Law, Identity and Values

Symbols and Nation-State

Dalibor Čepulo — 2023-06-28

This study identifies and analyzes the medieval roots of the modern Croatian symbols of power, their modeling and regulation in the 19th century and re-shaping in the dynamic context of the 20th century up to the 1990 Constitution of the Republic of Croatia, and the respective regulation currently in force. This study shows how medieval symbols of the land were transferred by selection and reinterpretation into symbols of the nation and nation-state.

Children’s Privacy Rights, Social Networking, and the Media

Marta Dragičević Prtenjača — 2023-06-28

Living in modern times has various advantages, but the protection of privacy is not one of them. Today, we are surrounded by technologies that make our lives easier in everyday task management and entertainment; however, they also increase the risk of privacy violation, by collecting and potentially sharing our personal data. Parents and family very often post photos, videos, and stories of their children online. This is called ‘sharenting’. By doing so, especially in the absence of consent from the children, they violate children’s privacy. It does not necessarily mean they will be legally responsible for such behavior, though Indeed, their—right to—privacy is protected from violation by other people, media and press. However, if parents violate the privacy of their—underage—children, as with ‘sharenting’, in Croatia, the children do not have the right to protect themselves, unless it constitutes a criminal offense. Whereas they do have the right to privacy and its protection, it is not from their parents. This problem of media violation of privacy rights is juxtaposed with the freedom of expression. Therefore, this study aims to reveal the legislative and practical implications of this issue in everyday life, addressing: 1. the violation of children’s privacy rights by media and press; and 2. the violation of children’s privacy rights by their parents or family through ‘sharenting’ on social networking sites.

Non-Territorial Autonomy and the Legal Protection of the Symbols of Religious Organizations and National Minorities in Serbia

Dalibor Đukić — 2023-06-28

This paper scrutinizes the history of legal rules that regulate the appearance and use of state symbols as well as the evolution of the legal protection of symbols of national minorities and religious organizations. Furthermore, it analyses the history of nonterritorial cultural and religious autonomy arrangements in Serbia. It investigated to what extent the institutional arrangements of non-territorial autonomy contributed to the legal protection of the mentioned symbols. The first hypothesis is that certain rudimentary forms of non-territorial autonomy existed in Serbia during the 19th and the first half of the 20th century. However, the focus of legislators in this period was on the regulation and protection of state symbols. In the second half of the 20th century, the preconditions for the development of the protection of national minorities were created, while the scope of the rights of religious organizations was significantly reduced. It was only at the beginning of the 21st century that the collective right to non-territorial autonomy was constituted. At the same time, constitutional and legal provisions protected the right of national minorities to choose and use symbols, which leads to the conclusion that the existing institutional arrangement of non-territorial autonomy contributed to better legal protection of the symbols of national minorities. On the other hand, there is room for additional improvement in the legal protection and regulation of the use of the symbols of religious organizations.

Symbols of National Minorities in the Czech Republic, Their Use, and Legal Protection

Kateřina Frumarová — 2023-06-28

The article focuses on the issue of symbols of national minorities in the Czech Republic. The issue of symbols of national minorities, their use and legal protection is not given an attention in the Czech Republic—neither in literature nor incaselaw. Czech legislation is also silent in relation to this issue. Even so, we cannot give up on solving that issue. Therefore the article tries to include the right to use the symbols of national minorities under some of the explicitly enshrined rights of members of national minorities and subsequently derive from the general legislation the basic principles and rules for the use of these symbols by members of minorities in practice. In the next part of the article, the author tries to point out the means of protecting the symbols of national minorities and their use—both from the point of view of constitutional, administrative and criminal law. However, even here, the legal regulation is very unsystematic and very fragmented. Based on the above analysis, problematic aspects of the current legislation and practice are pointed out in the conclusion, and proposals and recommendations de lege ferenda are formulated.

Change of Sex by the Adoptive Parent and Its Impact on the Civil Status of the Adopted Child in View of the Fundamental Principles of the Polish Law

Janusz Gajda — 2023-06-28

This paper outlines issues connected with gender reassignment in the context of child adoption by a transgender person. In particular, it focuses on the questions of the civil status (and its registration) of the child adopted by such a person. What is striking in Polish law is the lack of a law that comprehensively regulates this issue. This situation is unfavourable as it results in the emergence of various theoretical doubts and inconsistent practice by the judiciary. This applies especially to the basic principle of Polish law, according to which only a woman can be the mother, while only a man can be the father. The said principle applies to both biological and adoptive parents. Therefore, the paper proposes that the Polish legislature pass a law on gender reassignment to normalise, as fully as possible, these issues. It should include provisions concerning, among other things, the permissibility of gender reassignment of a married person and adoption by such a person, as well as the possibility of adoption of a child by a single person who has changed sex. The law should also regulate issues relating to the gender change of the adopter and its impact on the civil status of the adopted child.

