Superior responsibility has been a widely recognised form of responsibility for omission in both treaty and customary international law. Superiors are held responsible for the acts of their subordinates when they fail in fulfilling their duties to prevent or punish crimes of subordinates. Duties to prevent and punish arise only after the superior knows about the subordinate’s crimes or has a reason to know about it. ‘Has a reason to know’ is a form of constructive knowledge and could be defined (...) as absence of actual knowledge about subordinates’ crimes where that knowledge should exist because of information available to the superior from the content of which it could be easily concluded that there is a possibility that subordinates intend to commit, are committing or have already committed crimes and the lack of that knowledge is a cause of willful disregard of his duties or at least disregard based on gross negligence. (shrink)

Environmental protection in times of armed conflicts, irrespective internal or international, is rarely considered as a prioritized concern. Due to the concept of state sovereignty, this is especially problematic when examining interaction of warfare and environmental protection in non-international hostilities. Not only it is challenging to find any exhaustive and explicit legal provisions regulating the matter, but this issue has also been forgotten by international legal scholars. Therefore, in this article the author reviews written and customary norms laid down in (...) documents of various branches of international law, such as international humanitarian law, human rights law, environmental law and international criminal law, which directly or by way of interpretation may favour environmental protection in times of internal armed conflict. This is to be done in order to gather information about the sufficiency of legal framework on preservation of the environment in times of noninternational armed conflicts. After doing this research, a few possible means to improve current legal framework are suggested. The author suggests to impose civil liability, enact new comprehensive document, initiate changes in international criminal law and other. (shrink)

The present article discusses the broadening of the concept of genocide in Lithuanian national criminal law with regard to the principle of nullum crimen sine lege. The broadened definition, which includes two groups, social and political raises serious problems when the national provisions on genocide are applied retroactively. However, in the case of Lithuania, such a broadening of the definition may be interpreted not as an introduction of distinct independent groups, but of groups that closely overlap with the groups defined (...) by the UN Genocide convention of 1948. The article suggests that potential problems with the principle of nullum crimen sine lege may be avoided by qualifying crimes against the Soviet regime as crimes against humanity. (shrink)

The present article is a subjective commentary on the case Kononov v. Latvia dealt by the European Court of Human Rights, in particular drawing attention to the Courts intention not to regard context of the case as important for the substantial issues. Author considers this approach in a bigger picture of clash of historical and legal paradigms of the heritage of the Second World War in different countries (namely, Western Europe, Russia, the Baltic States). Author also discusses what impact Kononov (...) case might have on Soviet crimes prosecution in the future. (shrink)

The present article analyses the so-called ‘crime of denial’ recently established in Article 1702 of the Lithuanian Criminal Code. It describes how this crime was introduced in the Lithuanian Law, and the reasons for its present form and challenges. The crime has been applied in two instances (Stankeras case and Paleckis case). The author discusses these two instances of application, critically reviews the arguments of the Prosecutor’s Office and of the court of first instance and shows that at least in (...) the first cases of application of this crime, its objectives and particularities are misunderstood. (shrink)

In this article, we explore the concept of African communitarianism and reflect on its potential value for ecojustice education as a localised response to the wider ecological crises that i...

