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The relationship between the prohibition of forced labour and the prohibition of discrimination in the case-law of the European Court of Human Rights
Views:74The European Convention on Human Rights sets forth a number of fundamental rights and freedoms, including prohibition of slavery and forced labour (Article 4.) and the prohibition of discrimination (Article 14.). However, the European Convention on Human Rights prohibits discrimination only in relation to the enjoyment rights protected in the text of the Convention and did not originally include a provision proclaiming the equality of all before the law. As the European Court of Human Rights stated in Abdulaziz case: „Article 14 ... has no independent existence since it has effect solely in relation to „the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.”
In this study we examine only the relationship between Article 4. and Article 14 of the Convention. There is only one case, in which the applicant could call upon Article 4 and Article 14 together with success before the European Court of Human Rights: the case of Van der Mussele versus Belgium. For this reason we introduce not only this basic case, but lots of other cases, in which there were no discrimination in connection with Article 4. The applicants should find another group of persons are in analogous situations, which worsens the position of applicants seriously because of the difficulty of this condition.
In the above mentioned Van der Mussele case the applicant Belgian lawyer stated that Belgian lawyers are subject to less favourable treatment than that of members of a whole series of other professions, because in legal aid cases lawyers have to work without any remuneration, but the State accords remuneration to judges, registrars and interpreters in these cases. The Court emphasized that everybody could know the conditions of a profession in advance, and in the light of these conditions could choose it or not, and nobody compelled the applicant to be a lawyer. For this reason legal aid cases cannot be considered as forced labour, independently the remuneration of these cases.
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A general overview of the article 6 paragraph 1 of the European Convention on Human Rights based on the case law of the European Court of Human Rights
Views:120The most important human rights were firstly defined by the French Declaration from 1789. These rights are called as first generation rights, because they guarantee the most important civil and political rights of people. The states mostly act passive in order to protect them. They create acts on their protection, special mechanisms for enforcing them. We can state that every field of law is based upon them and helps protecting the human rights.
The right to a fair trial is a first generation human right. Its regulation scheme is very complex; therefore it is a hard and a complex task to define the importance and the key functions of this right, because the laws on it are varied. Besides civil procedural law, international law, EU-law and – within national legal systems – constitutional law has also been dealing with the right to a fair trial.
In the field of international law many international and regional treaties exist on the enforcement of procedural rights. In my paper I examined the European Convention on Human Rights (hereinafter: ECHR). The ECHR is an international treaty on the protection of human rights. It was born under the auspices of the Council of Europe in 1950, Rome. From 1959 its control mechanism is the European Court of Human Rights.
In my paper I examined the proper interpretation and the actual application of the ECHR art. 6. par. 1based on the work of the international court.The article 6 of ECHR is about the right to a fair trial. In par. 1 the Convention gives a list of the most common features of a fair trial: (1) a fair and public hearing; (2) with a reasonable time; (3) the tribunal must be established by law and must meet with the requirements of independency and impartiality; (4) and finally the judgement shall be pronounced publicly. It enshrines the principle of the rule of law, upon which such a society is based and built.
The first chapter deals with problem of the interpretation of the article. I tried to give the most convenient statements, which I defined upon the case law of the ECHR. After the question of interpretation is answered, the third chapter tries to give an overview of the applicability of article 6.In this section I cited many cases of the ECHR, because the Court has been developing the question of applicability in its case law. It is because it considers the Convention as a living-organism, so the article 6. needed to be interpreted again and again during these decades.
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Information about the regulation of service charges in relation to the procedure of the Commissioner for Fundamental Rights
19-40Views:215The article introduces the statutory regulation of service charges in relation to the procedure of the Commissioner for Fundamental Rights in a complex manner, by referring to all affected parts of the statutory system providing a detailed and critical analysis, reasoning, furthermore the article also refers to the statutory dogmatic, constitutional issues, controversies, maladministration and interpreting questions related to service charges, by also making reference to the halts in consumer protection – repealing the 15% upper limit. The article presents the answer of the Commissioner for Fundamental Rights and the necessary reflection to this answer. The author publishes his thorough and firm opinion, which takes into consideration consumer protection and discrimination aspects, in a usable manner for legislators and law enforcement bodies, and summarises the final conclusions, „missing items” complied in nine points.
