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1.
Immunity of Heads of State and High-Ranking State Officials for International Crimes : magistrsko delo
Admir Muratović, 2021, magistrsko delo

Opis: The present thesis is devoted to the immunity of Heads of State and high-ranking State officials, generally meaning the Heads of Government, and the Foreign Ministers, before the national and international courts, for international crimes as codified in the Rome Statute of the International Criminal Court (ICC), namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression, with partial touch upon the crime of torture as well. The introductory part lays out the prosecution of State officials throughout the history all the way to the World War II, the Nuremberg and Tokyo Trials, and the developments in the decades post-World War II, with the eventual establishment of the ICC. Afterwards, the definitions and list of international crimes are discussed. Following the arguments for the rationale behind immunity and the correlation between immunity and jurisdiction, I elaborate on the various types of immunity, such as State immunity – and its subcategories personal and functional immunities – and diplomatic immunity. Thereby, I discuss at length the range of seemingly outstanding questions relating to, e.g., the scope of State officials entitled to immunity ratione personae, whether the commission of international crimes constitute officials acts, whether the immunity of State precludes a lawsuit towards State for breaches of jus cogens norms by acts that qualify as acta jure imperii, whether the diplomatic immunity pertains to high-ranking State officials other than ambassadors and diplomatic agents, etc. The explanations of other, less debatable questions, such as the distinction between personal and functional immunities for international crimes before national courts, is also provided. In the following part, I analyse the immunity of the incumbent high-ranking State officials before international courts, with a particular focus set on the ICC and Article 27 of the Rome Statute. Emphasizing provisions concerning international cooperation and judicial assistance to the ICC, I bring up Article 98 of the Rome Statute as a counterweight to the rejection of immunity before the ICC, and consider the interplay between both, Articles 27 and 98. Another point of divergence here is the question of which States fall under the scope of the term ‘third State’ in Article 98 of the Rome Statute. Furthermore, the analysis of the Al-Bashir case is provided through the application of the United Nations (UN) Security Council Resolution 1593 (2005), as well as Articles 25 and 103 of the UN Charter. Additionally, I intend to provide a method of resolving some of the ambiguities stemming out of the seemingly contradicting Rome Statute provisions by applying the rules of treaty interpretation, in particular its subsidiary means, discerning the object and purpose of the Rome Statute through the lenses of its Preamble. In the final part, I have sought out various other concepts that could supersede the immunity of high-ranking State officials for international crimes, including the jus cogens international crime exception to immunity, the obligation aut dedere aut judicare, and the universal jurisdiction.
Ključne besede: State immunity, immunity ratione personae, immunity ratione materiae, Heads of State, high-ranking State officials, international crimes, international courts, International Criminal Court (ICC), Rome Statute, Al-Bashir case, UN Security Council
Objavljeno v DKUM: 23.07.2021; Ogledov: 468; Prenosov: 65
.pdf Celotno besedilo (998,44 KB)

2.
Case studies of independent audits of police financial operations by the Court of Audit of the Republic of Slovenia
Bojan Tičar, Jona Koren Fric, 2020, izvirni znanstveni članek

Opis: Purpose: This paper presents an overview of audit-case studies of the Slovenian Court of Audit where the audit subjects were Police financial operations. In relation to other state authorities, the Court of Audit of the Republic of Slovenia is an autonomous and independent state authority that supervises the use of public funds. The Court of Audit supervises all bodies and authorities in Slovenia that are users of public funds, including the Police. Design/Methods/Approach: Research design of this paper is the set of three research methods used in collecting data and analysing findings. First method is descriptive analysis of legal regulations. Second research method is case-study analysis. Third research method is observational study based on direct interview. Synthesis is presented in the conclusions. Findings: The Court of Audit reviews the credibility of the response report of auditee after audit. If the Court of Audit assesses that the remedial actions were not satisfactory and that the user of public funds violated the obligation to ensure operational efficiency, the Court of Audit may issue a call for remedial action and serve such on the competent authority, which can take measures against the auditee. As the Police are a direct user of public funds, the Court of Audit has the power to carry out an audit of the operations of the Police based on the law. The Police as whole have never been the subject of a regularity or performance audit by the Court of Audit. Research Limitations / Implications: We have limited analysed in details only those cases where police units were subjects of audit performed by Slovenian Court of Audit. Originality/Value: The Police have been the subject of three audits in time from beginning of Court of Audit operations and today. These cases are presented in the quality analysis. Based on this quality analysis, authors have also addressed some questions directly to the Court of Audit of the Republic of Slovenia, i.e., in the form of a directed interview. The questions concerned external audits of Police operations by the Court of Audit and an assessment of the cooperation of the Court of Audit with the Police. Our research results are presented in the end of this article. In conclusion, the standpoints of the Court of Audit in fact support our previous findings presented in this paper.
Ključne besede: Slovenian Police, Slovenian Court of Audit, mandatory audits, regularity audits, performance audits, legal regulation of the Court of Audit
Objavljeno v DKUM: 11.06.2021; Ogledov: 354; Prenosov: 8
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3.
The cross-border enforcement of court settlements within Brussels Ia Regulation : from a European and an Austrian perspective
Philipp Anzenberger, 2020, izvirni znanstveni članek

