Journal & Issues

Volume 15 (2022): Issue 1 (October 2022)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Volume 2 (2009): Issue 2 (December 2009)

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

Volume 1 (2008): Issue 1 (December 2008)

Journal Details
Format
Journal
eISSN
2029-0454
First Published
05 Feb 2009
Publication timeframe
2 times per year
Languages
English

Search

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

Journal Details
Format
Journal
eISSN
2029-0454
First Published
05 Feb 2009
Publication timeframe
2 times per year
Languages
English

Search

7 Articles
Open Access

The Principle of the Separation of Powers: the Ontological Presumption of an Ideologeme

Published Online: 18 Mar 2021
Page range: 1 - 23

Abstract

Abstract

The theoretical materiality of the principle of the separation of powers is beyond doubt. This principle is inevitable in discourse on the constitutional framework of the state, democracy and the rule of law, and it has its own form of expression in positive law. Although the relevance of the principle of the separation of powers in social discourse creates the illusion of the conceivability of its content, the ontological questions concerning this principle remain largely vague. This can be explained by considering two aspects. First, as established in scientific doctrines and constitutional forms of expression, the principle of the separation of powers has become a social and legal ideologeme; it approximates an axiom which is no longer substantiated anew. Second, discourse concerning ontology is always complicated, since it calls to question the essence itself. It is complicated not only because it requires a particular intellectual effort and academic courage, but also because the outcome of such discourse is unpredictable and can lead either to the ideologeme being confirmed to be true or being unexpectedly revised, or perhaps can even lead to the demise of what has so far been self-evident, unquestionable, obvious, universally known, etc. This article analyses the ontological essence of the principle of the separation of powers – an approach towards the human being, whereby meaning is given to the consequent system of causal relationships within the whole theory. Discourse in this article takes ontological issues as its object of inquiry: why did we decide to separate powers and how many of these separated powers are there?

Keywords

  • The principle of the separation of powers
  • Constitution
  • ideologeme
  • myth
  • checks and balances
Open Access

Modeling the Patterns of Civil Confiscation: Balancing Effectiveness, Proportionality and the Right to Be Presumed Innocent

Published Online: 18 Mar 2021
Page range: 24 - 48

Abstract

Abstract

This article elaborates on recent developments in modelling the advanced measure for prevention of organized and serious criminality and corruption – civil confiscation. It distinguishes and discusses the safeguards in civil confiscation patterns that are supposed to ensure the balance between the effectiveness and proportionality of the recovery of the proceeds of crime. Based on different sets of the distinguished safeguards, the article abstracts the variety of civil confiscation patterns in European national jurisdictions into three models and discusses the advantages and the risks the regulation based on these models may pose. The analysis is supplemented with the assessments made by the European Court of Human Rights in the cases related to civil confiscation regulation and insights of the practitioners who participated in the legislative proceedings on the draft of the Lithuanian law on civil confiscation. The article concludes with the thesis that some patterns of the civil confiscation may pose serious risks of disproportional or erroneous decisions to recover property and abuse of civil confiscation proceedings.

Keywords

  • Civil confiscation
  • proportionality
  • presumption of innocence
  • proceeds of crime
Open Access

The Role of EU Principles in Criminal Law: is the Principle of Direct Effect Applicable?

Published Online: 18 Mar 2021
Page range: 49 - 75

Abstract

Abstract

With the enactment of the Lisbon Treaty, EU law gained supremacy over national law in ten areas of criminal law (with the possibility of extension in the future) treated as particularly serious crimes with a cross-border dimension and the right to enact directives. The question arises if and when direct effect is possible in criminal law, taking account of developments and applications of this principle in other areas of EU law. To answer this question, the following tasks are necessary: (1) to discuss the role of principles in criminal law, (2) to define the principle of direct effect through the academic literature and the jurisprudence of the CJEU, (3) to discuss whether directives could have direct effect in criminal law, and (4) to analyze the EU’s impact on Lithuanian national criminal law through an analysis of the jurisprudence of the Supreme Court of Lithuania.

