J. Banach-Gutierrez

 

The Right to Fair Trial in International Criminal Law - S. Milosevic’s Case (Croatia, Bosnia and Herzegovina)

Summary

 

In Her article, the author discusses the problem of individual liability in international law against the backdrop of the implementation of the principle of fair trial in the proceedings before the international criminal court. With S. Milosevic’s case as an ex ample, the author points out that the International Criminal Tribunal for the Former Yugoslavia spares no effort to make the proceedings meet the requirements of fair trial.

The establishment of common procedures and rules of evidence by the International Criminal Tribunal for the Former Yugoslavia create favourable conditions for the defendant to be tried fairly in the penal proceedings. This rule refers to the trial of the former Yugoslavian leader, Slobodan Milosevic. Before the discussion on the individual liability of the former state leader, the article presents the institution of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the scope of liability before the tribunal as well as the historical background to the trial for the war crimes in Croatia, Bosnia and Herzegovina.

The author stresses the influence of the international human rights protection over the strengthening of the fair trial principle both before national courts and international criminal tribunals. Furthermore, while performing the legal and comparative study, the author underlines that the model of international criminal tribunals is subject to gradual changes taking as its objective the most efficient system of prevention and penalisation of persons answerable for international crimes.

The system, as show by the hitherto practice, calls for further effort of the international community to enhance its efficiency and reliability of conducted criminal actions. The trial of the former Iraqi leader, Saddam Hussein, testifies to this claim. His death sentence and execution in December 2006 by the Iraqi Tribunal exposes certain deficiencies of the international justice, for both the trial and the execution of capital punishment in many experts’ opinion noticeably violated international law.

However, when it comes to the trial of S. Milosevic no such reservations were made as the ICTY complied with the fair trial principle granting the defendant all the possible proceedings security.

 

Prof. Janina Ciechanowicz-McLean

The Baltic Pipeline and the International Law

Summary

 

The designed gas pipeline along the bottom of the Baltic Sea will connect Russia and Germany. Is the Polish government right to oppose this construction as the pipeline is going to bypass the Polish territorial waters and run through the open sea outside the Polish jurisdiction? Our raison d’état and ecological safety requires to take stance on this issue.

This construction poses ecological threat. The provisions of four international conventions may help keep at bay the hazard of any pollution, including the pipeline effects.

The first document is the United Nations Convention on the Law of the Sea (UNCLOS) of 1982 signed in Montego Bay which contains crucial provisions for the protection of the sea environment. It is ius cogens. It requires the international cooperation of states in this respect. It is of particular importance for the Baltic Sea which is a half-open sea.

Another convention is the Helsinki Convention of the Protection of Maritime Environment of the Baltic Sea of 1992. It protects the sea against all sorts of pollution and explains that their effect can be the damage of biological variety of the sea by the destruction of sea life and resources. The executive body of the convention - HELCOM – should take active part in the monitoring of the gas pipeline preparation.

Next, the Espoo Convention Environmental Impact Assessment in Transboundary Context of 1991 which regulates the issues of environmental protection related to borderland investment of considerable impact on the surrounding area. What follows, the impact assessment should be held with the public opinion of the threatened party participating.

The last document worth mentioning is the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 1998. Everybody is entitled to the rights enumerated in the title. Hence, they should be relied upon in the protection of the Baltic Sea against possible ecological disaster.

 

Conclusion: International law guards against further pollution of the maritime environment. In the light of the binding conventions, this protection is obligatory for the undersigned states even if they conduct permitted activity on the open seabed such as the construction of the Baltic gas pipeline. Thus, Poland expressing its stance on this issue is concerned with the Polish raison d’état, ecological safety and international justice.

 

Z. Hładun

The Human Right In Sphere Of Public Health In Ukraine

Summary

In the article an attempt to analyse the human right in sphere of public health іs made. The development Ukrainian legislation, which adjusts these questions is shown. There are аnalysed rates to Constitution, Basis legislation of the Ukraine about public health and other normative-legal acts, is paid attention forming administrative-legal mechanism to realization of the specified rights.

The author draws a conclusion about gradual rapprochement of the rates ukrainian legislation about public health and corresponding to rates of the international law.