Resumo: O presente artigo sistematiza informações sobre a implementação do Programa Jovem de Futuro, PJF, na rede estadual de ensino no Pará, considerando suas implicações para o Direito Humano à Educação, DHE, de acordo com o proposto no Pacto Internacional sobre os Direitos Econômicos, Sociais e Culturais- PIDESC, que demarca quatro indicadores da ação estatal para a asseguramento do direito à Educação. São eles: Disponibilidade, Acessibilidade, Aceitabilidade, Adaptabilidade e, ainda, Controle Social incorporado na matriz de pesquisa. Em diálogo com tais (...) indicadores, coletamos informações em páginas oficiais da Secretaria Estadual de Educação do Pará e do ator privado responsável pela implementação do Programa, o Instituto Unibanco. Procedemos análise de documentos oficiais localizados nas referidas páginas, além de consultar a produção nacional sobre o PJF, com ênfase à sua consolidação no estado do Pará, no período de 2011-2018. A pesquisa de tipo qualitativa, apoiada em revisão bibliográfica, análise documental e coleta de dados de fontes primárias e secundárias, possibilitou a constatação de forte influência do setor privado na educação pública paraense, que direcionou a adoção de modelos de gestão empresarial para a obtenção de melhores resultados educacionais, com controle e monitoramento em todas as etapas do PJF, com sérias consequências ao DHE. Palavras-chave: Direito Humano à Educação; Jovem de Futuro; Instituto Unibanco; Privatização. The Jovem de Futuro program in Pará and the implications for the Human Right to Education – DHE Abstract: The article systematizes information about the implementation of the The Youth with a Future Program - PJF in the state education in Pará, considering its implications for the Human Right to Education - DHE, in accordance with what is proposed in the International Covenant on Economic, Social and Cultural Rights - ICESCR, which outlines four indicators of state action to ensure the right to education. They are: Availability, Accessibility, Acceptability, Adaptability and accountability incorporated in the research matrix. Related with these indicators, we collected information on official pages of the Pará State Department of Education and on the private actor responsible for implementing the Program, Instituto Unibanco. We proceeded to the analysis of official documents located on the referred pages, in addition to consulting the national academic production on the PJF, with emphasis on its consolidation in the state of Pará, in the period 2011-2018. Qualitative research, supported by a bibliographic review, document analysis and data collection from primary and secondary sources, made it possible to verify the strong influence of the private sector on public education in Pará, which led to the adoption of business management models to obtain better results. educational institutions, with control and monitoring at all stages of the PJF, with serious consequences for the DHE. Key-words: Human Right to Education; Future Youth; Unibanco Institute; Privatization. Programa Joven del Futuro en Pará y sus implicaciones al Derecho Humano a la Educación – DHE Resumen: La presente investigación sistematiza informaciones sobre la implementación del Programa Joven del Futuro – PJF en la red estatal de enseñanza de Pará, considerando sus implicaciones al Derecho Humano a la Educación – DHE, de acuerdo con lo propuesto en el Pacto Internacional sobre los Derechos Económicos, Sociales y Culturales – PIDESC, que demarca cuatro indicadores de acción estatal para el aseguramiento del derecho a la Educación. Son ellos: Disponibilidad, Accesibilidad, Aceptabilidad, Adaptabilidad y, aún, Control Social incorporado en la matriz de investigación. En diálogo con tales indicadores, reunimos informaciones en páginas web oficiales de la Secretaria Estadual de Educação do Pará y del actor privado responsable por la implementación del Programa, el Instituto Unibanco. Procedemos el análisis de documentos oficiales localizados en las referidas páginas, así como consultamos la producción nacional sobre el PJF, con énfasis a las consolidaciones en Pará, en el período de 2011 hasta 2018. La investigación de tipo cualitativa, apoyada en revisiones bibliográficas, análisis documentales y recopilación de datos de fuentes primarias y secundarias, posibilitó la constatación de fuerte influencia del sector privado en la educación pública paraense, que direccionó la adopción de modelos de gestión empresarial para la obtención mejores resultados educacionales, con control y monitoreo en todas las etapas del PJF, con serias consecuencias al DHE. Palabras-clave: Derecho Humano a la Educación; Joven del Futuro; Instituto Unibanco; Privatización. Data de registro: 02/05/2022Data de aceite: 26/10/2022. (shrink)

In the history of Lithuania during the period between the two world wars, the criminal law sources were received from Russia (Criminal Statute of 1903) and adapted for the requirements of those States, where the conditions of life were notably different from those in Lithuania. The Criminal Statute of 1903 was the main criminal law source in Lithuania until 1940. Prior to the second occupation—the return of the Soviets—tens of thousands of Lithuanian citizens fled to the West, including a very (...) large segment of the intelligentsia, university lecturers, professors and many lawyers. The lawyers in emigration were very socially active and founded a paper of law research—“Teisininkų žinios.” The article deals with the works and research of the emigration lawyers B. Nemickas, V. Vaitkevičius, P. Raulinaitis,V. Rastenis, D. Krivickas and others, in which they deal with the problem of Soviet criminal law. The lawyers analyse the sources of Soviet criminal law, which was the criminal law source in occupied Lithuania. (shrink)