Opis: Despite the enormous practical relevance of court settlements, the Brussels Ia Regulation contains only a few explicit provisions for the cross-border enforcement of this legal instrument. This can cause difficulties in borderline cases, for example when it is doubtful whether the legal act in question is to be classified as a settlement or a judgment or which specific European regulation is applicable to a settlement containing several different claims. This paper provides a general overview of the rules for the enforcement of court settlements under the Brussels Ia Regulation and examines some problems that may specifically arise in the case of cross-border enforcement of court settlements.
Ključne besede: court settlement, Brussels Ia Regulation, cross-border enforcement, recognition, scope, judgment, certificate, exequatur
Objavljeno v DKUM: 15.01.2021; Ogledov: 242; Prenosov: 0

4.
The need for a unified patent court
Eugénio Lucas, 2020, izvirni znanstveni članek

Opis: This article discusses the need of a Unified Patent Court, as a major contribution for the implementation of the European unitary patent. It begins by outlining the evolution of European patent rights and identifying the problems of the current system. Implementing a Unified Patent Court will be defended as a solution for one of the most important problems of the European patent: the lack of a central mechanism of jurisdictional control. The current model of jurisdictional control gives rise to a situation of great legal uncertainty and has diminished the value of European Union patent rights. We will analyse the virtues and disadvantages of the new European Unitary Patent resulting from the adoption of Regulations (EU) 1257/2012 and 1260/2012 and the Agreement on a Unified Patent Court.
Ključne besede: unified patent court, European unitary patent, European patent convention, patent itigation, European patent system
Objavljeno v DKUM: 15.01.2021; Ogledov: 297; Prenosov: 0

5.
An overview of the law of attorney fees in the United States : the American rule is not so simple after all
Thomas Allan Heller, 2018, izvirni znanstveni članek

Opis: It often is said that in the United States each party pays their own attorney's fees, win or lose, absent a contractual provision to the contrary or some recognized ground in equity. This basic proposition, which is true as far as it goes, is based on the so-called American Rule, which provides that in the United States each side in a litigated case is responsible for paying their own attorney, regardless of the outcome of the case. On its face this proposition seems simple. On the contrary, however, the laws in the United States governing attorney's fees are surprising quite complex. This article provides a general survey of the patchwork of laws, federal and to a lesser extent state, and the author will demonstrate that rules and laws governing attorney's fees are often grounded in important public policy and fundamentally shape important issues, such as access to the courts and the legal system more generally. Unfortunately, many United States citizens have been priced out of the legal market under the current system.
Ključne besede: attorney's fees, fee-shifting, fee arrangements, American rule, court access
Objavljeno v DKUM: 15.01.2021; Ogledov: 225; Prenosov: 34
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6.
Specialization of criminal justice authorities in dealing with cybercrime
Milana Pisarić, 2015, pregledni znanstveni članek

