislations of Western Balkan countries.

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The Principle Of Justice In Magna Carta Libertatum And Its Influence On The Law In General

Publié en ligne: 13 Jan 2016
Pages: 59 - 68

Résumé

Abstract

This article aims to expound the principle of justice, as a fundamental value and as an immanent category of law, as well as one of the fundamental human rights, prescribed and guaranteed by a myriad of international instruments and documents. After a brief historical account, by focusing on Article 40 of the Magna Carta Libertatum, which states that: “To No One Will we Sell, To No One Will we refuse or delay, right or justice”, this article claims to show the importance of incorporation of this principle in the provisions of the Magna Carta and its impact on the development of theory and legislation in the past and present. Moreover, the article intends to explore the extent of influence that the priciple of justice has on the functioning of the law in general. Since justice implicates the permanent and constant will to render each person his due, and this achieved through equality, it results that justice means being equal. In this context, the article will explore the concept of equality as a precondition of justice, as well as the conditions and modalities for its implementation.

Having in mind that the principle of justice is closely linked to the principle of equity, because equity precedes justice, or more precisely, equity is considered a source of justice, this article seeks to articulate the essential distinctions between these two concepts by focusing on their methods, i.e. in their approach for putting the idea of equality into action.

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Interrogations And The Right To Remain Silent - A Comparative Approach

Publié en ligne: 13 Jan 2016
Pages: 69 - 78

Résumé

Abstract

Interrogations are a very specific component of any criminal investigation. The answers gained through interrogative process provides information that are considered as direct evidences. In contemporary criminal procedure, the court is not absolved from gaining other evidences, even in cases when the defendant confesses his/her guiltiness. This is a mechanism for excluding the inquisitorial approach for extracting compulsory confessions. The modern procedure uses a variety of mechanisms to guarantee that the defendant will not be compelled to confess guilt.

Those mechanisms are part of most important international conventions as International Convention for Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, the Statutes of International Tribunals (i.e. International Tribunal for ex-Yugoslavia, International Tribunal for Rwanda) and part of different constitutional and legal acts of modern states.

A very interesting “highlight” remains the right to silence which guarantees that the defendant might remain silent and it will not be interpreted against him. The defendant, even in cases with direct evidences, can remain silent and cannot be forced to answer given questions.

Another “highlight” is that one that appears from the privilege against self-incrimination that allows the defendant to not answer a question, if by answering, he/she may confess guilt or incriminate him/herself. How deep is this privilege? Are there, maybe questions, that he/she are obliged to answer (i.e. disclosure of identity?)

The article will focus in interrogations and the right to silence by most important international acts and domestic acts of different countries (USA, France, Germany, Albania, Kosovo, Macedonia) and upcoming specifics in the relation interrogations vs. remaining silent.

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Is The Principle Of Magna Carta Regarding Religious Liberties Applied In Macedonia?

Publié en ligne: 13 Jan 2016
Pages: 79 - 85

Résumé

Abstract

Human rights were analyzed and described in many writings from older times. If we consider their fame and historical value, most important ones are: Great Charter of Freedoms (Magna Carta Libertatum) of 1215, the Law on Rights (Bill of Rights) of 1689, the Declaration of Independence of the United States of America (1776) and the Declaration of the Rights of Man and Citizen (1789).

In Chapter 1 of Magna Carta was described the freedom of religion – it established the freedom of the English church from state interference.

Today, implementation of this principle, challenges the communities to examine the part they might play in the development of a liberal democracy and to be part of the solution rather than part of the problem in internal and international relations.

The restitution of the expropriated congregational properties – concretely of the Islamic Community of Macedonia remains open and can reflect the level of respect of human rights in general and religious and property rights in particular.

The aim of this paper is to bring some facts on actual situation regarding the implementation of religious and related rights and discuss the way this principle has found its implementation in Macedonian legislations.

Also this paper will seek to identify the problems that occur regarding these rights.

