INTRODUCTION

In this contribution the focus will be placed on rules which determine the law which is applicable to a cross-border succession. Currently, these rules are not unified because of the lack of binding international and European instruments in this area. As a result, every state has its own national rules on the law which is applicable to succession. This situation can result in different outcomes to the question of which law is applicable to a cross-border succession. The following example may serve as an illustration:

It goes without saying that the different approaches could have important consequences for the persons involved.

In a cross-border succession, when the deceased has made no choice as to the applicable law in a testamentary disposition, the applicable law is determined objectively at the moment of death. As the moment of one's death is uncertain, it can be difficult to plan one's estate during one's lifetime. A way to remove this uncertainty is to allow a testator to choose which law shall be applied. The chosen law, the subjective applicable law, replaces the objective applicable law including its mandatory provisions. This kind of choice is called a conflict of law designation, a ‘kollisionsrechtliche Verweisung’. A choice of law designation gives a testator the freedom to testate: the testator knows which law shall apply to his succession and, therefore, he can plan his estate during his lifetime.

Not only does the principle of freedom of testation play a role in private international law, the principle of family protection also gives rise to several important questions in this context. What if substantive inheritance rules which protect the family of a deceased are considered by a State to be overriding mandatory rules?

INTRODUCTION

In the common law world England & Wales is the powerful jurisdiction. What we do in London is followed in a number of other jurisdictions, both legislatively and by precedent.

We apply only the lex fori in family proceedings, we do not apply the law of another jurisdiction. Under our law there are no property consequences of marriage. However, there are profound property consequences of divorce. In that event the parties submit all relevant assets to a process of redistribution in the discretion of the trial judge, conducted now under Part II of the Matrimonial Causes Act 1973. Parliament has put few bounds on the exercise of that judicial discretion. There is only a checklist specifying first child welfare and then all the circumstances having particular regard to assets, needs, age, duration of marriage, health, contribution and conduct. Rather more the exercise of the discretion is guided by precedent, that is to say previous reported decisions, particularly of the appellate courts.

HISTORY

It is worth sketching the background to see how statutory provisions not fundamentally reformed since their introduction in 1971 have been construed and to trace the steps by which we have walked from where we were then to where we are now.

The first powers to order capital payments had been introduced in 1963 but the judges had chosen to exercise them with great caution. At the outset the extensive powers introduced by the Matrimonial Proceedings Act 1970 were also hardly applied innovatively but as a component in a financial scheme at the heart of which lay periodical payment orders.

Economic growth, prosperity, the erosion of hallowed distinctions between capital and income, the decline of the aristocratic and landed classes, the emergence of huge fortunes very rapidly amassed: all contributed to a fresh approach. The clean break and the capitalisation of future liabilities in a single present payment became the norm when affluent people divorced. For this there was statutory foundation in the reforms introduced by the Matrimonial and Family Proceedings Act 1984. However, there remained a distaste in the senior judiciary, still exclusively male, for the megabucks publicised in Los Angeles settlements and a determination not to introduce standards that might encourage the gold-digger or spread cynical disregard for the marriage vows. This judicial attitude is well illustrated in the judgments in the appeal in Preston v Preston.

INTRODUCTION

Research shows that an ever-increasing number of child maintenance payments involve transnational elements. The European Union has no right to ignore these trends in order to provide minimum guarantees for European citizens. In this regard Article 65 of the EC Treaty, which speaks of measures in the field of judicial cooperation in civil matters having cross-border implications, is of crucial importance. It provides a basis for two types of initiatives. First, the official efforts to establish simplified rules of procedure in relation to child maintenance obligations have been made. Second, attempts to lay theoretical as well as practical foundations for harmonizing and unifying substantive family law are evident.

Although child maintenance is still behind other fields of family law where practical harmonisation steps have already taken place, it is rather a question of time when this will happen as the recent research in this field reveals great differences in EU Member States` legal systems. Bearing in mind the substantial amount of scepticism towards the possibility of family law harmonisation, a comparative look at the child maintenance laws of three EU countries – Estonia, Latvia and Lithuania – which were once already unified could be important. An overview and comparison of family legislation developed in each country after the re-establishment of independence might contribute to the search for an answer to the following question: are child maintenance laws suitable for harmonization at all?

HISTORICAL BACKGROUND

Often described as the ‘Baltic states’ and considered to be one region, in the 1940s Lithuania, Latvia and Estonia were included in the territory of the Soviet Union. During the period of Soviet rule all three countries experienced the impact of the unification of all legal spheres, including family law.

THE PERIOD OF SOVIET OCCUPATION

The developments in the three countries` family laws during the period of occupation encompass three main periods:

1. The period of Russian family law. The Soviet occupation of Lithuania, Latvia and Estonia in 1940 suspended the family legislation of the former independent states. A decree issued by the Presidium of the USSR Supreme Soviet on November 26, 1940 applied the civil legislation of the Russian Federation to the Baltic countries; in particular, the Russian Federation's Code on Matrimony, Family and Wardship adopted on November 19, 1926 came into force.