Keywords

  • EU
  • criminal law
  • principle of direct effect
  • directives
Open Access

Europeanization by European Parliament Political Groups: The Case of Latvia 2004-2019

Published Online: 18 Mar 2021
Page range: 76 - 108

Abstract

Abstract

This article assesses the top-down Europeanization of national political parties by the political groups of the European Parliament. Based on the premise that the national political parties alter their agendas and argumentation because of ties to their respective European Parliament political groups, the paper presents a case study of Latvia in the period from 2004 to 2019. The analysis focuses on the agendas of three political parties whose continuity can be clearly traced during the fifteen years – the “New Unity”, the “National Alliance” and the “Latvian Russian Union”. It concludes that the small number of members of the European Parliament elected from Latvia, migration of individual politicians from party to party, and low durability of Latvian parties themselves has limited the sustainability of Europeanization and impeded downloading of EU topics and principles to the national party level. Meanwhile, party programs of all three observed parties have Europeanized since 2004 in terms of the number and depth of the EU issues addressed.

Keywords

  • Europeanization
  • political parties
  • European Parliament
  • European Parliament political groups
  • Latvia
Open Access

The Application of Customer Service Standards and Street-Level Bureaucrats’ Discretion in Lithuanian State Agencies

Published Online: 18 Mar 2021
Page range: 109 - 134

Abstract

Abstract

The main purpose of this article is to explore how standardization of the public service provision and introduction of customer service standards affect the de facto discretion of civil servants. The study uses a qualitative case study approach. Two main research methods were used to gather data – semi-structured interview and document analysis. Analysis of the empirical data revealed that written standards only partially affect the de facto discretion of civil servants. The customer interaction standards define only a few civil servants’ actions, and do not cover all aspects of the communication between civil servants and customers. Application of written standards is flexible especially in non-typical situations. Customer service standards do not restrict the actions of civil servants when they focus on customer problems, which is especially important when dealing with socially vulnerable customers. This study explores the use of customer service standards as a public management tool. The research data can be useful for understanding and improving customer interaction standards and its practical application.

Keywords

  • Street-level bureaucracy
  • standardization
  • customer service
  • customer service standards
Open Access

Party Autonomy in the Context of Jurisdictional and Choice of Law Rules of Matrimonial Property Regulation

Published Online: 18 Mar 2021
Page range: 135 - 158

Abstract

Abstract

In 2019, the EU Member States started applying the Matrimonial Property Regulation, which concerns the property regimes of international marriages. This regulation is aimed at helping couples manage their property and divide it in case of divorce or the death of one spouse. One of the main features of this regulation is its openness to the parties’ choice. The parties are enabled – in cases foreseen in the regulation – to grant jurisdiction to the court of a Member State of their choice, as well as to choose the law applicable to their matrimonial property regime. Since this regulation is new and the track record of its application is rather short, the limits of party autonomy allowed under the regulation and its advantages still involve a high degree of uncertainty. This article provides an in-depth analysis of party autonomy as provided for in the Matrimonial Property Regulation. In addition, it scrutinises the issue of party autonomy in the Succession Regulation, which often directly interacts with the Matrimonial Property Regulation.

Keywords

  • Matrimonial Property Regulation
  • Succession Regulation
  • matrimonial property
  • party autonomy
  • prorogation of jurisdiction
  • choice of law
Open Access

Arbitration Agreements and Protection of the Right to a Fair Trial

Published Online: 18 Mar 2021
Page range: 159 - 180

Abstract

Abstract

Arbitration is a dispute settlement mechanism based on an agreement of the parties. Party autonomy to conclude an arbitration agreement is well established and recognized by the UNCITRAL Model Law on Arbitration and various national laws. However, party autonomy to conclude an arbitration agreement raises certain challenges for protection of human rights. One of them is how an arbitration agreement is compatible with Article 6 of the European Convention on Human Rights, which establishes the right to a fair trial before the state court. Conclusion of an arbitration agreement means that the parties waive their right to submit the dispute to the state court and instead create biding jurisdiction of arbitration court. This waiver of the right to a fair trial before the state court raises questions as to what extent the procedural guarantees of the right to a fair trial are applicable in arbitration court. What are the requirements for such a waiver of the right to a fair trial before the state courts?