 

 

G. Jędrejek

Admissibility of Civil Action in Assertion of Remuneration for the Safekeeping of Movable Things Seized under Criminal Proceedings

Summary

The article discusses the issues related to the assertion of remuneration for the safekeeping of vehicles “left” by the police officers. Firstly, the legal procedure of asserting a claim raises doubts as to whether recourse to law is admissible before civil court or whether the remuneration for safeguarding a vehicle is the cost of the criminal proceedings. Secondly the manner of assessing the remuneration, including interest, is not clear. The article poses a question of whether the keeper consenting to leave a vehicle in a manned car park elects to take the civil or criminal procedure to assert their financial claim. In either case, the court should provide the interpretation of the keeper’s will who agrees to safeguard the vehicle seized during the criminal procedure. If the interpretation leads to a conclusion that the keeper agreed to treat their remuneration as “the costs of criminal proceedings”, then the case is excluded from civil procedure. According to Article 11 of the Code of Civil Procedure, a civil court is not bound with the level of remuneration for the safekeeping of a vehicle, which has been determined in the criminal action as the so called costs of proceedings.

 

A. Mezglewski

 

The Deficiencies of Cases Prosecuted as Petty Offence of Limiting Person’s Right to Defence

Summary

 

The article is a continuation of the author’s research on the legal status of a person held suspect of committing a petty offence. It includes the author’s observations concerning the deficiencies of cases prosecuted as petty offences which negatively impact the suspect’s situation. The deficiencies follow from the binding regulations (petty offences’ code) and from well-observable inappropriate practices of authorities conducting the proceedings (the police, courts of law, other penal bodies).

 

J. Skoczylas

The Functions of Civil Liability and their Relation to the Notion of Damage

 

Summary

 

In his article, the author discusses the function of civil liability and their relation to the notion of damage in a manner that is done and should be done in the case of liabilities, in particular liability for damages. The main function, strictly connected with the idea of liability for damages, is the compensatory function of this liability. This function consists in the compensation for the person suffering damage. The compensation should correspond to the size of the damage incurred by the injured party. Hus, it should be stressed that the compensatory function would not take effect if the compensation were lower that the damage. Likewise, it cannot exceed the damage because it should not be the source of unjustified enrichment. This function of liability for damages also encompasses the injured party’s satisfaction which is of importance if they suffered a non-material damage. The function in question is provided for in Article 361 Section 2 of the Criminal Code as the principle of full compensation. Another function worth mentioning, and controversial in the doctrine, is the preventive function of liability for damages. It is sometimes referred to in the literature as preventive and educational function although the claim of educational role of civil liability regulations is a thing of the past.

The article further stresses that the preventive function is supposed to prevent damages and its role appears in the field of liability as guilt. Prevention is of particular importance in the case of liability for the violation of personal interest (see Article 448 of Criminal Code). This leads to a conclusion that the liability for damages itself has preventive effect, regardless of whether the injured party obtain compensation for harm.

Of minor weight, however, is the third function of the liability in question, namely repressive one. It is non-existent in modern civil law and its infrequent manifestations (e.g. Article 448 of Criminal Code) can be explained by specific system of relations regulated by the positive law.

Finally, the author draws attention to the function named repartition and insurance. It consists in the distribution of the damage suffered by an individual among more numerous group of the same community (e.g. insurance distribution).

All in all, the article provides the answer to the question of whether the new socio-economic system has impact on the revision of attitudes to the functions of liability for damages in the context of the notion of damage.

 

Wąsek-Wiaderek

 

The Prerequisites of the Exclusion of a Judge under Article 41of the Code of Penal Law and the Legal Standard of Impartial Tribunal as Defined in the European Convention of Human Rights