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Magna Carta And Its Significant Role For Rule Of Law In The Republic Of Macedonia

Publié en ligne: 13 Jan 2016
Pages: 86 - 98

Résumé

Abstract

One of the most important and famous historical documents from the English legal and constitutional legacy is the Magna Carta Libertatum. Signed and sealed in the year 1215 the Magna Carta is further on viewed as the sole inception of the idea of limiting the power of the ruler trough legal rules. That limitation is to be made with legal rules that are binding for everyone, even the monarch. Therefore, the Great Charter is viewed as the first document signed by a monarch with which, the principle of supremacy of the law is set out. That supremacy of the law has been further on developed by eminent scholars and practitioners, eventually leading to the development of the concept of rule of law. Rule of law, as a concept, means that the royal authority (or the executive branch of power) is going to be inferior to the law. However, this concept means a lot more than simply that. Unlike the principle of legal state, the rule of law is closely linked to justice, separation of powers and legal certainty. All of these concepts are actually prerequisites for its existence. That is why each of them is separately examined and elaborated. Furthermore, as one of the most important principles the rule of law had a great influence on the constitutional (and legal) systems around the world. Since the Republic of Macedonia strives to become a democratic state where the rule of law is established and developed it is important to elaborate the influence of this principle in it. Therefore, the research gravitates over the principle of rule of law in the Republic of Macedonia.

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Delayed Justice - Macedonian Experience With Guilty Plea And Sentence Bargaining

Publié en ligne: 13 Jan 2016
Pages: 99 - 110

Résumé

Abstract

Bearing on mind the idea of the proverb “Justice Delayed is Justice Denied” Macedonian Legislator within the new Code of Criminal Procedure (CPC) has introduced several legal mechanisms for accelerating the criminal procedure. The most important instruments among them, by all means, are the Guilty Plea and Sentence Bargaining.

In this article, the author elaborates the practical implementation of these CPC’s provisions and performs analysis of its implementation by the Basic Court Skopje 1 in Skopje, as the biggest and most caseload-burdened court in Macedonia, and by the Public Prosecution Office in Skopje.

The analysis discovered several weak points, which should be properly addressed, both through theoretical scrutiny and through introduction of amendments to the CPC or through production of a general opinion by the Supreme Court. Only through these amendments to the legal provisions of the CPC can be expected to have improved court practice in a manner which would accentuate the real/just benefits of these instruments for accelerating of the criminal procedure.

Several conclusions and suggestions for improvement or specific issues, which were determined as problematic were developed, such as: tackling the impact of a guilty plea by one of the codefendants to the other codefendants who did not plead guilty; treatment of the altered statement by one of the codefendants during the plea agreement and its use against the other codefendant; and the burden of proof and amount of evidence which is necessary to support the sentence bargaining process.

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The Non - Discrimination Principle Through The Concept Of Establishment Of Companies In European Union

Publié en ligne: 13 Jan 2016
Pages: 111 - 122

Résumé

Abstract

The non-discrimination principle is one of the essential principles in the area of European public and private law too. The importance of this principle also takes a great place in field of company law, especially in the area of “freedom of establishment of the companies” in the European Single Market (hereinafter ESM).

Freedom of establishment of companies is closely related to the general concept of “free movement of people, capital, goods and services,” in ESM. In fact, freedom of establishment is a substantive part of the process of creation the internal market in EU. The freedom of establishment is based on the Treaty of the functioning of EU (hereinafter TFEU). According to article 49 from TFEU (previously article 43 et seq. EC Treaty), restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. This prohibition also applies to restrictions on setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State. In-depth exploration of this issue is conditioned by the interpretation of the Court of justice of European Union (hereinafter CJEU), which embodies the real legal regime of freedom of establishment. Freedom of establishment of companies is closely related to the principles of healthy and fair competition and equal access of the companies too.

This article seeks to elaborate fundamental theoretical aspects of this issue, considering certain case - study analyze of CJEU judgements. The main focus is on the non-discrimination principle, legal effects of the CJEU judgments, free market and competitiveness, and finally, determination of the concept of primary and secondary establishment of companies in EU.

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The ‘Equality Of Arms’ In Macedonian Criminal Procedure

Publié en ligne: 13 Jan 2016
Pages: 123 - 130

Résumé

Abstract

The right to a fair trial is implemented in our criminal procedure and is one of the core values of our criminal justice system. This right is absolute and can’t be limited on any legal base. Its essence is fair and public hearing by an independent and impartial court with guaranteeing of all the minimum rights of the defendant. One of those minimum rights is the right of equity of arms between the parties, the prosecutor and the defense. In our Law on Criminal Procedure, it is provided that the defense has the same rights and duties as the prosecutor except those rights that belong to the prosecutor as a state authority. Therefore, the purpose of this article is elaborating the right of ‘equity of arms’ and its misunderstanding in practice. Hence, we intend to show some case studies in which some evidence are not considered by the court just because they are not proposed by the prosecutor and they are crucial for the verdict.

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The Right To Appeal For The Social Insurance As A Human And Constitutional Right

Publié en ligne: 13 Jan 2016
Pages: 131 - 138

Résumé

Abstract

Magna Carat is a highly significant document that found the way into the rights and the constitutions. Magna Carat is a symbol of human and constitutional rights. Social insurance is part of the social security and the recognition of social security as a basic human right is enshrined in the Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris and furthermore the European Conventions on Human Rights, specially the article 6.