Opis: Purpose: This paper deals with specialized cybercrime units within the criminal justice system as one of the key elements of proper response to cybercrime. The author emphasizes the need for the establishment and/or improvement of such an organization with specific powers within law enforcement and prosecution authorities as well as within courts, in order to tackle problematic issues raised by computer-related crimes, especially the ones concerning investigation and prosecution of offences committed against and/or by means of computer data and systems, and carrying out computer forensics with respect to electronic evidence in general. Design/Methods/Approach: The author analyses the relevant international legal framework and various national legislation chosen as examples of good practice in order to present the justification and purpose of specialization, types of specialized law enforcement units, their organization, functions, strategic and tactical responsibilities. Findings: Investigation and prosecution of cybercrime and forensic analysis of electronic evidence require specific skills within criminal justice authorities. Therefore, it is advisable to set up or consolidate police-type and prosecution-type cybercrime units with strategic and operational responsibilities and computer forensic capabilities within cybercrime units or as separate structures. As for judiciary, dealing with computer-related crimes requires particular knowledge and skills, and where it is compatible with the legal system of the respective country, the creation of specialized courts may be considered. In addition to the existing legal mechanisms for dealing with transnational crime, the creation of an international court or tribunal that would have jurisdiction over individuals who committed the most serious cybercrimes of global concern may also be a good solution in order to prevent serious cyber attacks from going unpunished. Research Limitations / Implications: The results presented in this paper are to be seen as de lege ferenda proposals for the improvement of the existing legislation related to organization and powers of authority vested in combating cybercrime. Originality/Value: Despite the existence of a significant number of essays dealing with cybercrime, not many of them are concerned with tactical and procedural issues of investigation and prosecution of this specific kind of crimes. The results presented in this paper are de lege ferenda proposals for the improvement of the existing legislation related to organization and powers of authority vested in combating cybercrime. Accordingly, the value of this paper may be recognized in the analysis of legal solutions regarding law enforcement and prosecution response to computer-related crime, with the emphasis on specialization of authorities involved.
Ključne besede: cybercrime, investigation, prosecution, court, specialization
Objavljeno v DKUM: 17.04.2020; Ogledov: 394; Prenosov: 27
.pdf Celotno besedilo (360,30 KB)
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7.
Specialization of criminal justice in dealing with organized crime and juvenile delinquency in the Republic of Serbia
Tatjana Bugarski, 2015, pregledni znanstveni članek

Opis: Purpose: This paper deals with specialized cybercrime units within the criminal justice system as one of the key elements of proper response to cybercrime. The author emphasizes the need for the establishment and/or improvement of such an organization with specific powers within law enforcement and prosecution authorities as well as within courts, in order to tackle problematic issues raised by computer-related crimes, especially the ones concerning investigation and prosecution of offences committed against and/or by means of computer data and systems, and carrying out computer forensics with respect to electronic evidence in general. Design/Methods/Approach: The author analyses the relevant international legal framework and various national legislation chosen as examples of good practice in order to present the justification and purpose of specialization, types of specialized law enforcement units, their organization, functions, strategic and tactical responsibilities. Findings: Investigation and prosecution of cybercrime and forensic analysis of electronic evidence require specific skills within criminal justice authorities. Therefore, it is advisable to set up or consolidate police-type and prosecution-type cybercrime units with strategic and operational responsibilities and computer forensic capabilities within cybercrime units or as separate structures. As for judiciary, dealing with computer-related crimes requires particular knowledge and skills, and where it is compatible with the legal system of the respective country, the creation of specialized courts may be considered. In addition to the existing legal mechanisms for dealing with transnational crime, the creation of an international court or tribunal that would have jurisdiction over individuals who committed the most serious cybercrimes of global concern may also be a good solution in order to prevent serious cyber attacks from going unpunished. Research Limitations / Implications: The results presented in this paper are to be seen as de lege ferenda proposals for the improvement of the existing legislation related to organization and powers of authority vested in combating cybercrime. Originality/Value: Despite the existence of a significant number of essays dealing with cybercrime, not many of them are concerned with tactical and procedural issues of investigation and prosecution of this specific kind of crimes. The results presented in this paper are de lege ferenda proposals for the improvement of the existing legislation related to organization and powers of authority vested in combating cybercrime. Accordingly, the value of this paper may be recognized in the analysis of legal solutions regarding law enforcement and prosecution response to computer-related crime, with the emphasis on specialization of authorities involved.
Ključne besede: cybercrime, investigation, prosecution, court, specialization
Objavljeno v DKUM: 16.04.2020; Ogledov: 354; Prenosov: 22
.pdf Celotno besedilo (364,09 KB)
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8.
Legal analysis of public authorities of Chamber for the Development of Slovenian Private Security - de lege lata and de lege ferenda
Iztok Rakar, Bojan Tičar, 2015, pregledni znanstveni članek