Keywords

  • Arbitration
  • party autonomy
  • right to a fair trial
  • arbitration agreement
  • human rights
7 Articles
Open Access

The Principle of the Separation of Powers: the Ontological Presumption of an Ideologeme

Published Online: 18 Mar 2021
Page range: 1 - 23

Abstract

Abstract

The theoretical materiality of the principle of the separation of powers is beyond doubt. This principle is inevitable in discourse on the constitutional framework of the state, democracy and the rule of law, and it has its own form of expression in positive law. Although the relevance of the principle of the separation of powers in social discourse creates the illusion of the conceivability of its content, the ontological questions concerning this principle remain largely vague. This can be explained by considering two aspects. First, as established in scientific doctrines and constitutional forms of expression, the principle of the separation of powers has become a social and legal ideologeme; it approximates an axiom which is no longer substantiated anew. Second, discourse concerning ontology is always complicated, since it calls to question the essence itself. It is complicated not only because it requires a particular intellectual effort and academic courage, but also because the outcome of such discourse is unpredictable and can lead either to the ideologeme being confirmed to be true or being unexpectedly revised, or perhaps can even lead to the demise of what has so far been self-evident, unquestionable, obvious, universally known, etc. This article analyses the ontological essence of the principle of the separation of powers – an approach towards the human being, whereby meaning is given to the consequent system of causal relationships within the whole theory. Discourse in this article takes ontological issues as its object of inquiry: why did we decide to separate powers and how many of these separated powers are there?

Keywords

  • The principle of the separation of powers
  • Constitution
  • ideologeme
  • myth
  • checks and balances
Open Access

Modeling the Patterns of Civil Confiscation: Balancing Effectiveness, Proportionality and the Right to Be Presumed Innocent

Published Online: 18 Mar 2021
Page range: 24 - 48

Abstract

Abstract

This article elaborates on recent developments in modelling the advanced measure for prevention of organized and serious criminality and corruption – civil confiscation. It distinguishes and discusses the safeguards in civil confiscation patterns that are supposed to ensure the balance between the effectiveness and proportionality of the recovery of the proceeds of crime. Based on different sets of the distinguished safeguards, the article abstracts the variety of civil confiscation patterns in European national jurisdictions into three models and discusses the advantages and the risks the regulation based on these models may pose. The analysis is supplemented with the assessments made by the European Court of Human Rights in the cases related to civil confiscation regulation and insights of the practitioners who participated in the legislative proceedings on the draft of the Lithuanian law on civil confiscation. The article concludes with the thesis that some patterns of the civil confiscation may pose serious risks of disproportional or erroneous decisions to recover property and abuse of civil confiscation proceedings.

Keywords

  • Civil confiscation
  • proportionality
  • presumption of innocence
  • proceeds of crime
Open Access

The Role of EU Principles in Criminal Law: is the Principle of Direct Effect Applicable?

Published Online: 18 Mar 2021
Page range: 49 - 75

Abstract

Abstract

With the enactment of the Lisbon Treaty, EU law gained supremacy over national law in ten areas of criminal law (with the possibility of extension in the future) treated as particularly serious crimes with a cross-border dimension and the right to enact directives. The question arises if and when direct effect is possible in criminal law, taking account of developments and applications of this principle in other areas of EU law. To answer this question, the following tasks are necessary: (1) to discuss the role of principles in criminal law, (2) to define the principle of direct effect through the academic literature and the jurisprudence of the CJEU, (3) to discuss whether directives could have direct effect in criminal law, and (4) to analyze the EU’s impact on Lithuanian national criminal law through an analysis of the jurisprudence of the Supreme Court of Lithuania.

