Mar
AJEE Monthly Update: March 2022
AJEE Monthly Update: March 2022
In March 2022, a few new Online First publications were placed online under these links:
Lurdes Varregoso Mesquita and Catia Marques Cebola European Small Claims Procedure: An Effective Process? A Proposal for an Online Platform
Statistics concerning the use of the European Small Claims Procedure implemented by Regulation 861/2007 (as amended by Regulation 2015/2421) show that this mechanism has not been as successful as expected. When choosing between a domestic and a European instrument, the creditor most often opts for the domestic procedure. They avoid an instrument that is less well known, that they do not fully manage, and that has limited integration in domestic law.
This article starts with the legislative aAJEE Monthly Update: March 2022nalysis of the European Regulation 861/2007, using analytical and hermeneutic approaches. Empirical methodologies will also be applied since the practical application of the rules established by the European Regulation will be analysed in order to build the proposal of an online platform for the small claims procedure.
Bearing in mind the weaknesses of the European Small Claims Procedure, we conclude that an online platform incorporating alternative dispute resolution mechanisms is the best option to promote access to justice. A list of arbitrators or judges designated by each member state to decide the cases submitted on the platform could be a solution to overcome lengthy court processes. The decision shall be standardised for all proceedings according to a model incorporated into the platform. Thus, the enforceability will be facilitated, and the process will be more accessible to the parties, ensuring the right of access to justice in this context.
Bystrík Šramel and Libor Klimek The Prosecutorial Monopoly of the Slovak Public Prosecution Service: No Access to Justice for the Injured Party?
The recodification of criminal law realised in the Slovak Republic in 2005 brought several new elements to criminal proceedings. One of them was the expansion and significant strengthening of the discretion of the public prosecutor in criminal proceedings. However, this authority of the public prosecutor’s office is, in many cases, perceived sensitively and controversially in Slovak society, especially in connection with many cases and scandals, when the prosecutor simply stated that ‘the act did not occur’.
One of the related problems is the fact that the injured party in the Slovak Republic has essentially no powers that would, independently of the prosecutor’s office, ensure the control of the prosecutor’s discretionary powers directly through an independent and impartial court.
This situation also stems from the fact that the public prosecutor’s office has a prosecution monopoly in Slovak criminal proceedings. However, the current prosecution monopoly of the prosecutor’s office is not a rational consequence of its historical development in our territory but a consequence of the coup d’état in 1948 and the subsequent onset of the communist regime. The possibility for other entities (e.g., the injured party) to exercise their rights through criminal law institutions has thus been minimised.
Based on the above, the aim of this paper is to examine the existing scope of the discretion of public prosecutors in Slovakia, analyse the possibilities of controlling the exercise of these powers, and answer the question of how to improve the current possibilities of the control.
Adrián Vaško and Jaroslav Ivor The Right to a Fair Trial and the Right to a Fair Decision in Slovak Criminal Law
The right to a fair trial, resulting from international documents, the Constitution, and the legal order of the Slovak Republic, is confronted in terms of content with the requirement and reasonable expectation of fair decision-making in criminal proceedings. The paper seeks to define the concept of justice and its procedural and substantive aspects as the course but also as the result of criminal proceedings. Criminal proceedings are always aimed at resulting in a certain decision of the body active in criminal proceedings and the court. Criminal proceedings without a decision would not make sense. The content and quality of the decision, especially from the point of view of legality and fairness, reflect the legal culture of the state and its bodies.
Justice in law has an ambiguous meaning from a legal-theoretical point of view, mainly because it is a concept with a high degree of abstractness. No legal-theoretical definition of justice can be found in the case-law of Slovak as well as Czech courts. In Slovak case law, the term justice occurs exclusively in the context of the right to a fair trial, i.e., at the procedural level. However, as already mentioned, the Criminal Codes also refer in several places to the term ‘fair decision’ as the result of criminal proceedings, i.e., the substantive level of justice. It should be recalled here that each individual has his or her own autonomous idea of justice and his or her own criteria for evaluating other people’s actions. It is almost impossible to reach a consensus on guilt and punishment in an individual criminal decision with the public and especially with the parties to the proceedings, i.e., the injured party and the accused. Especially, individual justice in the decision is debatable, especially in cases of diversions or in the application of the principle of opportunity.