Magna Carat demonstrated the limitations from the arbitrarily. Magna Carat is a foundation of the powers of Parliament and the legal principles, as the rule of law, the rule that everybody has equality before the law. It promised the access to justice. In that respect Magna Carta is still a challenge for many states and officials. The myth of Magna Carta is the protection of the personal rights and is held in great respect by the legal communities against the arbitrary of the authority

In respect of the aim of this international conference to see the way how these principles have found their implementation in contemporary legislations as well as to identify the problems that occur regarding these rights, an overview of the Albanian right to appeal for the social insurance rights. The right to appeal to higher authorities against any decisions and the judicial review against the unfavorably resolved appeals.

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Magna Carta And The Roman Law Tradition

Publié en ligne: 13 Jan 2016
Pages: 139 - 144

Résumé

Abstract

Magna Carta is one of the most important illustrations of the exceptionalism of English common law. Within a completely feudal framework it gave the clearest possible articulation to the concept of the rule of law and at the same time it also showed that there were certain basic rights which every freeman enjoyed without any specific conferment by the king. From English perspective, continental European law after the process of the reception of Roman law was commonly regarded to be apart and different from the English legal tradition, as well as being perceived to pose a continual threat. The English Parliament constantly turned down royal attempts to emulate the continental reception of Roman law by characterizing it as something entirely foreign to English law. Roman law was supposed to promote an authoritarian and absolutist vision of the relationship between rule and subjection and this was expressed in the famous phrases 'princeps legibus solutus' and 'quod principi placuit legis habet vigorem'. Roman law was also anti-feudal, because one of its main principles that all power originated from one central source was the antithesis of the distribution of power over multiple centers, which was a crucial element of the feudal society. Many English historians have held the view that the English law is democratic, whereas the continental tradition is undemocratic and authoritarian, and this is why the Roman law succeeded on the Continent and failed in England.

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Right To Property: From Magna Carta To The European Convention On Human Rights

Publié en ligne: 13 Jan 2016
Pages: 145 - 158

Résumé

Abstract

Property rights are integral part of the freedom and prosperity of every person, although their centrality has often been misprized and their provenance was doubted. Yet, traces of their origin can be found in Magna Carta, signed by the King of England in 1215. It was a turning point in human rights. Namely, it enumerates what later came to be thought of as human rights. Among them was also the right of all free citizens to own and inherit property. The European Convention on Human Rights was heavily influenced by British legal traditions, including Magna Carta. Among other rights, it also guaranties the right to property as a human right. Moreover, the protection of property rights has been extended to intellectual property rights as well. Namely, the European Court of Human Rights has provided protection of intellectual property rights through the adoption of decisions that interpret the right to property, in relation to intellectual property protection claims. It has extended the human rights protection of property to the mere application for registration of the trade mark. This paper has placed its focus on the development and treatment of the right to property starting from Magna Carta to the European Convention on Human Rights, as modern version of Magna Carta. In this sense, the jurisprudence of the European Court of Human Rights and its role and approach in the protection of the right to property will be examined as well.

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Religious Freedoms In Republic Of Macedonia

Publié en ligne: 13 Jan 2016
Pages: 159 - 165

Résumé

Abstract

With the independence of Republic of Macedonia and the adoption of the Constitution of Macedonia, the country went through a substantial socio-political transition. The concept of human rights and freedoms, such as religious freedoms in the Macedonian Constitution is based on liberal democratic values. The Macedonian Constitution connects the fundamental human rights and freedoms with the concept of the individual and citizen, but also with the collective rights of ethnic minorities, respecting the international standards and responsibilities taken under numerous international human rights conventions and treaties, of which the country is a party. Republic of Macedonia has ratified all the so called “core human right treaties” and now the real challenge lies in the implementation of the international standards. Some of these international conventions and treaties of the United Nations and of the Council of Europe are inherited by succession from the former Yugoslavian federation. Religious freedoms are guaranteed by the Universal Declaration of human rights (1948), the International Covenant on Civil and Political Rights (1966), the European Convention on Human Rights (1953), the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) (all documents ratified by the Republic of Macedonia). According to the Constitution of the Republic of Macedonia “The freedom of religious confession is guaranteed. The right to express one's faith freely and publicly, individually or with others, is guaranteed„. After the conflict of 2001 the Ohrid Framework Agreement secured group rights for ethnicities that are not in majority in the Republic of Macedonia. The present Law on the legal status of the church, religious communities and religious groups of 2007, repealed the Law on religion and religious groups of 1997.