On The Admissibility of The Legal Termination of Pregnancy

Barbara Janusz-Pohl — 2023-06-28

This paper examines the phenomenon of abortion through a legal perspective, while simultaneously adhering to philosophical approaches. The analysis is framed within the context of the inception of human life and the correlation between the protection of concurring fundamental rights, namely the rights to life and personal autonomy (freedom). The evolutionary approach highlighted in this study confirms the hypothesis that the issue of abortion in the Polish legal system has taken a different path when compared to other European countries. This is a peculiar route, as the trends have remained closely linked to political change. The distinctiveness lies in the fact that while in other European countries, the 1990s were associated with pro-choice trends, the opposite, namely the pro-life trend, prevailed in Poland. Thus, starting with the interwar period, with the exception of a brief liberalizing episode in 1996, the Polish legal treatment of abortion can be considered conservative-liberal (abortion compromise). It followed an indication model, covering legal, medical and eugenic considerations. In this paper, the key point concerns a judgment of the Polish Constitutional Court, dated 22 October 2020, which shifted the system to a fully conservative track. In the authors’ opinion, at this point, another evolutionary milestone is about to take place. Whereas the path of conservative change remains unfinished, social resistance to this trend is substantial. Another clash between pro-life and pro-abortion options in the field of further potential changes concerning abortion law is expected.

Ambiguity Affirmed: Commentary on the Judgement of the European Court of Human Rights in the Case of Valdís Fjölnisdóttir and Others v. Iceland of 18 May 2021

Michał Kowalski — 2023-06-28

The text comments on the European Court of Human Rights judgement of 18 May 2021 in the case of Valdís Fjölnisdóttir and others v. Iceland. The case is another judgement of the ECtHR dealing with the phenomenon of surrogate motherhood. Indeed, the legal consequences of surrogate motherhood vary and result in challenges both in national and international legal contexts. The judgement commented on is of high importance as it dealt with links between surrogate motherhood and adoption, as well as illustrated modern challenges for civil status registration. The text provides for an in-depth analysis of the judgement concerned and identifies some ambiguity and lack of consistence in the Court’s approach to surrogate motherhood. In the course of its analysis the Valdís Fjölnisdóttir and others case is assessed as a lost chance in this respect.

History by and for a National Constitution:

Péter Pál Kruzslicz — 2023-06-28

The Fundamental Law of Hungary can serve as a very particular, even though not exceptional, especially in Central European region, example for studying the relationship between history and constitution. With two recent events, this study highlights the timely interest for that matter in Hungarian constitutional law. Also, from the beginning, it renders that history and constitutionalism are closely linked in many aspects, already by the definition of constitutional law. In order to be able to analyse in a very complex Hungarian constitutional context the role of history, first, a methodological problem is solved: a clear distinction is made between past, history and memory – also with the help of the two introductive cases. Second, two risks more for the interpretation of history with regards to constitutional law are recalled: the danger of anachronism and the bad influence of historical interruptions. Especially, the second one is identified as a main factor of impact on the Hungarian constitutionalism when handling historical objects or being simply subject to history. Finally, the relation between past, history, and memory with the Fundamental Law of Hungary is described. On one hand, historical narrative plays an identity-creating role, and as such with constitutional symbols but also the symbolic narrative on national history offered by the Fundamental Law, it is a source of legitimacy in the framework of the Hungarian state. On another hand, the so-call historical constitution brings history to the level of constitutional sources even though in a very abstract and indirect way: the achievements of this historical constitution are to be used as guidelines for constitutional interpretation.

Publicisation of Family Law in Czechoslovakia in the 20th Century

Miriam Laclavíková — 2023-06-28

This article analyses the development of Czechoslovak family law in the 20th century, with emphasis on changes in family and marriage, status of women in the family, marriage, and society, and changes in the legal status of children (with a focus on state interest in child education). In particular, we introduce the results of our research on the foundation of the system of state social care for children, the emancipation of children and women from the dominance of their fathers, and a communist experiment to place the family under socialist state supervision. We draw attention to how these changes introduced public law elements into family law and how family law became an independent legal branch. To research these topics, we analysed the following legal acts: Act No. XXXI of 1894 on the Marriage Law, which was in effect in Czechoslovakia from the establishment of Czechoslovakia in 1918 until 1950, was amended through Czechoslovak Act No. 320 of 1919 Coll. on Marriage Contract Ceremonies; Family Law Act No. 265 of 1949 Coll., which was in effect from 1950 to 1964; Family Act No. 94 of 1963 Coll. that was in effect from 1964 to 2005; and Act No. 36 of 2005 Coll. on a family currently in effect. In addition, we worked with case law, sociological research, archival sources, etc. In conclusion, the most turbulent turnover in family law occurred in our territory in the 19th century through the Hungarian Act of 1894. The 20th century, however, was the most turbulent regarding the number of changes, some of which the authors analysed in this article.

