Perspectives of Law and Public Administration

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Authors: Assistant professor Marius EZER

The criminal liability related to employment is regulated by means of a special chapter in the Labor Code2. There are also special regulations, other than the ones mentioned in Romanian Labor Code, that are applicable to the participants of an employment relation in case a criminal activity is involved. These special provisions relate also to the applicable obligations arising out of the health and safety regulations where a special importance is given to the analysis of the compliance of the employers with their duties in the field of protection of their employees.

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Authors: Associate professor Ovidiu Ioan DUMITRU; Lawyer Andrada-Laura TARMIGAN

The duty to mitigate damages is recognized as a general principle of law in most jurisdictions and moreover, as a principle of international law3. Therefore, it can be applied by courts in contract claims cases, even when it is not expressly stated by the contract. The main criteria is to determine if the party adopted reasonable measures in order to either minimize its loss or to avoid increasing the other part’s loss. The importance of this principle should not be neglected in Construction Contracts, where the Contractor is generally considered as the one obliged to take reasonable steps to reduce costs in the case of an extension of time. Even if the contract breach is attributable to the other party, the courts must consider the Contractor's behavior regarding measures meant to limit the amount damage and the overall negative effects on the economy of the contract. This paper aims to emphasize some aspects regarding the contractual behavior of both Employer and Contractor, when faced with an obligation to mitigate damages in the context of contractual delays, being a useful tool for practitioners for preventing negative financial consequences.

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Authors: Phd. student Valdete HALITI; Phd. student Driton ABDULLAHU; Professor Gani ASLLANI

The purpose of this paper is to analyses the current situation in the field of public administration in Kosovo in the context of European Integration. This paper presents a reflection of the challenges faced by the public administration in Kosovo, in the context of the requirements for advancement and reform of public administration arising from the European integration process, respectively the requirements related to the public administration arising from the criteria Copenhagen and Madrid, on one hand, and the Stabilization and Association Agreement (SAA) on the other. The paper is mainly based on analyses of the legislation in force, which regulates public administration issues and analyses of the way that SAA regulates public administration issues, scientific literature and other important data. Result of studies show that reformation of public administration in Kosovo in accordance with the models and standards adopted and applied by other democratic states, especially the EU member states, has been and remains a crucial challenge for our country, because in addition to positive developments, various negative phenomena have also appeared, which have hindered the advancement and development of public administration in Kosovo. The article formulates recomandation the advancement of public administration represents one of the major challenges and remains the focus of ongoing reform in order to meet the EU standards, to advance further in the other stages of membership, until full membership, as a goal of the Kosovo.

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Authors: Professor assistant Veton VULA; Doctor of science Mensut ADEMI

Abstract: The phenomenon of the domestic violence in Kosovo holds an important position in the positive legislation in Kosovo. This phenomenon apart from causing consequences to an individual as a victim, at the same time it causes consequences also for other parts of the family. Domestic violence has been present also in the past in the Kosovo families, but of course with lower intensity by keeping total discretion within the family whereas access of the society in this problem was very small. Violence against women is a complex problem which includes more than an act itself in the personal relations between the husband and the wife. It is a social problem of broad dimensions whose roots are found in the historic attitudes on women and the marriage relations. Socialization of men and women in our society and nomination of women in inferior position and rules that keep women economically dependent, makes women more vulnerable on violence committed by men with whom they live. This victimization of women from their husbands is strengthened from economic situation, mentality and tradition as well as not well awareness among the population on the domestic violence. A phenomenon which increased the number of various forms of violence against women is also Pandemic COVID - 19 who as the consequence of isolation of families within closed environments has had an impact to a category of irresponsible spouses to undertake various forms of violation against women. Violence against women is a serious problem and it deserves big attention of authorities (national and international). There are dozens of years during what this problem has been put in the agendas of many national and international organizations state or nongovernmental organizations. At the international level this attention has resulted with a number of conventions, legal norms, political agreements, directives, recommendations and practical advices. Paper concludes that the denunciation without hesitation and the total respect of these norms with the zero tolerance against the perpetrators of the domestic violence is the only solution to minimize this phenomenon.