INTRODUCTION

Honore de Balzac proclaimed that to enter into a marriage contract was one of the holiest duties of a couple about to get married. In his novel Le contrat de mariage he describes the long and intricate negotiations that traditionally took place in France before marriage, not only in aristocratic but also in bourgeois families. Contracts with regard to matrimonial property are to date an integral part of most Continental European legal systems, as is the ensuing freedom of contract. In English common law, on the contrary, pre- or post-nuptial contracts were for a long time considered to violate public policy, and only recently have courts begun to accord them a role in the granting of financial relief upon divorce.

This controversy about party autonomy and its boundaries goes to the heart of marriage and family law: in family law, contracting can affect either the parentchild relationship, as do agreements on the exercise of parental responsibility, or affect affiliation or surrogacy agreements. Such contracts involve children as third parties, who are in particular need of the state's protection. Different questions generally arise when adults enter into agreements concerning their relationship: why and to what extent should they be free to determine the rights and obligations during the existence or upon the dissolution of their relationship? The degree to which couples may regulate their partnership by contract raises fundamental questions as to the role of marriage law in pluralistic societies. What is the state's role vis-a-vis increasingly diverse forms of partnerships and in view of a growing acceptance of different life styles and religious or ideological views? The answers to these questions vary: on the one hand, according to a postmodern view, we can dispense with marriage law completely and the regulation of intimate relationships should be left to private ordering. On the other hand, there is a marked tendency to create new types of partnerships in response to the increasing diversity of family life. In many Western countries, registered partnerships or civil unions provide new options for couples. In some parts of the US, state-sponsored alternative forms of marital agreement such as covenant marriages have been introduced. State regulation of de facto relationships or cohabitation has also increased, especially with regard to the provision of certain financial adjustments upon the dissolution of the partnership.

INTRODUCTION

European legislators have come up with different legal regimes to provide for situations in which a person – due to old age and/or disease – is unable to make decisions for him- or herself. One of these instruments is the living will, also known as an “advance decision” or an “advance directive” concerning medical care. This legal instrument has been constructed to ensure that a person's will concerning medical treatment is adhered to even at a time when the patient is unable to make the required decisions. This does not apply to elderly people only, but also to people with terminal illnesses and people who, for religious reasons, object to special medical treatments.

Providing health care directions for a future incapacity is a legal undertaking which stands at the threshold between many legal disciplines. The link to health law and the law dealing with incapacity is obvious. However, health care directions are also linked to criminal law when it comes to the question of differing between rightful medical treatment, to which the patient consented, and penalized treatment causing bodily harm or even homicide, where the patient did not consent. Here physicians need clear guidelines on the existence of a valid consent. Public law is also involved when it comes to the questions of how far the duty of a state with respect to the protection of life goes, and how far the selfdetermination of a patient reaches respectively.

This article will focus on the private law aspects of living wills as part of the law on incapacity. Before I go into the details of the German law on living wills, I would like to provide a short overview of the legal rights and interests concerned; followed by a detailed analysis of the preconditions and legal consequences of a living will as set out in the German Civil Code. I conclude with a short analysis of whether the German law succeeds in striking a balance between the rights and interests involved.

THE PROTECTION OF ELDERLY PERSONS ESP. CONCERNING MEDICAL CARE

RIGHTS AND INTERESTS

Low birth rates and a slow but steady increase in life expectancy characterise the age structure in the European Union.

Criminal courts stand at the heart of the field of criminal justice, endorsing actions taken at earlier and later stages of the criminal justice process. Police and prosecution seek approval of the courts for particular investigative techniques and bring completed investigations before the court. Prisons draw a degree of legitimacy from the fact that their work represents the realisation of decisions made in the courts. Bourdieu (2002: 824) describes a ‘chain of legitimation’ removing individual acts from the category of arbitrary violence and the courts provide a vital link in this chain. The judicial system has been said to hold the ‘center of ideals’ of Western governments (Arnold 1965: 128); in the criminal trial itself the dignity of the state and individual are juxtaposed (Arnold 1965: 128). As well as this symbolic significance, the trial can have an important functional element in prompting and informing public debate. The criminal case, like other less formal responses to ‘trouble’ serves as an empirical example against which norms and values are tried and tested (Arnold 1965: 42; Llewellyn and Hoebel 1941: 23 ff). The criminal courts are thus central to the legitimacy of the coercive elements of state activity and to the criminal justice agencies in which such coercive power is invested. In spite of this central position it has been observed that, with some exceptions, criminological research has tended to focus on policing and corrections; the black box of courts linking the two is left as the remit of legal scholars (Brodeur and Shearing 2005: 382). Yet to analyse international interventions in policing and prison services without also engaging with criminal courts would leave a significant gap in understanding international intervention in criminal justice in Bosnia and Herzegovina (BiH).

This chapter starts by discussing the role that courts play in society, before examining their particular role in societies undergoing transition from periods of conflict or authoritarian government. The importance of particular procedural techniques is examined through a brief discussion of plea-bargaining, underpinning a more detailed discussion in relation to BiH in chapter 6. The subject of plea bargaining is also put into the context of policy transfer and legal transplant literature, first introduced in chapter 1.