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The Right to Information Self-Determination after the General Data Protection Regulation
Views:315Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), became effective on 25 May 2018. With the regulatory form the legislator raised the regulation of the right to the protection of personal data within the European Union to a higher level. The legislative act has a fundamental impact on the legal systems of the member states showing various differences from each other. Further, it can be stated as a general experience that the right to the protection of personal data and the nature of such right are less known either to those affected or to the data controllers. The new legislative act and the penalties with increased amounts [Article 84 of the GDPR] demand the elaboration of a study understandable for laics, too. Finally, as a result of the General Data Protection Regulation, the institution system ensuring the protection of personal data has fundamentally changed, so, therefore, it is also necessary to examine the authorities of the member states and the Union, as well.
The study primarily approaches the occurring problems from the practice side. Accordingly, the examination conducted by the Commission nationale de l’informatique et des libertés (CNIL) against Google is described, as the first significant penalty imposed based on the General Data Protection Regulation.
The first part of the study is intended to present the right to the general protection of personal data. The historical part addresses in details the major elements of the historical development of data protection and the development of its contents, with particular regard to the appearance of the right to information self-determination based on the so-called “census-judgement” of 1983 of the BVerfG (Federal Constitutional Court of Germany). Finally, this part touches upon the theories defined in connection with the historical generations of the right to the protection of personal data. After the historical part the study addresses the peculiarities of the right to the protection of personal data, paying particular attention to separation from the neighbouring legal areas.
The second part is intended to present the prevalence of the right to information self-determination according to the GDPR. It is the institution system protecting personal data that has undergone the most significant change. The Work Group under Article 29 has been replaced by the Data Protection Agency set up based on the GDPR. Setting up the Agency, enlarging its scope of authority and its stronger independence from the executive powers of the Union can, by all means, be evaluated positively. As regards the security of personal data, the practice, major directives and opinions of the Work Group under Article 29 have been examined. It is a significant step forward that the GDPR has made the sphere of special personal data more specific, promoting by this the increase of the extent of protection. It is important that, as a general rule, the Regulation forbids controlling special personal data. The definition of the concept of personal data is an essential condition for understanding the regulation. In addition to the principles of controlling personal data, the legal fundaments of data control have particular significance, with special regard to the consent and the data control necessary for performing the contract. In my view, the consent is a legal fundament of auxiliary nature for data control, which is also supported by the opinions of the Work Group, too. Granting the consent and the individual excluding circumstances occurring in connection with this, were examined on a case-by-case basis. In my opinion, the automated decision making process and the regulation of profile creation are one of the most cardinal issues of the GDPR. The way in which profiles are created, their use and the permissibility of such use are discussed in details. In my view, the regulation of the GDPR is deficient as regards the automated decision making process and the profile creation. The decision making necessary for performing the contract is not separated sharply enough, and it is not necessary for this. In my opinion, in respect of this latter sphere of cases the GDPR is not strict enough and may easily serve as a basis for misuse on the part of data controllers. In my view, granting the consent should be made stricter in respect of creating profiles and the introduction of the (contradictable) legal presumption of refusal would also be desirous.
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Interpretation anomalies in the Vienna Sale Convention damages practice
14-26.Views:256The essay is about the interpretion anomalies in connection with damages law practice of The United Nations Convention on Contracts for the International Sale of Goods (CISG). This seems to be an essential problem regarding to that the Convention’s breach of contract-system is highly relevant, whereas it must provide a mechanism, which serves international trade between countries with huge legal, economic and social disparaties. At the heart of the system we find damages, which provides an efficient and rapid solution to cure the dysfunctions which can occur with respect to cross-border commercial relationships.
The provisions of the Convention are of a universal nature, thus they require uniform interpretation and application by the courts of the Contracting States, therefore Article 7, which deals with interpretation of rules and the filling of legal gaps, is indispensable for the successful application of the Convention and the achievement of its objectives. In this essay by analyzing the relevant case law, I was primarily seeking the answer to whether the judges of different countries validate the universiality of the Convention with respect to damages law. In order to answear the question I have analyzed the Convention’s damages practice in relation to interpretation principles set out in Article 7. Within this I have systematically reviewed the practice of Article 74 of the Convention, analyzing a total of 144 cases from 2006 to 2016.
