Perspectives of Law and Public Administration
Volume 12, Issue 4, December 2023
Table of Contents
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Ph.D. Zuzana STOLIČNÁ; Phd. Jana BARJAKOVÁ
Abstract:Budgetary and contributory organizations represent a stable element of public administration organizations in the Slovak Republic. A similar type of organization is also known in the legal regulations of European countries, or countries around the world, most often under the term government agencies. The legal regulation of budgetary and contributory organizations is important from the point of view of their competencies regulation since on the one hand their activities impact a wide spectrum of the users of their services and on the other hand, they are financed from public sources. The aim of the study is to clarify the legal framework for the establishment and termination of these organizations and the application practice in this area under the conditions of Slovak legislation within the competencies of the Ministry of Education, Science, Research, and Sport of the Slovak Republic. Within the research, methods of analysis, synthesis, comparison, and other scientific methods were used. The starting data to analyze are valid regulations in the Slovak Republic, internal legislation of the Ministry of Education, scientific studies, and foreign legislation to regulate the issue abroad. The study provides a basic regulation of the establishment and termination of budgetary and contributory organizations within legal conditions in the Slovak Republic and an overview of the implemented changes in the structure of departmental organizations within application practice in the education sector.
Keywords: government agency, budgetary organization, contributory organization, establishment, termination.
JEL Classification:K20, K23Establishment and Termination of Departmental Organization – Application Practice in Slovakia under the Conditions of the Ministry of Education
Page 485 - Associate professor Alexandru PRISAC
General Competence - An Interbranches Legal Institution That Delimits the Powers of Jurisdictional Bodies in Continental LawAbstract:In this article, the general competence as an interbranch legal institution is analyzed as a whole, starting from the specific norms of the continental law. The general competence is defined, being a complex notion because it is not regulated in the national legislation in a legislative act specific to this legal institution. It is contained in several normative acts. Thus, the most important features of general jurisdiction are highlighted, starting from the opinion of several authors who have analyzed this legal institution. It is presented that any legal norm implicitly also contains a provision regarding general competence, because in case of non-compliance with it, the sanction is to be applied by a certain jurisdictional body. Initially, its evolution was exposed in Romanian private law, then in French and German law. Clarity was made in the delimitation of the types of general jurisdiction that include certain criteria for delimiting the powers of jurisdictional bodies in the resolution of legal cases. In addition to the exclusive, alternative, conditional general competence, it is demonstrated that there is also the dynamic general competence that delimits the competence of the jurisdictional bodies as a whole with all the regulations of this legal institution.
Keywords: competence, institution, interbranch, jurisdiction, continental.
JEL Classification: K41
Page 497 - Professor Renata TRENESKA DESKOSKA
Pardon Power of the President of North Macedonia – Uses and MisusesAbstract:The President of the Republic of Macedonia, Gjorge Ivanov in 2016 pardoned 56 individuals. Some of them were pardoned more than once (the former Minister for Transport and Communications was pardoned 16 times, the former Minister for Interior was pardoned 13 times etc.). Most of the pardoned persons were politicians or their close collaborators. The President’s explanations for the pardons were that he sought to help the country overcome political crisis, that the country had been facing for almost two years. This event raised many questions about the constitutional aspects of the pardons in North Macedonia, which will be analyzed in this paper. The analysis show that these pardons were unlawful and the presidential power was misused. Because similar questions about misuse of presidential pardons were debated in USA under Trump rule, this paper will also make comparisons of the (mis)use of presidential power to grant pardons in North Macedonia and in the USA. At the end the paper will discuss the possible legal solutions for overcoming the misuse of this power of the President of North Macedonia.
Keywords: pardons, Constitutional Court, President of the Republic, North Macedonia.
JEL Classification: K19, K42
Page 510 - PhD. student Liviu-Valentin MIHALACHE
Two Decades of Existence of the Freedom of Information Act in Romania: Appearance and SpecificityAbstract:In 2001 the Freedom of Information Act (Law no. 544/2001) was adopted by the Romanian Parliament, in a sign of unprecedented openness of the beaurocratic apparatus towards its citizenry. This article answers two main questions: firstly, how did Law no. 544/2001 appear in Romania, what was the general social and political context, and what made civil society, the government and opposition at that time to cooperate for the adoption of the law? And secondly, what is the specificity of this law, which are the main traits that distinguish it as an anti-corruption tool, two decades after it entered into force?