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Authors: Phd. student Muhamet BRAHIMI

This work analyzes the international identity of the European Union (EU) in the context of the new world order with a focus on issues developing in Kosovo. The development of EU and its unique character in relation to Public International Law (PIL) has made the issue of legal subjects more complex. Unlike traditional international organizations, EU is governed by the principle of supremacy. PIL is defined as the law of nations, meaning that the rules and principles are meant to govern relations between states. Although international law has now developed, and organizations and individuals are also considered as subjects of international law, nonetheless, as a starting point, international law is only applicable to those subjects that have international personality. How does the EU claim to have international personality when the member states are sovereign states, but at the same time part of a Union with elements of a state? In this context, the weight of the subject is related to the fact that geopolitics has changed and the capacity of the EU as a geopolitical actor is put to the test in the Balkans, since geopolitical competition is high amongst the big global powers.

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Authors: PhD. student Etleva PAPLEKAJ

The United States of America defined the national purpose in the first two words of its Constitution. The United States of America is the state where the rulers have gained the authority to speak, to act on behalf of 'We the People'. 'We the People' was the philosophy of the 'founding fathers' of the Constitution of the United States of America. 'We the People' was the theory, the attitude that would serve as a guiding principle of governance. For the 'Founding Fathers', the two-word phrase 'We the People' was a creed, a doctrine, an ideology in action and not in words. The history of the Constitution of the United States of America taught us that ‘We the People’ which was converted to myth deserve this conversion. Through this research, keeping in mind the content and the historical background of the U.S Constitution we will elaborate and answer the below questions. How is it possible for the Constitution that began with 'We the People' it did not list the fundamental rights and freedoms but also denied the fundamental rights and freedoms of the individuals (people)? How are explained the slavery, the denial of citizenship, the restrictions of the right to vote for different groups of American society of that time? Was there any purpose for the deprivation of the fundamental rights and freedoms of the individual in the Constitution of the United States of America? Did the Constitution of the United States of America at the drafting time recognize the right of women to vote? Through this article we will try to shed light on this seemingly contradicts between the myth of the Constitution of United States of America and the ‘denied’ or ‘unforeseen’ fundamental rights and the role of the amendments of U.S. Constitution in this process.

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Authors: Associate professor Petruț CIOBANU

Frequently, thefts have as material object goods with a considerable economic value, reason for which they are committed on people with a good material situation, usually being businessmen or foreign investors. Robbery is one of the most serious crimes, damaging the heritage and life, implicitly the health of the person, and through serious consequences it has a negative effect on the population. In order to combat the criminal phenomenon, it is useful to determine the areas and environments in which the crimes of theft and robbery are committed with predilection. In addition, the authorities may contact the representatives of the companies that are located and operate in those areas/environments to guide them in order to ensure proper security and the installation of surveillance systems. The crime prevention must be accompanied by a socio-cultural approach to maximize its impact on the entire population.

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Authors: Professor Florentina Camelia STOICA

This paper considers certain aspects related to the application of the article 493 paragraph (1) letter (a) of the Criminal Procedure Code versus the insolvency procedure of the legal entity under the conditions of a distinction within the article on the interference with the insolvency procedure of the legal entity. The recent decision of the High Court of Cassation and Justice seems to have cleared the issue, but from our point of view the debates may be made from in the doctrine. The article does not aim so solve this issue, but it presents the three opinions on the application of article 493 paragraph 1 letter a of the Criminal Procedure Code. At jurisprudential level it seems that the intervention of the legislator on the interpretation of this article is not excluded. This orientation is based on the argument that the scope of the preventive measure made in the criminal trial is to prevent evading the criminal liability.

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Authors: PhD. student Radu-Mihai NECULA

The purpose of this study is to establish the categories of arbitral awards that may be classified as foreign by reference to the provisions of the Code of Civil Procedure and the provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted in New York (1958). In carrying out this approach, we had as a starting point certain doctrinal opinions that we tried to analyze critically, in order to capture as clearly as possible the regulatory differences between the provisions of the Code of Civil Procedure and those of the New York Convention, in regarding the qualification of an arbitral award as foreign. Thus, following the analysis of the approached subject, we found that the provisions of the Code of Civil Procedure differ from the provisions of the New York Convention, regarding the qualification of an arbitral award as foreign, the domestic provisions being more favorable than the conventional ones, in terms of in the execution of arbitral awards.