The revision shows that nine decisions were made during the period under review, where the court has applied national doctrine of liability, law, or practice in connection with the interpretation of Article 74. This method obviously does not promote the realization of uniformity. An internationally uniform sales law will only be realized if it is uniformly applied. For the purpose of the interpretation of the Convention, it follows that requirement the Convention’s provisions must be understood and applied autonomously, separated from their possible national roots. The legal problems discovered in this essay tries to highlight on those issues, which require more attention from the courts, thus confirming the universal character of the Convention.
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Dents on the Bodywork – Corporate Governance Issues Regarding the Recent Corporate Scandals in the Automotive Industry
3-14Views:85The aim of the article is to examine the key corporate governance issues in light of the recent scandals in the automotive industry. The article explores the underlying reasons which culminated in the events of the General Motors ignition switch scandal, and Volkswagen's "Dieselgate". While these two events may seem unrelated at the first glance, however, the facts show that similar problems led to these scandals, most of which were deeply rooted in the corporate culture. Factors, such as the lack of clear and honest communication and the willingness to bend the rules show that the principles of corporate governance were not put in practice within these corporations. The author believes that by taking corporate governance seriously the scandals could have been entirely preventable.
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The Endorois case, the result of a long road – in other words, the protection indigenous peoples’ rights in the practice of the African human rights mechanism
Views:141The aim of the current article is to analyse the protection of indigenous peoples’ rights offered by the African human rights mechanism by introducing the Endorois Welfare Council vs. Kenya case[1] (hereafter: Endorois case). The author briefly introduces the preliminaries of the Endorois case, namely how the African mechanism was established and in doing so, he refers to the achievements of the African Commission on Human and Peoples’ Rights (hereafter: Commission) in the field of protecting the rights of the African indigenous peoples, also touching upon the critiques regarding its functioning. Then he briefly introduces why the Ogoni case[2]can be regarded as a milestone concerning the rights of indigenous peoples on the African Continent. In the second part, the author focuses on the Endorois case and analyses it in detail: he introduces both the matters of fact and the legal issues; furthermore he pays attention to the implementation of the decision. Finally, in the third part of the article, the author draws his conclusions based on the above mentioned and makes his recommendations.
The author has the opinion that the African mechanism has followed in the footsteps of the Inter-American System and has interpreted the already existing substantial norms in an evolutiv manner, thus achieving tremendous results in the acknowledgement and protection of indigenous rights. They did so with such success that now the “master” – namely the Inter-American Commission on Human Rights – is quoting the student.It follows from the above mentioned that – according to the firm opinion of the author – the African mechanism worth the attention both present time, both in the future, because new trends regarding indigenous rights could arise from the practice of the African Commission.
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Válaszúton – rendiség, abszolutizmus, polgárosodás? Hatalomgyakorlási modellek Jean Bodin Az államról című könyvében
51-57Views:116The article approaches Bodin's philosophy from historical aspect outlining the characters of age of reformation. The paper emphasizes, Bodin's work came into existence in a transitional time, wherein holy and profane views coexisted, often interspersed. The conception of Bodin reflects a relatively rational way of thinking introducing the state phenomena as parts of political power structure. The writing analyses the functions of state and their institutions and operation. The article introduces Bodin's ideas about the professional state control and its relations with our modern public administration.
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The criminal liability of the medical doctor
41-51Views:122The article introduces the criminal liability of the medical doctors in a nutshell. The topicality of this theme is exemplified by the increasing number of criminal procedures against physicians as trends show. During the introduction of the criminal liability of the medical practitioners, the article considers drawing a line between the liability of civil and criminal law of importance. After describing the matters concerning the drawing of line, the study is going to elaborate the legal brief of endangerment committed in the line of duty, followed by a review connecting the prior and the medical profession, presenting some legal cases, respectively. It is very essential to explore the legal brief of prohibited abortion and charlatanry, in addition to delineating the concepts of active and passive euthanasia, and, after having explained the refusal of provisions, it is necessary to aspire to draw a line between the prior mentioned and the legal brief of the assistance in suicide.