Keywords: freedom of information, Law no. 544/2001, public interest, transparency, Romania.
JEL Classification: H83, K23, K40
Page 522 - Professor M. Elvira MÉNDEZ-PINEDO
Access to Justice in European Law: Moving from “Access to Courts” Towards a Substantive, Horizontal and Comprehensive ApproachAbstract:The entry into force of the Lisbon Treaty in December 2009 was supposed to have far-reaching implications for the development of a European policy on justice and access to justice as it “constitutionalized” for the first time this important topic. However, at the time of writing, European Union (EU) law has been unable to construct and provide a proper system of access to justice for European citizens across all European Member States. In particular, the study of the case-law of the Court of Justice of the European Union in Luxembourg shows that the European model of access to justice based on litigation, access to courts and on the defense of individual rights is inherently limited. The author advocates a change of approach, aiming for a better definition of a substantive notion of access to justice in the light of a broad system of European social justice and equality. This new approach could be based on the classic theory and methodology of “access-to-justice” developed in the early 80s by Professor Mauro Cappelletti. His encyclopaedia on the topic offered a horizontal comprehensive strategy to construct a justice system and procedural laws based on the needs of the ordinary citizens.
Keywords: access to justice, EU law, European Convention of Human Rights, critique and methodology.
JEL Classification: K33, K41
Page 535 - Assistant professor Cătălin LUNGĂNAȘU
Principle of Availability vs. Active Role of the Court. Brief Practical ConsiderationsAbstract:The principle of availability outlines a specificity of civil proceedings that may seem to contradict the active role that the court must play in order to resolve the case fairly. The simultaneous application of these two defining rules for civil procedure in relation to the rights of defence and to a fair trial generates certain practical problems that we point out in this study, given that the court is bound to respect the limits of the judgment vested in it, but at the same time must resolve the dispute according to the applicable rules of law in order to deliver a legal and well-founded decision.
Keywords: the principle of availability, the active role of the court, the right of defence, elements of civil action.
JEL Classification: K33, K38, K40
Page 550 - Professor Howard CHITIMIRA; Research assistant Keamogetse MOTLOGELOA; Doctor Phemelo MAGAU
A Legal Analysis of the Regulation of Information and Communications Technologies to Promote Digital Inclusion for the Poor and Low-Income Earners in South AfricaAbstract:Digital inclusion involves the provision of equitable access to Information and Communications Technologies (ICT) to all persons for them to participate in socio-economic activities such as accessing financial services and products, education and employment. This article provides an overview of the regulation of digital inclusion in the South African ICT sector by examining the Electronic Communications Act 36 of 2005, the Independent Communication Authority of South Africa Act 13 of 2000 and the Competition Act 89 of 1998. The article also investigates the legal and related challenges that affect the promotion of digital inclusion for the poor and low-income earners in South Africa. Challenges affecting the promotion of digital inclusion in South Africa such as racial segregation, digital illiteracy, language barriers, disability, geographical limitation, poverty, low-income and affordability are discussed. This is done to recommend possible measures that could be adopted by policymakers and the relevant regulatory bodies to enhance the promotion of digital inclusion for the poor and low-income earners in South Africa.
Keywords: digital inclusion, digital divide, technology, low-income earners, Covid-19.
JEL Classification:K23, K24
Page 563 - Lecturer Anamaria GROZA
The European Health Insurance Card, between Benefits and Limitations “Another Piece of Europe in Your Pocket”Abstract:The European Health Insurance Card was adopted after long and slow procedures, in order to consolidate the internal market. Nowadays, it has become an important piece of the European health policy and of the European identity. The European citizens can have medical benefits in another Member State that the State where they have a medical insurance, benefits that are necessary and in the absence of which, these citizens should end their stay and return to the State of insurance. The medical assistance can be necessary even because of pre-existing or chronic diseases, pregnancy and birth. The European Health Insurance Card cannot be used in case of planned medical assistance. The medical assistance thus received can be free of charge, partially free of charge or not, according to the legislation of each Member State. In contrast to its jurisprudence in the field of planned medical treatments, the European Court of Justice has decided that a partial reimbursement in this case is not contrary to free movement of services.