According to the Finnish Penal Code a corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein 1) has been an accomplice in an offence or allowed the commission of the offence, or 2) if the care and diligence necessary for the prevention of the offence has not been observed in the operations of the corporation. Criminal liability of legal persons is based (...) on the intentional or negligent acts of individuals who are in a certain relationship with the corporation. The Finnish legal doctrine clearly rejects the identification theory according to which an individual is considered as acting not for a company but as a company. According to Finnish scholarly writings, the acts of an individual offender could be attributed to the legal person under certain conditions not as acts of the legal person but as acts of the individual for the company. Nonetheless, Finnish law does not abandon the fault requirement. In this respect, Finnish law differs from the traditional common law theory of vicarious liability. (shrink)

In this article the author analyses specific reservations that are being done to the international documents for the protection of human rights and whether Vienna Convention on the Law of the Treaties applies to those human rights treaties or not. Also, the author analyses if reservations, which are incompatible with object and purpose of the treaty, can be done or not and what consequences they might bring. For this reason the author describes the practice of the state members under the (...) Convention on the Elimination of All Forms of Discrimination against Women and International Covenant on Civil and Political Rights. These treaties were chosen not only because they laid down the most significant principles of the protection of human rights, but also due to the great number of reservations made to the fundamental provisions of these treaties. The importance of the topic is that in the human rights treaties the implementation of Vienna Convention on the Law of Treaties provisions on reservations brings several issues, even though on theoretical level the regulation of reservations seems unproblematic. Firstly, there is a major group of states (especially Islamic countries, which base their explanation on the incompatibility with Islamic law), which want to become parties to the treaties that protect human rights and make reservations to fundamental provisions of them at the same time. Secondly, the state parties that make objections to the reservations have to decide if the reservation is compatible with the object and purpose of the treaty or not. The regulation that is laid down in Vienna Convention on the Law of Treaties creates difficulties for the state parties and withdrawal of reservations seems to be more problematic in reality than it is in theory. In order to find the solutions for the above mentioned issues, the author analyses whether the Vienna Convention on the Law of the Treaties regime works properly within the mechanism of making reservations to the human rights treaties or not, what reservations should be kept invalid under the human rights treaties and what could be the solutions for the most effective protection from the invalid reservations that address fundamental rights of human beings in the human rights law. (shrink)

There are various notions of capital, but in this article movement of capital is being analysed from the perspective of international investment law – a country has an asset, which it cannot exploit or do so efficiently and there is a foreigner who possesses financing, technology or know-how, which allows to develop such asset. Lithuania is a net importer of capital, thus this article analyses on what might be the asset that Lithuanian government is interested in developing through foreign investment (...) and why Lithuania does not develop such asset through other means, i.e. borrowing. As China is one the biggest capital exporters and becomes one of the biggest outward investors, this article also analyses driving factors behind such increase of outward investment from China – the Going Out policy and various instruments used by China to encourage such policy. Finally, the article analyses the possible underlying reasons Chinese company CAMCE has in Kaunas free economic zone and what such interest means under international investment law. (shrink)

The article analyzes one of the fundamental rights – the right to maintenance, which proper implementation ensures normal development of the child. This right matches with the duty of parents to maintain their minor children. Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania states that parents have a duty to educate their children to be honest people and loyal citizens, supporting them until adulthood. The obligation to maintain children is established in the first 3.192 Article (...) paragraph of the Civil Code of the Republic of Lithuania, and the responsibility for avoiding to maintain a child is provided in Article 164 of the Criminal Code. The article discusses the fact that the analysis of criminal law rate is not precise enough. Article 164 of the Criminal Code does not match with the child maintenance methods specified in the CC Article 3.196 paragraph 1. Since criminal liability is only for judgment in default in civil cases, a person shall only be liable for breaking the right to maintain a child, provided in the CC 3.196 paragraph 1. This article deeply analyzes the problematic qualification aspects of the avoidance to maintain a child. Some alternative ways of child maintenance are mentioned, as can be chosen from other law instruments (bailiffs, Guarantee child support fund) and it leads to the ultima ratio principle. On the other hand, it is not required to seek alternative remedies for affected interests, and it is possible to initiate a pre-trial investigation. Therefore, this article seeks to identify specific civil and criminal law rules delimitation. Avoidance of child maintenance is an ongoing crime. The main problem in legal practice is to determine an end of this ongoing criminal conduct. The practice of the Supreme Court of Lithuania is not unanimous. In some cases, the end of this ongoing conduct is considered to be a moment when the past judgment has entered into force, in other cases – the moment of indictment. These positions are criticized by many authors and it is suggested to follow the Supreme Court’s practice, according to which the moment when a judgment of conviction for the criminal act is passed should be considered as an end of an ongoing criminal conduct. (shrink)