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The downing of flight MH-17 over Ukraine: analysis from the perspective of the Chicago Convention on international civil aviation – Summary
Views:83This paper addresses the downing of Malaysian Airlines flight MH-17 in 2014 from the perspective of the Chicago Convention on international civil aviation. Two issues are closely examined namely the applicability of Article 3bis on prohibiting the use of force by states against civil aircraft to the specific case and States’ obligation to close the airspace to civil aviation over conflict zones.
If the assumption of the Joint Investigation Team is correct in that flight MH-17 was shot down from a territory held by separatist groups it will be a legally challenging task to prove the necessary link to Russia requried by international law to determine state responsability for the breach of Article 3bis. The fact that the International Court of Justice has never delivered a judgement on merits concerning aerial incident cases due to the lack of jurisdiction does not advance the prospect for a reassuring conclusion of the case concerning flight MH-17 from the perspective of international aviation law.
The obligation to close the airspace by the state exercising sovereignty over the airspace over conflict zones is not spellt out explicitly in the Chicago Convention. States responsible for the airspace should however close their airspace if the airspace in question is not safe for civil aviation. The critical question remains whether the state responsible for the airspace has all the relevant information at its disposal when making the complex decision about closing the airspace. In case of a non-international armed conflict non-state actors are not obliged under the Chicago Convention to share aviation safety related information with the enemy state responsible for the airspace under international law over the conflict zone.
It is hereby proposed that binding regulations should be adopted either in the field of international air law or humanitarian law to the effect that during an armed conflict non-state actors co-operate in information sharing for the sake of guaranteeing the safety of (international) air traffic.
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The evolution of the judicial practice with regard to the liability for comments
39-49Views:73The article focuses on the examination of the judicial practice related to the liability for reader’s comments. Comments have become an important instrument for internet communication and expression, however they also cause specific legal problems.
Internet Content Providers (ICP) have offered such content so far, disclosure of which was the result of editorial’s decision, but now they play a role in the disclosure of such contents, that they do not have direct contact with.
The examination of liability for comments is further complicated by the features of the online environment, because the courts shall have to overcome the problems of the scheme of special definitions.
Courts have failed as yet to provide a satisfactory solution for the problem: who shall remain liable for the infringements appearing in anonymous reader’s contents? Therefore the article is an attempt to present the development of the judicial practice from the beginning to the current opinion appearing these days.
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Az orvostudomány elméleti, gyakorlati eredményei és a büntetőjog kapcsolata
1-8Views:106In the 19th Century the results of the natural sciences – physics, chemistry –, the technical
achievements incorporated in the medical science, and made the medical science an intensive
progress. This article presents the scientific results, which have the largest relevance regard
the criminal law and which have a significant impact on the science of criminal law and its
affiliates.
The advance of medical science results the appearance on the one part the expansion of the
medical knowledge and medical tasks, on the other hand new offenses and new types of
evidence. The practical application of the results of medical research into the criminal
procedure (blood tests, DNA test, etc.) allows primary the faster detection in the investigative
stage of criminal proceedings, and the making of more reasonable judgments. On the territory
of psychiatry are very important the results of research of the state of consciousness, that
influence the offenders culpableness, because they give an answer to the question, in what
consciousness was the offender at the time of the crime.
This article submitted the most important correspondences of the medical science and
criminal law, and it is established, that the results of the medical science support the further
development of the criminal law and its affiliates. -
Simplification of civil procedures in the European Union, the regulation of small claims procedures in particular
Views:41Introduced to reduce obstacles to the free movement of goods and persons, judicial cooperation in civil matters has become part and parcel of the new European area of justice. Creation of this area is meant to simplify the existing legal environment and to reinforce citizens' feeling of being part of a common entity. The Conclusions of the Tampere European Council state in this respect that “in a genuine European Area of Justice individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal or administrative systems in the Member States.”
At present, the judicial cooperation in civil procedures is based on the Hague Programme, adopted by the 2004 Europen Council in Bruxelles.The Hague Programme requires that the Commission should translate the Hague objectives into concrete measures. To this end, the Annex to the Communication from the Commission to the Council and the. European Parliament on the Hague Programme, consists of an Action Plan listing the main actions and measures to be taken over the next five years, including a specific set of deadlines for their presentation to the Council and the European Parliament.