Some Remarks on the CJEU’s ‘Pancharevo’ Decision With Special Regard to the Nexus Between the Primacy of EU Law and the National Identity of Member States’

György Marinkás — 2023-06-28

This paper analyses same-sex marriage and adoption and the nexus between the primacy of EU law and national identity of the Member States in the light of the decision of the Court of Justice of the European Union (CJEU) in the Pancharevo-case delivered in December 2021. The CJEU ruled that the Bulgarian authorities were obliged to issue a child’s birth certificate, which is a condition for the issuance of an identity document or passport under Bulgarian national law. A Member State may not rely on national law and identity in this respect. The CJEU relied on the principle of ‘ functional recognition’, which same-sex marriageit had first adopted in its judgment in the Coman-case.

Combating Corruption Crime in Poland

Grzegorz Ocieczek — 2023-06-28

This article highlights issues related to corruption in Poland. The definition of corruption is examined in national and international terms, for example, as developed by the OECD (Organization for Economic Co-operation and Development) or the World Bank. This study contributes to the discussion of the scale of corruption as well as on the effectiveness of anticorruption agencies. Particular attention has been paid to one of the leading special services entites, the Central Anticorruption Bureau, which was established on 9 June 2006 to address the deepening corruption in both the economic and political life in Poland. The study also examines the role of the prosecutor’s office and the efforts to transform its organisational structure to effectively and efficiently combat crime, particularly those related to corruption. In addition, relevant statistics on the effectiveness of anticorruption measures are presented. The fundamental research problem is to understand the current scale of corruption in Poland. The main hypothesis focuses on determining whether the level of corruption has decreased or remained constant since the beginning of the socio-economic transition. This study used the detailed research method—primarily statistics (desk research). Data were collected through face-to-face interviews conducted by the Centre for Public Opinion Research (CBOS). The article ends with conclusions and postulates de lege futura.

Possible Future Legislative and Social Trends in the Protection of State, National, and Community Symbols in Slovakia

Ján Škrobák — 2023-06-28

The paper deals with possible options and suggestions for changing the constitutional and legal regulations of the protection of state, national, and community symbols in Slovakia. In terms of constitutional regulation, the paper concludes that its change is not necessary—even in the context of the low overall rigidity of the Slovak constitution. In relation to the Act on State Symbols itself, only a change in the regulation of the use of the state emblem on the jerseys of the official national sports teams is proposed. Regarding the area of criminal law and administrative punishment, there is somewhat unclear distinction between the criminal offence of disorderly conduct and the infringement under Article 42(1)(a) of the Infringements Act. The distinction between misdemeanors and infringements is defined in the Criminal Code by means of substantive corrective. Thus, the relationship between the two offences in question is not dysfunctional and the ne bis in idem principle will not be infringed. However, the unclear relationship between the merits of the criminal offence and the infringement casts doubt on compliance with both the requirement of legal certainty and the requirements arising from the principle of nullum crimen sine lege certa. Despite the shortcomings of this approach, the only solution appears to be to leave the boundary between the respective criminal offence and infringement for the judiciary. The paper outlines how the courts approach the assessment of cases of defamation. However, the jurisprudence of Slovak courts in this matter is scarce and currently does not provide answers to all relevant questions. The decisions show the need for an individual and contextual assessment of the social danger of every case of defamation. The paper contains a proposal to create a new criminal offence—the defamation of a state symbol of the Slovak Republic. Criminal protection for foreign state symbols would continue to be provided in the context of the crime of disorderly conduct. This paper also provides proposals to change the regulation of the use of state symbols in public sports events. These amendments are intended to close the loopholes of the current regulation, which reduce its regulatory effectiveness. Furthermore, it is proposed to harmonize the rules governing the use of official stamps with state symbols—coat of arms—and with self-government symbols in relation to municipalities and self-governing regions.

Report on the International Conference ‘The Rule of Law between a Legal Notion and a Political Tool’ Organized by the Danube Institute in Budapest on June 6, 2023

Enikő Krajnyák — 2023-06-28

The report concerns the international conference held on June 6, 2023, organised by the Danube Institute in Budapest with the participation of eminent Hungarian and foreign representatives from the academic and political world. The conference discussed the issue of the evolution and the politicisation of the concept of the rule of law and reflected on the ongoing debates between Hungary and the European Union (EU). The conference contributed to a better understanding of the current developments concerning the concept of the rule of law and its context at the international level. This report summarises the presentations at the conference and reflects on the conclusions drawn from the discussions.