Cyber warfare is becoming a new reality with new battles fought everyday on virtual battlefields. For a century and a half, International Humanitarian Law has been a sentry for victims of wars guaranteeing their legal protection from the calamities of war, trying hard to respond to Clausewitz’s “chameleon of war”. Cyber conflict marks new chameleon’s colour together with the unmanned aerial vehicles, autonomic battle systems and other technologies deployed on battlefields. However, it would be greatly erroneous to claim that the (...) International Humanitarian Law may not apply to the new phenomena just because it is caused by the advanced technology. Even if the Geneva Conventions of 1949 are already sixty years old, the International Humanitarian Law in itself has at minimum customary response mechanism, granting, in a spirit of Marten’s clause, protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience (Protocol I). Notwithstanding, some more complicated fundamental issues also have to be addressed: how the use of cybernetic weapons and means may affect the classic notion of armed conflict? How it can be interpreted in the light of new technologies, i.e. can we still rely on a classic understanding of weapon’s kinetic effect as the main element, or shall we embrace effectsbased “Schmitt’s criteria”. If it so happens, will it make an act without apparent damage to a person/property equal to military hostilities, required by the armed conflict notion and justify the real-life response to it. The effective or overall control tests were used for the attribution of non-state actor’s activity to the state party of an armed conflict but these tests might not meet its purpose in the virtual battlefield of loose networks and open-source communities. If the concept of armed conflict is treated more flexibly, other changes (including issues of attribution) may follow, as well. Perhaps this is the way how the combatant institute will evolve. With classic combatant’s criteria impossible to apply on virtual battlefields, one of the options would be to elaborate concepts of “constant combat function” and “direct participation in hostilities” more precisely, as well as to reconsider state’s affiliation requirements. (shrink)

Along with the Strait of Malacca and the Singapore Straits, the Strait of Hormuz is arguably the most important bottleneck in international navigation because a large part of the global oil production needs to be shipped through this passage, which is only a few kilometers wide. In the context of the dispute about Iran’s nuclear program and new sanctions, Iran has threatened to close the Strait of Hormuz for international shipping, effectively cutting off many Western countries from important oil imports. (...) In this article, the legality of such action as well as the legality of the mere threat to close the Strait of Hormuz are investigated. In addition to the International Law of the Sea, general rules of international law and the international law of armed conflict are taken into consideration. Particular emphasis is put on the sovereignty of other states, which is infringed upon by such threats on the part of the Iranian leadership. First, the question has to be answered whether a passage through these waters would be transit passage through a Strait or normal passage through the coastal state’s territorial sea. The authors of the article conclude that the regime of transit passage applies qua lex specialis, as far as the part of the Strait of Hormuz, which is included in Iran’s territorial waters, is concerned. The next step is to ask the question whether preventing such a passage as well as threatening to prevent such a passage are permissible for Iran. In this context, the potential abuse of otherwise permitted traffic separation schemes is highlighted. Traffic separation schemes are of particular importance in narrow but highly frequented bodies of water, such as the Strait of Hormuz. In addition, the contemporary Iranian state practice has received some attention. One issue to be considered in more detail is the requirement that foreign warships receive authorization from the coastal state prior to entry into the territorial sea. This approach might be incompatible with the right to innocent passage under both the Law of the Sea Convention and customary international law, as there is no clear legal source, which provides for this requirement. Finally, the authors look at the question of the legality of the mere threat to close the Strait of Hormuz as opposed to actually closing the Strait. The sovereignty of other states may be affected to such an extent that such threats already amount to a violation of international law. In light of the historic precedents during the Iran-Iraq War, these threats should not be dismissed lightly. Iran would be well advised to refrain from such rhetoric. (shrink)

The article deals with the entrenchment of the institute of criminal liability of a legal person in the Lithuanian criminal law. Upon approval of the Criminal Code of the Republic of Lithuania (hereinafter also referred to as the CC) on 26 September 2000, the criminal liability of a legal person was provided almost in every fifth (at present—in every second) article of the Special Part of the CC. Although criminal liability has been increasingly applied to legal persons (e.g., in 2011, (...) if compared to 2005, almost three times as much punishments were imposed), however, almost 90 percent of the articles of the CC providing also for criminal liability of a legal person are “dead”. One doubt arises with regard to social legitimacy of such lawmaking and the quality thereof in the sense of juridical technique. (shrink)