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Authors: Associated member Nelu Dorinel POPA; Student Cezara POPA

Subcontracting represents the facility granted by law to tenderers to fulfill part of the obligations that are assumed by the public procurement contract or a part of the project, through a third party called “subcontractor”, if the offer will be declared as winner by the contracting authority. In practice, on the one hand, it is noted the tendency of the contracting authorities to meet the subcontractors, which is justified by the desire of the contracting authorities to protect their own interests and which corresponds to a higher degree of transparency; subcontracting is to be recommended to the contracting authorities when the public procurement is carried out on their own establishment or on establishments which they have under surveillance. On the other hand, it is also noted the tendency of the tenderers and subcontractors to circumvent this transparency and to disguise subcontracting in the form of relative simulations of various types, precisely so as not to inform the contracting authorities and so that the tenderers obtain certain benefits. In this respect, some doctrinal opinions, some cases of jurisprudence and comparative law references are relevant. In the light of those mentioned above, we have expressed some proposals de lege ferenda.

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Authors: Associate professor Dr. IUR. Zdenek FIALA; Associate professor Dr. IUR. Olga SOVOVA

In the introductory remarks, the paper highlights the shared past of the central European countries and the most important historical moments for the development of the public administration. Further, the paper points out various theoretical approaches to the definition of the term public service, public administration and its classification concerning the academic background in the Czech Republic. Subsequently, the primary public service legislation in the Czech Republic is referred out. On this basis, public service and administration challenges and issues are formulated. The authors approach the concept of public service in a broader sense, focusing on public service in general, service of the state officials, officials of territorial self-governing municipality units, as well as public services provided by the private sector. The paper examines the new role of the public administration in the global health and public services crisis. The authors evaluate the possibilities of the new governance methods for re-directing the public service and administration to the new role of the crisis and post-crisis managers.

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Authors: Postdoctoral researcher Oana Nicoleta RETEA

The identity of a person mainly supports discussions in a philosophical way, its definition being the subject of multiple debates. However, from a philosophical point of view there is no unanimity regarding the concept of identity, the established interpretations cumulating a series of common points, but subject to the mark of personality. In order to satisfy the need to differentiate humans in all manifestations of social life, and in order not to give rise to confusions about one's identity, the use of the name was imposed. The aim of this article is to contribute to a better understanding of both rights and to emphasis each and any existing connection between them. Another aspect that determined the elaboration of this article is represented by the fact that the doctrine is largely limited in treating the name right only in the chapter allocated to the identification attribute of the natural person without emphasizing its valences according to the conclusive legal relations.

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Authors: Lecturer Hazbi LIKA

Abstract: In the process of nation-building in Eastern Europe in general and in particular in the territories that were under Ottoman occupation in the Balkans, the formation of the Albanian national identity is the most atypical and perhaps the most complicated case. This is due to the fact that the Albanians as a nation, after the Ottoman conquest, faced a situation of confrontation with some very strong identities or sub-identities, such as religious identity, provincial identity, dialect-linguistic identities, etc. Particularly problematic is the fact that Albanians as a population and as a nation even today belong to at least three major religious traditions: Catholicism, Islam and Orthodoxy. The clash with these religious sub-identities in the face of the emphasis on ethnicity and language as the projected foundation of the Albanian nation by the intellectuals of the Albanian national Renaissance, but also of the state power of independent Albania, presents the object of study and the importance of this scientific research.

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Authors: Lecturer Ovidiu Horia MAICAN

The harmonisation of national competition legislation with European Union law has largely been completed in Hungary, mainly by modifying the Competition Act of 1997. The main features of the Competition Act are unfair market practices, unfair influence on consumer decisions, agreements restricting competition (vertical and horizontal), abuse of a dominant position and merger control. In the area of state aid, there is a general prohibition on the provision of such aid, with the reservation that exceptions might be determined by government decrees. In view of Hungary's accession to the EU, from 1 April 2002, further laws have come into force that are to be enforced with the Hungarian Competition Act, creating a double set of regulations. The new rules incorporate certain European competition rules into Hungarian law.