Opis: Purpose: This paper examines the development of delegation of public authorities to the Chamber for the Development of Slovenian Private Security. Based on an evaluation of past and present experiences, the authors set guidelines for future legal regulation and administrative practice. Design/Methods/Approach: The research presented here is based on an analysis of legal regulation and theory of public authorities, of the case law of the Constitutional Court of the Republic of Slovenia, and of the administrative inspection reports on implementation of public authorities of former Chamber of the Republic Slovenia for Private Security. Findings: Public authorities are institutes of Slovenian constitutional and administrative law. An analysis of sector-specific laws shows that a variety of administrative tasks is delegated to subjects of public and private law (e.g., public enterprises, chambers and individuals). In practice, the delegation of public authorities poses several major problems: ex ante, justifications of delegation are very vague and not supported by analyses, while ex post evaluations of delegation are non-existent and supervision of the implementation of public authorities is insufficient. In practice, supervision is mainly the result of malpractice as identified by random checks or the media, and not the result of systematic activity. The public authorities of professional chambers present a special problem. Public authorities of the former Chamber of the Republic Slovenia for Private Security pertaining to the licensing and professional supervision of members of the chamber have been withdrawn based on findings by administrative inspections. Research Limitations / Implications: The research is limited to Slovenia, but the findings are relevant for other “young democracies” in the region and of potential interest to Western European democracies. Originality/Value: The analysis addresses key problems in delegating and implementing public authorities, evaluates the results of experiences, and offers possible solutions.
Ključne besede: public authorities, private security, chamber, case law, constitutional court, Slovenia
Objavljeno v DKUM: 16.04.2020; Ogledov: 337; Prenosov: 24
.pdf Celotno besedilo (548,90 KB)
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9.
An overview of the law of attorney fees in the United States : the American rule is not so simple after all
Thomas Allan Heller, 2018, izvirni znanstveni članek

Opis: It often is said that in the United States each party pays their own attorney’s fees, win or lose, absent a contractual provision to the contrary or some recognized ground in equity. This basic proposition, which is true as far as it goes, is based on the so-called American Rule, which provides that in the United States each side in a litigated case is responsible for paying their own attorney, regardless of the outcome of the case. On its face this proposition seems simple. On the contrary, however, the laws in the United States governing attorney’s fees are surprising quite complex. This article provides a general survey of the patchwork of laws, federal and to a lesser extent state, and the author will demonstrate that rules and laws governing attorney’s fees are often grounded in important public policy and fundamentally shape important issues, such as access to the courts and the legal system more generally. Unfortunately, many United States citizens have been priced out of the legal market under the current system.
Ključne besede: attorney’s fees, fee-shifting, fee arrangements, American Rule, court access
Objavljeno v DKUM: 03.08.2018; Ogledov: 549; Prenosov: 88
.pdf Celotno besedilo (457,99 KB)
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10.
The argument for choosing state's judicial system or a "private" outsourced resolution of disputes : a practising attorney's point of view
Jorg Sladič, 2018, izvirni znanstveni članek

Opis: Terms such as arbitration, mediation, conciliation and alternative dispute resolution (ADR) are nowadays standard terms in any classroom textbook on civil procedure. Legal scholars enumerated and assessed in depth the advantages and disadvantages of any type of outsourced dispute resolution. However, a number of legal writers still fail to enumerate the exact differences in course of events and all of the trade-offs that a party will have when deciding to resolve the dispute using an outsourced dispute resolution. Clearly the costs, the celerity and the flexibility are important issues. However, the decision is not influenced solely by legal arguments. This paper will mention some typical Slovenian issues in an assessment of the choice of dispute resolution. If parties want to continue to remain in good terms after the dispute, then an outsourced dispute resolution is highly recommended. Judicial rulings are to binary; one party wins, one loses.
Ključne besede: ADR, arbitration, mediation, outsourced mediation, court- connected mediation, choice of ADR, State as party in litigation and ADR
Objavljeno v DKUM: 02.08.2018; Ogledov: 665; Prenosov: 76
.pdf Celotno besedilo (669,18 KB)
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