The use of private military force by states has been a long-standing phenomena in the history of warfare. Armies of mercenaries, privateering and recruitment of foreign nationals into armed forces have been common during the Middle Ages and later on. However, with the invention of effective firearms and artillery, standing regular armies, conscription and other developments that resulted in the essential rise of costs of war, the role of private military entrepreneurs diminished. By the end of XIXth century the state (...) became almost the only subject that was able to wage a full-scale war. Nevertheless, already in the middle of the XXth century mercenarism has been reborn in Africa’s colonial and post-colonial wars. The end of the XXth century and the beginning of the XXI century witnesses an enormous rise of private security and military companies (PSMC) that are hired to perform different functions related to use of force not only by states, but also by other clients such as international organisations, transnational corporations, etc. A PSMC may be defined as a profit-seeking private enterprise, which is established according to the national law of the state and which is providing, on the basis of a contract, services directly or indirectly connected with the use of military force or its institutions whether in time of armed conflict or peace, notwithstanding how such company describes itself. International humanitarian law has no specific regulation of PSMC. Nevertheless, it would be erroneous to state that the activity of PSMC is not regulated, because international humanitarian law in any case, in one or another way, is applicable to the personnel of PSMC if it is engaged in armed conflict of either international or non-international character. (shrink)

Criminal liability of legal entities was legitimised in the Republic of Lithuania nine years ago, and in the ruling of the Constitutional Court of 8 June 2009, a conclusive confirmation on its accordance with the Constitution was made. It should be noted that this penal law novelty (providing the extension of the concept of criminal offence subject) caused considerable debate among Lithuanian scientists. One of the most controversial issues of this penal law novelty are the exceptions listed in Article 20(5) (...) of the Criminal Code. (shrink)

This article analyses that state responsibility in international law is contractual liability, as a state infringes its obligations to another state (states), stemming out of international law. Member State liability in damages to a private party for breach of European Union law is, contrarily, non-contractual liability to a private party. Having analysed the elements of internationally wrongful act, it is stated that the elements of internationally wrongful act can be used to determine the elements of breach of the European Union (...) law. Thus if an international court declares that a state committed an internationally wrongful act, it would be possible to maintain that the elements of breach of the European Union law are met as well. The author of this article notes that it is very important to identify a particular state institution, which has infringed the European Union or international law, as not attributing to the state the acts of the state institution under the European Union or international law, there should be no possibility to apply state liability in damages to a private party for breach of the European Union law or state responsibility in international law – the state can be liable only for acts of its institutions. This article also analyses the cases where application of both Member State’s liability in damages to a private party for breach of the European Union law and state responsibility in international could be possible. In such case a private party can suffer damages if a Member State breaches an international agreement, concluded by the European Union, imposing particular obligations on that Member State. Therefore, it is ascertained that a private party should not have to prove the second condition of liability – sufficient seriousness of the breach1 – if an international court foremost states that a Member State commited an internationally wrongful act – breached its obligation arising out of an international agreement entered into by the European Union. Such an infringement would be considered to be as sufficiently serious per se. (shrink)

This article investigates the use of natural law in biolaw from the specific perspective of an attorney practising before the European Court of Human Rights. Starting from an exploration of the question of who is a human and thereby to be protected under the European Convention on Human Rights (ECHR), particular emphasis is placed on the right to life under Art. 2(1) ECHR. It is shown that natural law can – and should – impact the interpretation of the European Convention (...) on Human Rights and that concrete consequences follow from this approach, most notably the requirement to ensure that every human being, including the unborn, is actively protected as concerns the right to life. (shrink)

Straipsnyje apžvelgiamos Lietuvoje nuo 1992 m. veikiančio nepriklausomo lotyniškojo tipo notariato nūdienos aktualijos, patirtis, iššūkiai bei perspektyvos Lietuvos teisės kontekste, taip pat atsižvelgiant į tarptautines notariato veiklos teisinio reglamentavimo tendencijas. Straipsnyje aptariamas daug diskusijų sukėlęs ir Europos Sąjungos Teisingumo Teismą pasiekęs pilietybės reikalavimas asmenims, norintiems tapti notarais, notarų atliekamų funkcijų įvairovė bei jų spektro pokyčiai skirtingose valstybėse ir laiko požiūriu, e. notaro koncepcija, notarinių paslaugų tarptautiškumo didėjimas bei naujausios Europos Sąjungos notarų veiklos teisinio reglamentavimo iniciatyvos, notariškai patvirtintų autentiškų dokumentų galiojimas.