The chapter dealing with this area is named „Strengthening justice”, and it includes amongst others the following tasks:
- Specific Programme on Judicial Cooperation in Civil and Commercial Matters (2007)
- Support by the Union to networks of judicial organisations and institutions (continuous)
- Creating a „European Judicial culture”
- Evaluation of quality of justice (Communication - 2006)
- Creation, from the existing structures, of an effective European training network for judicial authorities for both civil and criminal matters (2007)
The European Union has set itself the objective of maintaining and developing the European Union as an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters needed for the proper functioning of the internal market.
The Community has among other measures already adopted Council Regulation (EC) No 1348/2000 of 29 May 2000, on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; Council Decision 2001/470/EC of 28 May 2001, establishing a European Judicial Network in civil and commercial matters; Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Council Directive 2002/8/EC, of 27 January 2003, to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; Council Regulation (EC) 2201/2003, of 27 November 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000; Regulation (EC) No 805/2004, of the European Parliament and of the Council of 21 April 2004, creating a European Enforcement Order for uncontested claims; Proposal for a regulation of the European Parliament and of the Council creating a European order for payment procedure; Proposal for a regulation of the European Parliament and of the Council establishing a European Small Claims Procedure.
The disproportionate cost of litigation for small claims has led many Member States to provide simplified procedures for claims of small value which are intended to provide access to justice at a lower cost, thus influencing one of the three factors that determine the rationales in dispute resolution. The details of these procedures have been investigated and documented in detail in studies prepared for the Commission. The evidence from these reports suggests that the costs and timescale associated with the domestic simplified measures, and thus their use and utility to claimants, varies widely. A 1995 study for the Commission found evidence of how costs of cross-border claims were significant compared to the size of most potential claims, and that these costs varied substantially between Member States. The total costs of pursuing a cross-border claim with a value of € 2.000 was found to vary, depending on the combination of Member States, from € 980 to € 6.600, with an average quoted figure of € 2.489 for a proceeding at the plaintiff’s residence. The study also showed that due to different and conflicting costing rules part of the costs have to be paid even by successful plaintiffs.
On 20 December 2002, the Commission adopted a Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation. The Green Paper launched a consultation on measures concerning the simplification and the speeding up of small claims litigation.
The European Small Claims Procedure is meant to simplify and speed up litigation concerning small claims, whilst reducing costs, by offering an optional tool in addition to the possibilities existing under the laws of the Member States. This Regulation should also make it simpler to obtain the recognition and enforcement of a judgment given in a European Small Claims Procedure in another Member State, including judgements which were initially of a purely domestic nature. In order to facilitate the introduction of the procedure, the claimant should commence the European Small Claims Procedure by completing a claim form and lodging it at the competent court or tribunal. In order to reduce costs and delays, documents should be served on the parties by registered letter with acknowledgment of receipt, or by any simpler means such as simple letter, fax or email. The procedure should be a written procedure, unless an oral hearing is considered necessary by the court. The parties should not be obliged to be represented by a lawyer. The court should be given the possibility to hold a hearing through an audio, video or email conference. It should also be given the possibility to determine the means of proof and the extent of the taking of evidence according to its discretion and admit the taking of evidence through telephone, written statements of witnesses, and audio, video or email conferences. The court should respect the principle of an adversarial process. In order to speed up the resolution of disputes, the judgment should be rendered within six months following the registration of the claim. In order to speed up the recovery of small claims, the judgment should be immediately enforceable notwithstanding any possible appeal and without the condition of the provision of a security. In order to reduce costs, when the unsuccessful party is a natural person and is not represented by a lawyer or another legal professional, he should not be obliged to reimburse the fees of a lawyer or another legal professional of the other party. In order to facilitate recognition and enforcement, a judgment given in a Member State in a European Small Claims Procedure should be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition. Since the objectives of the action to be taken namely the establishment of a procedure to simplify and speed up litigation concerning small claims, and reduce costs, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article this Regulation does not go beyond what is necessary to achieve those objectives.
The European Council underlines the need further to enhance work on the creation of a Europe for citizens and the essential role that the setting up of a European Area for Justice will play in thisrespect. A number of measures have already been carried out. Further efforts should be made to facilitate access to justice and judicial cooperation as well as the full employment of mutual recognition. It is of particular importance that borders between countries in Europe no longer constitute an obstacle to the settlement of civil law matters or to the bringing of court proceedings and the enforcement of decisions in civil matters.