Keywords:European Health Insurance Card, planned medical treatments, unforeseen medical treatments, necessary medical assistance, free movement of services.
JEL Classification: K32, K33
Pages 575 - Lecturer Nqobizwe Mvelo NGEMA
Regulation of Abortion and Distribution of Contraceptives in the Context of Indonesia’s Human Rights ObligationsAbstract:The information about the usage of contraceptives and how to abort is something that is highly restricted to legally married couples. Article 408 restrict the sharing of information about the use of contraceptive and abortion methods because of the general belief that if such information is disseminated it would contribute to the moral decay of the society. It comes as no surprise that article 409 provides for a jail term of up to six months to anyone who violates the latter mentioned article. The parliament of Indonesia promulgated the new Penal Code in December 2022. However, the new Code is also riddled with many downsides. Article 411 of the Code criminalizes any sexual intercourse outside the confines of a lawful marriage (zina) and anyone who practice sexual intercourse while not yet legally married is guilty of a criminal offence. This shows beyond any doubt that the normative system of Indonesia is dominated by Islamic principles because Islamic law forbids any form of extra-marital sexual intercourse and permits child marriages to protect the family honor and avoid the shame of getting pregnant outside marriage. Living together as husband and wife while not yet married to each other is forbidden in terms of article 412 of the new Criminal Code. Any woman who intentionally abort her child can be sentenced up to four years behind the bars except where such woman is a victim of rape or sexual assault. According to article 463 and 464 of the new Criminal Code, anyone who assists a pregnant woman with an abortion can be sentenced for up to five years in prison. The disadvantage of the latter mentioned articles is that they will reduce free exchange of important information about health by parents, teachers, the media and amongst the community members. This is contrary to the rights of girls and women that are protected by international law because under international law, girls and women have a right to receive sex education and to protect their sexual and reproductive health rights and autonomy to make their own individual choices about when to have children. As a result of this, numerous rights of girls and women can be affected in the process such as the right to education, can contribute to the prevalence of child marriages and this may also endanger lives and health of girls and women.
Keywords: abortion, contraceptive distribution, Human rights obligations for Indonesia.
JEL Classification: K36, K38
Page 582 - Master student Robert-Marian TRANDAFIR
Criminological TheoriesAbstract:Criminology is an interdisciplinary discipline that deals with the study of crime, delinquency and antisocial behavior. This involves analyzing and understanding the causes, consequences and prevention of criminal activities. Criminology combines aspects of psychology, sociology, law and statistics to provide a holistic perspective on the criminal phenomenon. The evolution of criminology has been influenced over time by various theories and perspectives on crime. From classical approaches such as rational choice theory and anomie theory to contemporary approaches such as labeling theory and social control theory, criminology has continuously developed to bring new understandings and solutions to crime. The study of crime and criminology is of significant importance in society. They help identify risk factors and develop prevention and intervention strategies in the case of criminal activities. Through research and analysis, patterns and trends in criminal behavior can be identified, which can help improve criminal justice systems and develop effective crime-fighting policies. Research methods used in criminology vary and include quantitative and qualitative techniques. These may involve analysis of statistical data, interviews with offenders or victims, direct observations or analysis of relevant documents. By using such methods, criminologists can obtain essential information for understanding the criminal phenomenon and developing appropriate strategies. The criminologist has an important role in society. He is responsible for analyzing and interpreting crime and delinquency data, developing and evaluating crime prevention policies and programs, and contributing to developments in the field of criminology. The criminologist can also provide expertise in criminal investigation and criminal justice systems, having a direct impact on how society responds to the criminal phenomenon. In conclusion, criminology is a complex and interdisciplinary discipline that studies the phenomenon of crime and criminality. Through research, analysis and the application of knowledge in the field, criminology contributes to the understanding, prevention and management of crime, playing a crucial role in building a safer and more just society.
Keywords: criminology, crime, delinquency, legal sociology.