The paper analyses the relevant issue of the relationship of international law and European Union law. Therefore, independent systems of law exist, which inevitably arise the issue of relationship and interaction of these systems. Legal literature analyses the question of the relationship of these two systems of law on the basis of various aspects. The author has chosen the following structure of the paper: first, the general problem of the relationship of international and European Union law is discussed. While describing (...) the problem, the nature of the European Union and international law, as well as the distinguishing features of these systems of law, is analysed. The paper also provides a discussion about the decisions of the Strasbourg court and the Court of Justice of the European Union, which provide the basis of solving the problem of the relationship of these systems of law. In the second part of this paper, the main theories are analysed: the monistic, dualistic and coordination theories, which can be used to answer the issue of interaction of the two systems of law – international law and European Union law. (shrink)

The article deals with the question how transnational corporations can bear direct responsibility for human rights abuses they commit by analysing the deficiencies of the current international legal background with respect to human rights and transnational corporations, and the solutions offered by national and regional legal tools. By establishing that current international law is incapable of reducing or compensating for governance gaps, the case law analysis shows that the litigation system under the Alien Tort Claims Act in the United States (...) and ATCA-like litigation possibility in the European Union present a feasible alternative to international law in the field of human rights protection when abuses are committed by transnational corporations. (shrink)

The study analyses the issues of protection of national minorities from the perspective of international law. The study consists of three parts. In the first part, the author reveals the understanding of a national minority on the basis of objective and subjective features. This part focuses on such problematic issues as national minorities and citizenship, non-dominant position of a national minority. The second part of the study concentrates on international minorities as subjects of international law. The author analyses international legal (...) subjectivity of national minorities. A question is raised whether the rights of national minorities are individual or collective rights. The third part of the study focuses on the analysis of normative basis for the protection of national minorities. The author notes that the monist system exists in the Republic of Lithuania regarding the relation of international and national law. Under this system, the international treaties ratified by the Lithuanian Parliament (Seimas) are seen as an indivisible part of the legal system of the Republic of Lithuania. Therefore, the Convention for the Protection of National Minorities is an international treaty that is directly applicable in the legal system of the Republic of Lithuania. The fourth part of the study focuses on the question whether Lithuania should become a party to the European Charter for Regional or Minority Languages. Although this issue is complex and includes the problems of political, economic, legal and other nature, the author focuses on the legal analysis of the problems related to the participation in the Charter. It is emphasised that the Charter is not the only document that ensures the linguistic rights of national minorities. Under the Law on International Treaties of the Republic of Lithuania, while considering participation in the Charter, the right of treaty initiative should be implemented, and the question of efficiency of the treaty must also be solved. (shrink)

The protection of national minorities forms a constituent part of the international protection of human rights. General human rights treaties (the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and others) create guarantees for the protection of persons belonging to national minorities on the basis of individual human rights. Although the mentioned treaties are not specifically devoted for the protection of national (...) minorities, it is important to underline that non-minorities treaties establish articles of special relevance for persons belonging to national minorities. Non-minorities treaties on the basis of non-discrimination and equality oblige the contracting states to ensure equal treatment of persons, including those belonging to national minorities. It may be noticed that non-minorities treaties provide the protection for persons belonging to national minorities indirectly through the interpretation of the ambit of general human rights. The core question is whether the protection granted on the basis of general human rights is sufficient for the effective protection of persons belonging to national minorities. The aim of the article is to analyze general and specialized international legal grounds of special significance for persons belonging to national minorities in order to determine the particularities of the protection granted for them. The conclusion is drawn that general human rights alone do not effectively protect national minorities: general human rights contribute to the protection of persons belonging to national minorities as a supplement element that inextricably interrelates with specialized rights together comprising the protection devoted to national minorities. (shrink)