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The civil liability of the medical doctor
28-42Views:294The article wish to briefly cover the civil liability of the medic. The actuality of this topic is exemplified well by the fact that court trials for compensation of damages against healthcare providers show an increasing tendency year by year. It is deem important to briefly delineate the drawing of line between the civil and criminal liability during the presentation of the civil liability. After speaking about issues of drawing of line, the study is going to cover the effective liability for damages of the medic. While explaining the liability for damages of the medic, it will cover the concept of legal nature of invasive procedures, matters concerning the liability of healthcare institutions, and the basic topics of tort and contractual liability. The article is going to introduce the issues concerning illegality, the patient’s right to self-determination, his or her right to information, the obligation of medics to disclose information, in addition to matters related to the concept of the legal nature of informed consent along with the connected judicial practice in the chapter about the informed consent of the patient. As for closure, during the analysis of issues regarding evidence, it wish to cover the rules of culpability, the choice for healing methods of medics, and medical documentation, respectively.
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Some Thoughts on Participation of Civil Organisations in the Process of Policy- and Law Making in Hungary
10-26Views:104Among the tools of including the concerned elements of society into the decision making processes the government operating since 2010 rather prefers the non-legal ones (i.e. those which do not constitute direct obligations for the government); rather solutions outside of the legal system are put into focus. Therefore the so-called national consultation, which – among others, such as sectoral, professional and other negotiating forums – introduced in Hungary a previously unknown political technique: within two years – in ordinary mail – each citizen received two surveys with possible answers to choose from, furthermore, – as a method not really used before in Hungary – an information booklet was sent to all citizens with the right to vote which presented the newest pieces of legislation.
Looking beyond political slogans and pathetic forms it may be well observed that the government expects from the method of crowdsourcing – which may be considered traditional in other countries – as well as from different online consultations and the introduction of new means (surfaces) of information the establishment and deepening of discussion (cooperation) with society. Among the new means of information we shall mention that the government of Hungary created its websites civil.kormany.hu and kozhasznusag.kormany.hu related to the civil sector (in broader sense about legislation related to the civil sector). The websites – according to the intentions of the government– are part of the process of changing the attitude aimed at with the new act on the civil sector (Act CLXXV of 2011 on right of association, non-profit status, operation and support of NGOs), through which the government wishes to establish transparent connections with the civil sector.
In Article 7 of the new Act CXXX of 2010 on legislation the two basic form of social compromise are described, general negotiation and direct negotiation. The former one provides opportunity for sharing opinion on the website of the organisation publishing concepts, drafts (in a way which obliges the organisation which asks for the opinion, e.g. through confirmation obligation or through preparing summaries on the merits), while the latter one allows the concerned minister to directly request persons and organisations to give opinion. A specific form of direct negotiation – creating obligations on the side of the minister – is the institution of strategic partnership, the framework of which is settled in a thorough agreement. One material weakness of the regulation, however, is that Article 13 paragraph (2) of the act only lists in an exemplary way those with whom such partnership may be concluded, by mentioning forms of organisations (e.g. church, trade union, civil organisation). -
The impact of inflation on private law relationships
45-72Views:237Not for decades have we seen price rises in Hungary, or in Europe and the world in general, such as those faced by the developed world in 2022. Inflation in Hungary was 24.5% in December 2022 and in January 2023, the indicator stood at 25.7%. This article provides a summary of the key concepts related to inflation, going beyond a definitional approach to inflation to cover its types and the most important principles and methods of measuring it. Economic foundations fundamentally determine private legal relations and legal institutions. In such a situation, crisis legislation is triggered, primarily in areas that have the greatest impact on the functioning of the economy and on consumers' daily lives. The present article reviews those important civil law structures and the rules governing them in the Civil Code and other statutory and governmental regulations, the content of which is justified to be amended in a persistent inflationary environment, but which have not been the focus of the legislator so far, emphasizing the need to adapt private law norms to the changed economic environment. The article examines those legal acts in which the legislator has set out in the text of the act data referring to value or price, nominally defining and quantifying in concrete terms the price or value that plays a significant role in a given private legal relationship. This type of legislation, however, does not take into account the changes in value relations at all, so that in an inflationary environment, the price and value figures nominally fixed in the private law norm are not adapted to economic processes, i.e. they are not in line with the current price level determined by economic fundamentals. The author outlines proposals and regulatory techniques for amending the law to adapt these legal provisions to the changed price and value conditions.