 Summary

The article aims to determine whether the judge’s prior judgement on incidental case or on the criminal liability of the co-perpetrator of the prohibited act should be qualified as the premise for the exclusion of the judge from further judgement on account of his or her impartiality (Article 41 of the Criminal Code). Some further problems discussed: admissibility of judgement on criminal liability by a judge who during the proceedings decided on the preventive detention of the defendant; admissibility of a judge participating in the bench in a case if he or she decided on giving a suspect the status of a crown witness and the issue of the prerequisite for the exclusion of a judge on account of his or her impartiality caused by previous judgement in a separate proceedings concerning the co-perpetrators of the prohibited act. In the doctrine and judicial decisions (also in the jurisprudence of the European Court of Human Rights) there is a predominating opinion that a judge’s decision about the preventive detention of the defendant does not exclude him or her from adjudication. The situation of a judge who decided about the status of a crown witness may be considered doubtful as for impartiality, yet there should be no allowance made for the automatic exclusion of such a judge from adjudicating. The circumstance of judge previously deciding on the criminal liability of the co-perpetrators of a prohibited act is, according to the latest decision of the Supreme Court, a prerequisite of exclusion under Article 41 of the Criminal Code. The Supreme Court decided that such a case should become a rule. The necessity for such a high standard of protection of impartiality is not reflected in the recent Strasbourg judicial decision. Thus, one can observe that the Polish legal standard of impartiality guarantee in adjudication is going further that the standard established in line with Article 6 of the European Convention of Human Rights.

 

H. Witczak

 

The Liability for the Obligatory Portion of the Inheritance

Summary

 

The persons entitled to the obligatory portion are the descendants, spouse and bequeather’s parents if they inherit under a statute. The basic element of the right to the portion is the claim for the payment of a sum of money reimbursing for the portion or as its supplement. If the person entitled to the obligatory portion does not obtain the equivalent of the portion or its part in the form of gift from bequeather, appointment to inheritance, or in the form of bequest, then the entitled person can claim for the supplement of the portion as a whole or of its part. The content of this claim is dependent on the bequeather’s will; they may bestow the living (gift) and dispose of their property in the case of death (last will).

The obligation to satisfy the claim for the obligatory portion arises during the opening of the succession and is an inherited debt. The group of entities obliged by way of the obligatory portion has been defined, as compared to other inherited debts, quite extensively. On the one hand, it is the inheritors to be held liable, on the other – the devisees. Moreover, the Civil Code allows the inheritor to transfer the burden related to the portion claim onto the property devisees or beneficiaries. The inheritors are obliged to satisfy the claim for the obligatory portion, yet may demand proportional reduction of bequest or decrees.

The inheritors are jointly liable for inherited debt, including obligatory portion debt. After the division, every inheritor is independently accountable for their share. From among few bestowed persons, the one bequeathed last is liable as the first.

The Civil Code sets the limitations of the liability for obligatory portion. The statutory limitation of the liability for the obligatory portion concerns the inheritor concurrently entitled to the portion. Separate regulations pertain to the liability of inheritor entitled to the obligatory portion for other entitled persons’ portions and for bequests or decrees. The limitations do not aim at the inheritor keeping their own obligatory portion. The scope of liability of the devisee has also been statutorily reduced. As a rule, the devisee is liable for the obligatory portion only up to the limits of enrichment resulting from the gift. If, however, they are entitled to the portion, they liability is limited to the surplus exceeding their own obligatory portion.

It seems that the binding regulations guarantee the entitled person full satisfaction of the claim for the obligatory portion also when they are liable by way of the obligatory portions of other entitled persons.

K. Wójcik

 

Legal Situation of Germans in the Kingdom of Poland in 1915

 

Summary

 

The article discusses the situation of the population of German origin in the Kingdom of Poland in the year 1915. Shortly after the outbreak of the Great War, the tsarist policy towards German settlers in Poland changed dramatically. The adoption by the Cabinet of the so called February Acts in 1915 contributed to further limitation of Germans’ rights. The February Acts introduced the ban of property purchase by “the citizens of the states being at war with Russia, German emigrants and colonists”, and the restrictions in property inheritance as well as the regulations on the land trade. The most radical form of interference with the civil rights of the German colonists of the territory of the Kingdom of Poland was the tsarist order to deport them Russia. The number of expatriated German colonists is estimated 140 thousand people. Their property was immediately confiscated. The tsarist censorship banned the distribution of publications of religious and political character. The February Acts opened the door to tsarist orders concerning the displacement of the German settlers from the Kingdom of Poland and, consequently, the citizens of Evangelical denomination. It led to, for instance, significant demographic losses in the areas with considerable percentage of German settlers in the local population.