The application of the state immunity doctrine with regard to the guarantee of access to court in the case-law of the European Court of Human Rights has been proved to be a complicated issue. In the ECHR’s case-law before the case Cudak v. Lithuania, the application of the state immunity doctrine had been considered as a proportionate restriction of the right of access to court even in cases of the realization of the protection of the jus cogens norm which was (...) very much criticized by the scholars of international law. Thus, the referral of the case Cudak v. Lithuania to the Grand Chamber could or should change the ECHR’s case-law in this sphere or at least develop certain criteria which would afford ground for a more effective protection to the right of access to court in cases of the application of the state immunity doctrine despite the fact that this right is not absolute. However, the case Cudak v. Lithuania has not fully satisfied these aims. Contrary, the case Cudak v. Lithuania left much obscurity, giving a strong indication that, what regards the realization of the right of access to court, the state immunity doctrine is more a material than a procedural ban, since the argumentation given by the ECHR in this case does not guarantee practical protection of this right. (shrink)

The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees embody fundamental provisions of refugee law. However, since the adoption of these documents the world has changed dramatically and the laws are not developing fast enough in order to catch up with dynamically changing contemporary situations. The application and interpretation of definition of a refugee was developed through traditional practice of Western states, which was influenced by two world wars and the (...) Cold War, when refugees from Africa or Asia were uncommon. The Qualification Directive specifically aims at ensuring that the member states apply common qualification criteria for persons who need international protection in line with the 1951 Convention Relating to the Status of Refugees. The author supports the statement that the Qualification Directive in principle aims at bringing back under the definition of refugee those, who have been left outside of its scope during the last decades as a result of the restrictive interpretation and application of the definition of refugee. (shrink)

The establishment of the Common European Asylum System by 2012 remains a key policy objective for the European Union. According to the Council of the European Union, the development of a Common Asylum Policy should be based on a full and inclusive application of the 1951 Geneva Convention Relating to the Status of Refugees and other relevant international treaties. In the European Pact on Immigration and Asylum attention is brought to the persistence of wide disparities amongst Member States in the (...) granting of protection and the form of protection granted. This is seen as one of the main problems to be addressed in building the CEAS. It is fairly obvious that existing divergences in policy have a substantial impact upon the aims of the CEAS. It can be assumed that the difference in governmental practices involving recognizing asylum seekers on refugee grounds or subsidiary protection grounds may be a substantial factor in the decision-making process on where to apply for international protection. The European Commission stressed the importance, during the second phase of the CEAS, of paying particular attention to subsidiary and other forms of protection. (shrink)

The present article analyses the issues of the legal definition of the European Union. It has been noticed a while ago that the EU has outgrown the “gown” of a typical international organisation and that it has acquired some features specific to a State-like entity. It is no coincidence that some authors accentuate that the EU is a specific, unconventional international organisation, some – that it is an entity, very similar to a State (an incomplete federation, a post-modern State), others, (...) not being satisfied with the traditional distinction between an international organisation and a State, are trying to develop the third category, calling the EU sui generis organisation or supranational organisation. The arguments concerning the EU model of integration continue even after the Treaty of Lisbon entered into force. Not being able to fit this legal phenomenon into the usual typological scheme we need to consider the development of a new theory enabling to define the new phenomenon. The definition of this kind of category meets several obstacles: it is a unique legal phenomenon, it is constantly changing and, furthermore, the hybrid nature of the Union induces to qualify the EU following either the criteria of international or of national constitutional law while elaborating the abovementioned synthetic category. (shrink)

In societies of high legal culture, criminal law is regarded as a protective and repressive measure of the state, as an imperative of crime and inevitable punishment (as a strict rule). Therefore, the article attempts to show the fact that the entirety of the provisions and norms of criminal law, consolidated in a modern democratic state under the rule of law (or, at least, a state that is attempting to become such a state), allows for the assertion that the purpose (...) of criminal law is coordination or, at least, the balance of the interests of conflicting subjects—the victim and the culprit, the culprit and the state. Thus, by means of criminal law, one can try to attain legal concord in seemingly irreconcilable situations. The reality of such striving is confirmed by court practice and statistics in criminal justice. The article analyses the origin of the reconciliation function, essentially a new aspect of criminal law. A position is formed that the fundamentals of such a function of criminal law are “laid” by the provisions of the Preamble to the Constitution of the Republic of Lithuania that the striving of the Nation is an open, just and harmonious civil society and a state under the rule of law. For the implementation of these provisions, one makes use of the possibilities of penal law-making and respectively corrects the penal policy. (shrink)