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Overview of the Case-Law of Article XX of the Basic Law of Hungary with an Outlook for the UN Indicator of Direct Applicability
25-37Views:170The right to health as a human right still faces the dilemma of justiciablity. In order to overcome this obstacle, the qualitative indicator of ’direct applicability’ was introduced within the monitoring mechanism of the International Convention of the Economic, Social and Cultural Rights in 2009. This seems to be potential as a next generation indicator in the legal aspect of realization of the right to health according to László Buza, who declared that the programmatic norms of international human rights law are in need to be evaluated to reach the status of real norms. In this respect, I made research into the Basic Law of Hungary with particular attention to Article XX within the practice of the Hungarian Constitutional Court. Besides the tenth anniversary of the acceptance of the Basic Law, the recent practice of the Constitutional Court has not been reflected in state reports yet. This research is further based by the statement of the Constitutional Court, namely it is committed in examining the relevant international and regional legal and policy aspects. To the aim of research, I investigated the ’direct applicability’ indicator as interpreted so far by the Constitutional Court and its obstacles with particular focus on the right to health and right to health care, supplemented with the aspect not indicated in state reports.
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Right to the fair trial in the case-law of the European Court of Human Rights against Hungary, with special regard to the requirement of reasonable period of time
31-41Views:154As for the right to a fair trial sanctioned by the convention, our most determining deficiencies arise regarding the compliance with a reasonable period of time. Despite of the relatively small number of the Hungarian infringements of the European Convention on Human Rights, the expectation of sufficiently efficient dispositions eliminating the prolongation of the judicial procedures applies for Hungary as well.
In general, it can be concluded that the Hungarian legal system provides the basic human right to fair trial. This claim is supported by the low number of infringements in Hungary. In this study I sought to present the data related to the Hungarian cases proceeding at the European Court of Human Rights, as well as elementswarranting the emergence of the right to a fair trial assured by Article 6, together with the aspects during the monitoring of the cases of the prolongation of the judicial procedures respected by the Court of Strasbourg. Finally I aimed to delineate the aforesaid apropos of a representative and an exceptional case in respect of the practice of the Court as well.
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The most common practical problems of summary offence against property, particulary theft and fraud
42-53Views:85In this study, based on the procedure of the Central Summary Offences in Hajdú-Bihar, I will try to present the most common practical problems of summary offence against property (particulary theft and fraud),
First of all, my article describes the legal background as to why summary offence procedure is called „petty criminal law” in Hungary, and as a result what legal basis are being used for criminal concepts.
In the second part of the study I will present some resolution to the most common and the most important legal imperfections and problems.
Last but not least I will make an attempt to disclose the most common issues, which might occur in the so-called „quick procedure”, the „bring to court”.
In summary I hope, my study can be of useful assistance to the summary offence procedure and can elevate standard/level of the procedure.
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Honestly about the Closed Doors - Do Persona Non Gratas Participate in the Psychological Expert Examinations in the Criminal Procedure?
73-78Views:90Authorities and courts are supported by various experts from a long time in the process ofdomestic criminal procedures, howeverlegalpsychologyis a pretty young profession in this field. Despite of its brief history it has achieved stability in the system of criminal sciences and has an outstanding role in influencingjudgementon cases. What happens when this specialty itself becomes the subject of an expert procedure? My article willtryto answer this question. I examine the mechanisms of hungarianlegal psychological expertingthrough personal features of the experting-examination within thecriminal legal procedures of law. At the same time I verify thepresumption that thesecomponents work unrealistically and dissimilarly to the actual practice due to thenatureof current legislations. My hypothesis is supported by four interviews with legalpsychological experts and relevant statistical data brought from the analysis of thirty-one cases from TheCourt of Law of Debrecen, between 1st Jan 2000 and 15th Jul 2016. In the last section of my work I propose individual recommendations and guides for the legislator in relation to the earlier highlighted defects.
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A büntetőjogi mediáció gyakorlati aspektusai
1-12Views:125Mediation is a conflict-management method designed to achieve restorative justice (offenders should assume responsibility and pay the penalty for their deeds, with the greatest emphasis on reparation of the victim, and the affronted community should be conciliated). This method may be applied to solving a variety of disputes or conflicts (e.g. disputes involving neighbours, families, couples, and companies).