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Domestic Violence Against Children – Negation Of Fundamental Rights

Publié en ligne: 13 Jan 2016
Pages: 166 - 174

Résumé

Abstract

Children are the most sensitive part of a sciety, therefore the violence against them is considered a serious violation of their personal rights and their higher interests.

In most of cases, children in Republic of Macedonia are very little or not at all informed concerning the possibilities of reporting the cases of violence against them by their parents or relatives (sisters, brothers, grandparents). The issue of domestic violence is still considered a private problem which occurs within the home. Thus, in most of cases, this problem remains unsolved in silence, without any alert for the state institutions or SOS phone lines for reporting domestic violence. Some children who are more aware for being subjected to violation of their rights are afraid to report the case because of further consequences.

In this article some facts will be given about observing the symptoms and signs of violence against children, forms and types of violence against children, determination factors of the violence as well as the consequences and the impact of the domestic violence on the physical and psychological development of children.

Based on the legal provisions and international conventions, parents, responsible institutions and the society in general are morally and legally obliged to respect and preserve the interest of the child. This article will show that in practice, these legal obligations are violated by parents and in specific cases also by the competent institutions because the lack of intervention.

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The Influence Of Magna Carta Libertatum In The Development Of The Principle Of Rule Of Law

Publié en ligne: 13 Jan 2016
Pages: 175 - 182

Résumé

Abstract

The concept of Rule of Law is the cornerstone of the proper functioning of the judicial system in any modern democratic society. It is a basic concept of defined rights and liberties to all persons, which offers protection from arbitrary prosecution and incarceration. This principle was firstly stipulated by the instrument of Magna Carta and it is considered as a key principle for good governance in any modern democratic society. The development of the rule of law principle is personified through the independence of the Judiciary as a third branch of government. The contemporary democratic societies are faced with many challenges upon which in order to protect their values of the democratic system, often limit the rights and liberties of persons. It is the role of the courts and the judicial system to stop these injustices and protect the individual from any form of liberty deprivation and rights limitations. Before the promulgation of the Magna Carta in 1215, the rule of law was perceived as a divine justice, distributed solely by the monarch or the king or in this case - King John of England. Magna Carta doesn't have iconic status only in the British Society, which is perceived as an instrument with special constitutional status and cited by many judges, lawyers and politicians, but in any modern democratic states as well. The author in this article examines the development of the concept of Rule of Law in the modern democratic societies under the influence of the Magna Carta, and how it is perceived as a guarantee of fair trial and trial by jury of any persecuted persons whether the severity of their crimes.

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Rule Of Law – Condition For Economic Development (Republic Of Macddonia)

Publié en ligne: 13 Jan 2016
Pages: 183 - 196

Résumé

Abstract

In this essay I will attempt to explain the relation between the rule of law and the economic development. First I will describe the rule of law and its role through the years. Then, I will continue with the connection between economic development and the rule of law. I will try to clarify Macedonia’s legal framework and emphasize the constitution and its role regarding the rule of law and economic development. Latter, I will focus on the EU’s report on our economy in our journey towards the union. And finally I will give something to think about for future researchers.

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The Legacy Of Magna Carta And The Rule Of Law In The Republic Of Macedonia

Publié en ligne: 13 Jan 2016
Pages: 197 - 205

Résumé

Abstract

The rules as we know today in modern societies have their base in the Magna Carta from 1215. In that time people declared that the rights of the king and nobles must be limited and that was the first step toward as we know today “democracy”. The rights incorporated in the Magna Carta defined the limits what a state can do and also set boundaries in order to achieve equality between the state and the individual.

The rights proclaimed with Magna Carta found their path in the French Revolution from 1789 as “Liberty, Equality and Fraternity” became symbol of democratic freedom and afterwards gave value in the conventions and other international instruments. The main purpose that was achieved with Magna Carta from today’s perspective is that the rules have been implanted in the conscience of people, so they learn to obey and practice them.

The Magna Carta rights are integral part of international conventions and on that way they have been taken from the states on national level so they become inevitable incorporated segment of the constitution and the laws of states. Those rights have achieved their purpose, because 800 years after their proclamation, some of them are still on force and have been provided in the constitutions of many countries including the Western Balkan countries.

The rights that derived from Magna Carta concerning the rule of law, independence of the judiciary, equality before the law and prohibition of discrimination are integral part of the Constitution of Macedonia which makes efforts for their implementation into practice – because contrary, words will be just words on paper and nothing else.

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