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Authors: Student Umar HUSIN; Lecturer Setiawan NOERDAJASAKTI; Lecturer Nurini APRILIANDA; Lecturer Moh. FADLI

Restorative justice is a preventive response to understanding crime in a social context. It is a challenge to unearth the roots of offence and crime to be able to break the cycle. This restorative justice is based on the assumption that the crime originated in a social situation and recognizes that the perpetrator of the crime has also been injured. Therefore, the community must take over the responsibility to improve the condition that has triggered the onset of evil and also work to cure it. International developments in the concept of criminal justice and procedures for handling criminal cases in several countries have been known penal mediation (penal mediation, mediation penal, mediation in criminal matters, Victim - Offender Mediation) which is part of the criminal justice system. Mediation, previously known only in civil law, has been frequently used in some countries to resolve criminal cases. Penal mediation is a manifestation of the concept of restorative justice, which seeks to restore the rights of victims. Thus, restorative justice is based on holistic philosophy. The application of holistic thinking can help strengthen the capacity of the existing justice system. The main challenge in its application in the modern world is how to promote community participation, and at the same time protect the rights and interests of victims and perpetrators who commit offenders. This legal research is normative juridical research, through statute approach, conceptual approach, so that it can get a comprehensive understanding of the construction of criminal case resolution law through penal mediation in the perspective of Restorative Justice.

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Authors: Professor Dobrinka CHANKOVA; Associate professor Valentin VASILEV

The paper explores the changing role of leadership in a modern organisational context. The objective is to pay attention to the relationship between traditions and dynamically changed realities in contemporary management. The relatively new phenomenon - deliberative democracy practices - and their use in modern governance are under scrutiny. The central thesis of this paper is that efficient leadership and deliberative democracy are not competing, but reconcilable paradigms and could exist in a good symbiosis. Classical research methods, such as comparative analysis of theories and practices, are used in the elaboration of the paper. The systematic approach to seek a holistic vision for the improvement of leadership in a democracy is also used. A small-scale qualitative survey among the random population about the role of leadership, public deliberation and their interaction in a time of intensive social processes adds extra value to the research. The biggest challenge faced by the theory and practice is identified - to instrumentalise the leadership and deliberative practices efficiently so that the decisions taken to be considered rational, legitimate, and protecting fundamental human and other rights of all affected who will feel respected and committed to their implementation.

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Authors: Assistant professor Roxana Maria CHIRIEAC

Considering the current COVID 19 pandemic, but not limited to this exceptional situation, contractors can experience different types of setbacks that may result in the impossibility to complete the works they have undertaken by a contract, either in due time, or at all. Positive law institutions, regulated in both common and continental law systems may help adjusting these conditions, taking into account particular situations that constructors might encounter. Thus, generally determined institutions, such as force majeure, hardship, imprevision, frustration or even the impossibility might lawfully intervene in such contracts, depending on the circumstances of each case, and also taking into account the positive law under which the contract is drafted. By this study, we aim to analyze the impact of the above-mentioned institutions on construction agreements, that in general imply a longer execution term and thus, must usually be drafted taking into account these clauses. The study mainly concentrates on the Romanian regulations in force, but also takes into account the international dimension, as we are also looking at common law institutions that are generally recognized by international practice.

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Authors: Lecturer Nicolae MĂRGĂRIT

The means of proof used in criminal cases differ depending on the content of the crime and the circumstances in which it was committed. Each means of proof has its own administration procedures. Thus, the means of proof is a legal category that designates the ways or operations by which the content of the evidence is discovered and valued under the law. The witness's statement, as a means of proof, has been known since ancient times, and can be considered the first means of proof used in judicial probation, because in the periods when those who were literate were few. The doctrine has shown that witnesses are the "eyes and ears" of justice. The reports made by the witnesses, the criminal investigation or court bodies have acquired over time different names: testimonies, testimonial evidence, witness testimony, witness testimony, witness statements, etc. In the Romanian criminal trial, in the current regulation made by the new Code of Criminal Procedure, Art. 97, this means of proof is called the statements of witnesses. The new Code of Criminal Procedure defines the notion of witness as the person who has knowledge of facts or circumstances of fact that constitute the evidence in the criminal case Art. 114. to obtain written evidence were witnesses.