Keywords

  • EU
  • criminal law
  • principle of direct effect
  • directives
Open Access

Europeanization by European Parliament Political Groups: The Case of Latvia 2004-2019

Published Online: 18 Mar 2021
Page range: 76 - 108

Abstract

Abstract

This article assesses the top-down Europeanization of national political parties by the political groups of the European Parliament. Based on the premise that the national political parties alter their agendas and argumentation because of ties to their respective European Parliament political groups, the paper presents a case study of Latvia in the period from 2004 to 2019. The analysis focuses on the agendas of three political parties whose continuity can be clearly traced during the fifteen years – the “New Unity”, the “National Alliance” and the “Latvian Russian Union”. It concludes that the small number of members of the European Parliament elected from Latvia, migration of individual politicians from party to party, and low durability of Latvian parties themselves has limited the sustainability of Europeanization and impeded downloading of EU topics and principles to the national party level. Meanwhile, party programs of all three observed parties have Europeanized since 2004 in terms of the number and depth of the EU issues addressed.

Keywords

  • Europeanization
  • political parties
  • European Parliament
  • European Parliament political groups
  • Latvia
Open Access

The Application of Customer Service Standards and Street-Level Bureaucrats’ Discretion in Lithuanian State Agencies

Published Online: 18 Mar 2021
Page range: 109 - 134

Abstract

Abstract

The main purpose of this article is to explore how standardization of the public service provision and introduction of customer service standards affect the de facto discretion of civil servants. The study uses a qualitative case study approach. Two main research methods were used to gather data – semi-structured interview and document analysis. Analysis of the empirical data revealed that written standards only partially affect the de facto discretion of civil servants. The customer interaction standards define only a few civil servants’ actions, and do not cover all aspects of the communication between civil servants and customers. Application of written standards is flexible especially in non-typical situations. Customer service standards do not restrict the actions of civil servants when they focus on customer problems, which is especially important when dealing with socially vulnerable customers. This study explores the use of customer service standards as a public management tool. The research data can be useful for understanding and improving customer interaction standards and its practical application.

Keywords

  • Street-level bureaucracy
  • standardization
  • customer service
  • customer service standards
Open Access

Party Autonomy in the Context of Jurisdictional and Choice of Law Rules of Matrimonial Property Regulation

Published Online: 18 Mar 2021
Page range: 135 - 158

Abstract

Abstract

In 2019, the EU Member States started applying the Matrimonial Property Regulation, which concerns the property regimes of international marriages. This regulation is aimed at helping couples manage their property and divide it in case of divorce or the death of one spouse. One of the main features of this regulation is its openness to the parties’ choice. The parties are enabled – in cases foreseen in the regulation – to grant jurisdiction to the court of a Member State of their choice, as well as to choose the law applicable to their matrimonial property regime. Since this regulation is new and the track record of its application is rather short, the limits of party autonomy allowed under the regulation and its advantages still involve a high degree of uncertainty. This article provides an in-depth analysis of party autonomy as provided for in the Matrimonial Property Regulation. In addition, it scrutinises the issue of party autonomy in the Succession Regulation, which often directly interacts with the Matrimonial Property Regulation.

Keywords

  • Matrimonial Property Regulation
  • Succession Regulation
  • matrimonial property
  • party autonomy
  • prorogation of jurisdiction
  • choice of law
Open Access

Arbitration Agreements and Protection of the Right to a Fair Trial

Published Online: 18 Mar 2021
Page range: 159 - 180

Abstract

Abstract

Arbitration is a dispute settlement mechanism based on an agreement of the parties. Party autonomy to conclude an arbitration agreement is well established and recognized by the UNCITRAL Model Law on Arbitration and various national laws. However, party autonomy to conclude an arbitration agreement raises certain challenges for protection of human rights. One of them is how an arbitration agreement is compatible with Article 6 of the European Convention on Human Rights, which establishes the right to a fair trial before the state court. Conclusion of an arbitration agreement means that the parties waive their right to submit the dispute to the state court and instead create biding jurisdiction of arbitration court. This waiver of the right to a fair trial before the state court raises questions as to what extent the procedural guarantees of the right to a fair trial are applicable in arbitration court. What are the requirements for such a waiver of the right to a fair trial before the state courts?

Keywords

  • Arbitration
  • party autonomy
  • right to a fair trial
  • arbitration agreement
  • human rights

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