The mediation technique has already been used in the fields of civil law, family law and employment law. From 2007 onwards, it can also be applied in criminal procedures. According to Article 221/A of the Code on Criminal Procedure (Act XIX of 1998) the mediation process may be used in criminal procedures dealing with certain offences against the person, property or traffic offences if the crime is punishable with no more than five years imprisonment, and the offender has made a confession during the criminal investigation. -
The lead of the proceedings and the subjectivity of the judges – influence in the courtroom
59-65Views:156The image of the judicial proceeding and the impressions of the participants are defined by various facts. These are important things, because the prestigious environment and the skill-based human approach are key factors in the acceptance of the judgments. The article analyzes the possibilities of the judicial influence through examples: like the condition of the buildings, the appearance and behavior of the employees and the staff. The statements made by the accused during the investigations are also very important within these topics, because they can justify the charge and predict the process of the proceedings. The personality of judge has great importance in the lead of the proceedings – for example tone, questioning style, situation awareness and logic. These things above are definitely specify the way of the proceedings.
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Fragmentation and changes in Hungarian succession law
81-103Views:245The right to inherit is recognized in the Fundamental Law, the detailed substantive legal rules are laid down in the Seventh Book of the Civil Code. In recent years, the legislator has formulated rules of substantive succession in other legislation beyond our private law code (the Civil Code). According to the Registered Partnership Act, the rules applicable to the spouse apply mutatis mutandis to the registered partner, which means that the registered partner is also a legal heir. The special rules for the acquisition of ownership of agricultural and forestry land by succession by will are laid down in the Land Traffic Act (Act CXXII of 2013). On 1 January 2023, a new law will enter into force (Act CXLIII of 2021), which will supplement the succession law provisions of the Civil Code in the case of joint legal intestate succession of undivided common ownership of agricultural land by several heirs. The designation of a public body to represent the State in succession matters is provided for in a separate ministerial decree. The present article analyzes how all these complex, fragmented regulations make it difficult to enforce the law and the extent to which it hinders the speedy execution of probate proceedings. The present article criticizes the fragmented regulation and proposes the integration of the rules of the separate laws into the Civil Code, as this could contribute to a more efficient application of the law.
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Ethical and environmental questions about the subjectivity of living beings
Views:138In the focus of the discipline of environmental ethics stands the moral relationship between human beings and the environment. The development of this science was necessary due to the traditional anthropocentrical approach, which provided an excellent moral base for the exploitation of our natural environment.
Although nature was the focus of much of nineteenth and twentieth century philosophy, contemporary environmental ethics only emerged as an academic discipline in the 1970s. Basically two main lines can be distinguished: the invidualistic and the holistic approach. The main idea of individualism (biocentric), similarly to traditional anthropocentrical paradigm, is that only individuals can represent value, which must be respected by others. These individuals are not only human beings, but all living being?, because each individual living thing in nature - whether it is an animal, a plant, or a micro-organism - is a ‘teleological-center-of-life’ having a good or well-being of its own which can be enhanced or damaged, and that all individuals who are teleological-centers-of life have equal intrinsic value (or ‘inherent worth’) which entitles them to moral respect. The holistic approach offers a totally different solution by extending the moral concern to the whole biosphere.
Hereinafter this article, along with the most popular disciplines of environmental ethics, examines whether non human beings can have legal standing or not.
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Child Offenders and Victims
52-62Views:474In this article an evergreen topic will be discussed again and certainly not for the last time ...
After the presentation on the children of the information society, – the "Z" generation currently living its childhood –, their specific problems and their living space, and after discussing the psychological and sociological background, legal history, and last but not least, the statistics, – I am looking for answers in my study such as what factors, data, precedents motivated the legislature to modify the punishable age for crime, furthermore, whether the more than three years since the entry into force of Law C of 2012 have confirmed the decision to be correct. I will also make mention of victims because of the considerable overlap between the perpetrator and the victim circles characterizing juvenile crime, showing the process which broadens the victims’ rights besides the ever stricter penal policy.
Have hopes regarding the new regulations proven right? What else can the legislature do, and what can we do for our own children?