JEL Classification: K14
Page 590 - L.L.M. candidate Molatelo SEBOLA; Professor Kola O. ODEKU
An Analysis of Post-apartheid Land Reform Interventions Fostering Restoration of Dignity and Equality in South AfricaAbstract:This article discusses constitutional, legislative and policy frameworks strategically introduced post-apartheid era to foster land expropriation reforms that would restore dignity, equity, equality and justice to the forcefully dispossessed Black South Africans from their land during the pre-colonial and apartheid regimes. More importantly, even though the colonial and apartheid settlers metamorphosised into rulers expropriated land without compensation, the Constitution of the Republic of South Africa 1996 has brough about various interventions that seek to ensure that the land that was forcefully taken should be returned to the right owners. This proposition has continued to generate fierce debates in the country. While some pundits have asserted that the Black majority now in charge of governance, should use post-apartheid laws to expropriate land without compensation, there have been stiff resistant from the white minority who are both the owners of vast land and at the same time exercising right of possession and occupation respectively. It is against these competing interests that this paper postulates that in order to restore the dignity of the dispossessed and forcefully removed Black South Africans from their rightful land, there is need to look at the constitutional imperatives as well as equity and justice based on the post-apartheid frameworks that are available to ensure that the past apartheid land dispossession and injustices are redressed, and the wrongs committed are remedied.
Keywords: land justice, inclusivity, equality, post-apartheid, constitutional imperatives.
JEL Classification: K30, K33, K38
Page 597 - Associate professor Ana VIDAT
A Measure to Make Work More Flexible: Reducing the Working Week to 4 DaysAbstract:The need to achieve a work-life balance and the option for employers to motivate and increase the productivity of employees are the justification for necessary legislative amendments in the future. EU Directive 2019/1158 on work-life balance defines in art. 3 para. 1 (f) the concept of "flexible working arrangements" which refers to "the possibility for workers to adapt their working hours – including through the use of telework, flexible working arrangements or reduced working time schemes". EU Directive 2019/1152 on the transparency and predictability of working conditions in the European Union specifies – in art. 1 (1) – that it aims to improve working conditions by promoting more transparent and predictable forms of work, while ensuring the adaptability of the labour market.
Keywords: individual employment contract; reduction of the working week; flexible working; European Union acts; comparative law.
JEL Classification: K31
Page 618 - Lecturer Thabiso L. MALATJI
Synopsis of National Security Crisis in Democratic Republic of Congo - A Push Factor to Forced MigrationAbstract:The study was conducted in Limpopo Province, Musina, which is located in the northern part of South Africa. This qualitative study aimed at finding out how threats to national security encourage forced migration. The researcher conducted interviews with refugees from Democratic Republic of Congo. Illegal immigrants from the Democratic Republic of Congo participated in this qualitative study whereby the researcher conducted a focus group discussion with immigrants. There was a gender mix in this group discussion, however, the males dominated because there is a large number of males immigrants as compared to females. The issue of security is a serious concern to the people of DRC. The majority of the illegal immigrants from DRC who are found in Musina left their home country because of a lack of security and protection from their government. The immigrants are of the view and opinion that the leadership of the country does not care about their safety. Moreover, the immigrants were forced to join the rebels in their country at a very young age, hence they decided to leave. National security threat is one of the push factors that make civilians want to flee their own country to neighbouring countries. The immigrants from DRC do not wish to go back home, they found a new home in South Africa. However, there are some challenges that they experience and they found them to be better because they are not life-threatening challenges. This was expected because they are in a foreign land. Findings from this study reveal that the lack of commitment by the government to ensure that there is safety in DRC is the contributing factor to push migration.
Keywords: national security, threats, illegal immigrants, human mobility, Democratic Republic of Congo.
JEL Classification: K33, K38
Page 623 - Professor Carmen Silvia PARASCHIV
The Institution of 'Waiver of Criminal Prosecution' - Some ControversiesAbstract:The "waiver of criminal prosecution" institution was introduced into Romanian criminal procedural legislation by Law no. 135/2010 on the Code of Criminal Procedure. It appears as an exception to the principle of the legality of the criminal process - regulated by the Romanian legislator in favor of the principle of expediency. The legislator opted for the introduction of this institution in the legislation, considering the costs involved in the activity of criminal investigation and trial in the case of certain crimes. The appearance of this institution "justifies", to some extent, the non-taking over by the legislator in the new provisions of the content provided by art. 181 of the former Criminal Code (1969). The provisions included in the content of art. 181 of the previous Criminal Code (1969) allowed the judicial bodies to find that some acts provided for by the criminal law did not present the social danger of a crime, which allowed the application to the perpetrator of an administrative measure provided for in Article 91 of the previous Criminal Code (1969).