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Authors: Associate professor Gina ORGA-DUMITRIU

Not even the most optimistic scenario could have anticipated the impact of Directive 93/13/EEC on unfair terms on Member States' national law 25 years ago. The original formula arranged by the EU legislator (by resorting to the conditions constituting the triple test of establishing the abusive character - the lack of negotiation of the clause, the significant imbalance between the rights and obligations of the parties and the professional violation of the good faith requirement) was strengthened by the developments at the level of jurisprudence through the exercise by the Luxembourg Court of its interpretative function. The contribution of the Spanish courts to the detailing and refinement of the reading grid of the said Directive is significant. The judgment of the Grand Chamber of 21 December 2016 testifies to this “Spanish judicial activism” being pronounced following preliminary references made by the Juzgado de lo Mercantil n°1 of Granada and the Audiencia Provincial de Alicante by which the Court of Justice was called to clarify whether i) art. 6 para. (1) of Directive 93/13 must be interpreted as precluding national case-law which limits in time the restorative effects of the nullity of threshold thresholds as a result of their finding of abusive nature, ii) national courts may limit the retroactive effects of the nullity of thresholds by applying the criteria (in good faith and the risks of serious consequences) used by the Court of Justice to limit in time the effects of an interpretation of a rule of European Union law and whether iii) art. 6. para. (1) of the same directive and art. 47 of the Charter of Fundamental Rights of the European Union on the right to effective judicial protection are consistent with an automatic extension of the solution limiting the restitutive effects pronounced in a class action to an individual action finding a threshold clause declared abusive. The novelty of the case-law, however, lies in the unpredictable and misleading analogy used by the Spanish Supreme Court to limit the retroactivity of unfair terms by using the criteria applied by the Court itself to limit the effects of interpretation in its own judgments. No less, we will comment on the meanings related to the articulation between the collective action and the individual action, the Court having the possibility in the present case to refine the reasoning set out in Sales Sinués and Drame Ba regarding the legal nature and the relationship between the two actions. Finally, we will draw conclusions from the Court's silence this time regarding art. 47 of the Charter and the correct way in which it should be understood.

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Authors: Associate professor Charlotte ENE

For decades, the institutions of European Union have strived a varied range of efforts to bring the treaty provisions regarding the freedom of establishment of the companies within the single market into operation. In the view of the Court of Justice of the European Union, developed in several decisions issued from the Centros until the Polbud case, the freedom of establishment for companies includes, inter alia, the right to cross-border conversions, consisting in the possibility of a company having the nationality of a Member State to convert itself into a company governed by the legislation of the other Member State without losing its legal personality. Recently, a very welcomed piece of legislation, the Directive 2019/2121 on cross-border conversions, mergers and divisions - as part of the EU company law package, was adopted in order to stimulate cross-border mobility of the companies, and, in the same time, to provide a coherent framework for the complex cross-border operations (meaning the cross-border conversions, mergers and divisions). The question is if this directive will provide sufficient protection for the multiple stakeholder of the companies.

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Authors: Associate professor Ana VIDAT

Temporary/restrictive measures highlighted by the legislative context – necessary to prevent and eliminate imminent threats to fundamental rights and freedoms – also target the execution of individual employment contracts; the following categories of employers are covered by the present measures: those in the private system, central and local public authorities and institutions, regardless of the method of financing and subordination, as well as autonomous utilities, national companies, national companies and companies in which the share capital is wholly owned or majority state or an administrative-territorial unit.

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Authors: Associate professor Monica GHEORGHE

In a series of decisions ruled for preliminary questions, the Court of Justice of the European Union interpreted the notion of “working time”, as well as that of “resting time”, defined by Directive 2003/88/EC of the European Parliament and Council of 4th of November 2003 on certain matters of organizing working time. The objective of the Directive is to guarantee superior protection of workers’ security and health, providing in this respect a series of minimum rules. In terms of these European rules, CJEU had to rule again on certain submitted preliminary questions. This study aims to highlight a part of these decisions and their incidence in the employment relations practice. The national court, in settling a conflict concerning the calculation of the working time of an employee, shall be bound to verify the incidence of absolutions made by the European court in the matter and, subsequently, to apply them for the factual case it settles. Indirectly, the employers are bound to take into account the solutions of the European court.

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Authors: PhD. student Fitim GASHI; Professor Bedri PECI

Following the national and EU legal framework, protection of personal data and privacy includes almost all type of business including the banking sector. Kosovo as a new state is trying to build a legal system which aims to be in compliance with the EU legal framework also in area of personal data and privacy and in the meantime in compliance with consumer protection rules. Taking into consideration that Kosovo recently established the National Agency for Protection of Personal Data while banks are dealing with big data, customers are faced with the situation where their data can be not treated as law requires. The protection of personal data is a fundamental right and banks deal with personal data in daily basis. We also may know that banks are obliged to receive personal data but the main challenge remains the protection of customer data and privacy. The aim of this paper is to raise the issue of protection of personal data and privacy in banking sector as the banks receive and handle personal data in a daily basis. On this paper we will see how the protection of personal data is regulated and how banks are obliged to protect personal data and customer privacy in Kosovo and how it has impact in the consumer protection in banking sector.

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Authors: Teaching assistant Adelina RAKAJ

The aim of this case study is to analyze the protection of the rights of the defendant in criminal proceedings and the implementation of international standards on the rights of the defendant in criminal proceedings in the domestic law of the Republic of Kosovo. This paper will focus on the role of the Constitutional Court of Kosovo in protecting the rights of the defendant during a criminal process, based on specific cases decided by the Constitutional Court of the Republic of Kosovo. For more than ten years since the Declaration of its Independence, Kosovo has established a legal system, which provides effective protection for the rights of a defendant. A significant role in this regard was played by the fact that Kosovo directly applies the jurisprudence of the International Court on Human Rights (ECtHR), as a constitutional obligation. Out of all institutions of the legal system in Kosovo, which are obliged to protect the rights of defendants, a determinant role was played by the Constitutional Court in such regards, therefore, this paper presents arguments how the Constitutional Court of Kosovo has become a guardian for protection of the rights of defendants, in compliance with the Jurisprudence of the ECtHR.

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Authors: Ph.D. student Costin MOLDOVEANU

This study is focused on the divergences of jurisprudence that appeared following the amendment, as at mid-2018, of the rules of territorial jurisdiction inserted in the content of the Law on Administrative Contentious. The new provisions establish the exclusive territorial jurisdiction of the administrative contentious court of the place of domicile of the natural person or of the place of registered office of the legal person of private law, part of the judicial conflict of administrative law, facilitating the access to justice of the individual by the proximity of the seat of the court, the reduction of paid court charges etc. However, the desiderata taken into account by the initiators of the legislative amendment were not achieved in the case of disputes brought by trade unions having as scope of works the employment relationships of civil servants, trade union members. The different appreciation of the capacity in which the trade union can participate in the lawsuit (plaintiff or simple representative of the civil servant) determines jurisprudential divergences in establishing the competent court from a territorial point of view, successive dismissals and numerous negative conflicts of jurisdiction. Analysing the legislative framework and the relevant jurisprudence, including from the point of view of their evolution, at the end of the study concrete proposals are made to underlie the unification of jurisprudence and even the regulation of special rules of territorial jurisdiction in disputes that call into question the employment relationship of the civil servant.

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Authors: Lecturer Ovidiu Ioan DUMITRU

From our beginning the fight for resources and the human wish of growth and wealth leaded to a competitive behaviour of individuals and, by extension, that of their economic undertakings. While some developed an economic outlook on competition, there were some authors furt her adding the legal component as a governing principle of competition. In the spirit of a form based approach, early EU competition law aimed to insure the economic freedom, missing openness towards certain practices. The founding Treaties, the modifying ones and the European acts in the field outlined the safeguarding of the internal market as a goal of competition law. Still, an important source of European competition law was offered to us by the case law. The shift towards the effects based approach en sued the regulation as ex post assessments of the merger impact on competition were undertaken. Different implications of Merger Control in EU competition law will be discussed in this paper, one which follows the spectacular evolution of the impact of dif ferent European Decisions on the change of competition law. The paper is a study on evolution of the Merger control and the analysis how much impacted two European Commission decisions prohibiting mergers the Single Market the reforms of each regulation de velopment before each one of them.