Keywords: criminal prosecution, solution, prosecutor, waiver of criminal prosecution, principle of expediency, reduction of costs, reduced degree of social danger.
JEL Classification: K14, K42
Page 634 - Lecturer Adriana-Iuliana STANCU; Dr. Tal PAVEL
Unveiling Israel’s Cyber Legal Landscape: A Comprehensive Analysis of Cybersecurity Regulations and PoliciesAbstract:The world's countries formulate laws, regulations and legal frameworks to define broad aspects of cyberspace within their domain, including institutions responsible for the local cyberspace, their areas of activity and responsibility, administrative subordination and even those who stand at their heads—including the definition of criminal activities in cyberspace, crime and terrorism, and topics such as the state's cyber borders and sovereignty, the citizens' online information security as well as their right to online privacy and the ways to ensure it The research examines Israel's governmental activity to regulate cyberspace, the scope of the existing regulations and laws, their development over the years, and an attempt to fill in the gaps in the current regulation activities of cyberspace in Israel. The findings reveal that despite Israel being a cyber power based on various international indicators and media references over the years, and despite the activity of the Israel government starting in 1997 to regulate the issue of cyberspace, Israel currently lacks a governmentally approved cyber law defining Israeli cyberspace, institutions, activities and responsibilities. Further research may compare Israel's cyber regulations with other similar cyber nations and portray differences and lessons to be learned by Israel to regulate its cyberspace, in addition to Israel's involvement in international cyber conventions and regulations.
Keywords: cyber, law, policy, Israel, cybersecurity.
JEL Classification: K23, K24
Page 643 - PhD. candidate Shkodran REXHAJ; PhD. candidate Armend KRASNIQI
Public Diplomacy “Winning Hearts and Minds”Abstract:Public diplomacy is a type of diplomacy that focuses on using public communication to influence public opinion and achieve political goals. This type of diplomacy can be seen as a replacement for traditional diplomacy in some cases, but it is not a complet e replacement. In some cases, public diplomacy can replace some aspects of traditional diplomacy, such as the use of private talks between governments. Public diplomacy can be used to stimulate public debate about an international issue, raise public aware ness, and create a climate conducive to a possible solution. In this case, public diplomacy can partially replace private talks between governments, creating a new space for public dialogue. Traditional diplomacy involves secret talks between governments, lobbying and various negotiations at different levels. These are aspects that cannot be made public and are important to reach agreement between governments. For this reason, public diplomacy and traditional diplomacy are not alternatives to each other, bu t must be used together to achieve foreign policy goals. Public diplomacy can help create a positive atmosphere in public opinion, while traditional diplomacy can help reach agreements between governments.
Keywords: : diplomacy, digital, public, traditional, government.
JEL Classification: K33
Page 651 - PhD. student Marius Vasile BÂRDAN
Trials of Christian Martyrs. Case Study: de Perpetuae et Felicitatis Martyrio➤Abstract:A person who dies for his or her religious faith is called a martyr or a martyr, but the term martyr also applies to those who give their lives for another cause considered noble, such as those who die for their country in time of war. Martyrdom is the suffering, torment, torture or death endured by someone for their ideas or beliefs. The term martyr is also used by extension in other forms, martyr of the fatherland, martyr of labour, to honour particular acts of heroism. The word 'martyr' is originally Greek and designates someone who has witnessed to Christ by his own death. At first, the term martyr was used with reference to the apostles still living, then it was extended to all those who gave a demonstration of faith and finally it was used of those who died as a result of persecution.
Keywords: martyr, persecution, edict, ecclesiastical law.
JEL Classification:K10, K41
Page 663 - Lecturer Ovidiu-Horia MAICAN
French Judicial System➤Abstract:The principle of separation of powers was not very popular among the framers of the French Constitution. As a result, in the Constitution of the Fifth Republic, to the Judiciary was reserved a subordinate position to the executive. The composition of the Judiciary has been left in the hands of the Government. Judges in France work under the Ministry of Justice. After the setting - up of the Higher Council of Magistracy and a special statute for the membership of the judicial bodies, the independence of the Judiciary has been somewhat enforced.
Keywords: France, constitution, judiciary, Constitutional Council.
JEL Classification:K33
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