Criminal Justice Reform Agencies

Metings and Interviews

In spite of the problems highlighted in chapter 7, reform and reconstruction of the prison systems of Bosnia and Herzegovina (BiH) have received neither the same degree of international attention nor investment as police and court services. The matrix of twenty agencies engaged in rule of law and criminal justice reform projects in BiH in August 2004 in appendix 2 gives a snapshot of intervention. These agencies included some with mandates specific to BiH (e.g. Office of the High Representative and the European Union Police Mission), branches of the UN and EU, non-governmental organisations and charitable foundations, and nationally-run development agencies from the US and Europe. Of the twenty organisations, thirteen were involved in police reform, sixteen in the reform of judicial systems, yet only four in prison based programmes of reform at the time it was produced: the Office of the High Representative (OHR) was seeking a site for a pre-trial detention facility to serve the state-level Court of Bosnia and Herzegovina (Sud BiH); the Organisation for Security and Cooperation in Europe (OSCE) was monitoring pre-trial detention as part of a mission to supervise the implementation of new Criminal Procedural Codes; only the Council of Europe and the UK Department for International Development (DFID) were engaged with reforms which dealt explicitly with the provision of facilities for convicted and sentenced inmates. Subsequent to the production of that matrix in August 2004, the Canadian International Development Agency/Agence canadienne de développement international (CIDA/ACDI) has joined reform projects in cooperation with other donors, and a newly formed Office of the Registrar for War Crimes and Organised Crime has been involved in the management of a state-level pre-trial detention unit and in planning a state-level detention facility to hold both pre-trial and sentenced inmates. Aside from such organisations actively working with BiH authorities to develop the country's prison systems, human rights NGOs such as Amnesty International, the Helsinki Committee, and Human Rights Watch have monitored and reported on conditions in BiH's prisons.

This chapter explores the work of the international community in BiH through three examples of agencies working alongside the domestic authorities to address some of the challenges facing BiH's prison systems as described in chapter 7.

Alongside fines, custodial sentences are the dominant form of punishment in Bosnia and Herzegovina (BiH). Under the 2003 Criminal Code of BiH, which served as a model for subsequent revisions of codes in the entities and Brčko district (see chapter 6), offenders can be punished with either a fine or up to 20 years imprisonment (Art. 40) or, exceptionally, up to 45 years (Art. 42.2). Community based penalties can replace custodial sentences of below six months (Art. 43.1), yet while the code provides for community sanctions, the infrastructure to realise these is not in place, and so this and the following chapter will focus primarily on those prisons under the authority of the ministries of justice of the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS), and on tentative developments in the direction of penal provision under the state-level Ministry of Justice. Again the first chapter will highlight various challenges in the prisons sector which have accompanied transition, while the second will focus on international assistance and intervention. The two previous pairs of chapters, on police and courts in Bosnia and Herzegovina, were able to draw on a wide range of literature to locate those elements of the criminal justice field at the nexus of cross-cutting questions of state, democracy and legitimacy in the context of transition. Police, even in a reconfigured field of security governance, are seen as central to the state and their practices firmly linked to democracy. Courts were placed at the heart of the criminal justice field, legitimating those other elements of the field with routine recourse to the use of physical force, and providing a public space for the exploration of norms and values. The importance of these elements of the criminal justice field was reflected in the level of international attention they have received subsequent to the Dayton Peace Accords.

Punishment, and more specifically for the purposes of this chapter, imprisonment, come at the end of the chain, by which stage a number of important decisions have been taken earlier in the criminal justice process, ving the execution of the sentence to be carried out.

This book provides an analysis of processes of reform, reconstruction and restructuring in the criminal justice field in Bosnia and Herzegovina (BiH) in the years since it completed a violent secession from the Socialist Federal Republic of Yugoslavia (SFRY). The country is taken as an example of a transitional post-authoritarian society, having emerged from over forty years of single-party rule, as an example of a transitional post-conflict society, having come through nearly four years of brutal conflict between parties who continue to play a major role in the political life of the country; and, in the context of widespread change with the collapse of communist governments throughout Central and Eastern Europe, as a transitional economy, shifting from a more command oriented economy to a more liberalised market economy. These three dimensions of transition provide the background to a range of challenges faced in the criminal justice field and the subsequent governmental responses, including those of international governing bodies in BiH.

The lengthy process of the break-up of SFRY crystallised within months of the country's first multi-party elections when, in June 1991, Slovenia and Croatia declared independence. It continues, eighteen years on following the UN General Assembly's request for an advisory opinion from the International Court of Justice (ICJ) on the legality of the unilateral declaration of independence made by the Provisional Institutions of Self-Government of Kosovo (UNGA 2008; ICJ 2008). Disintegration has involved a series of conflicts, ranging from the short war between the Yugoslav People's Army (JNA) and Slovenian territorial defence units, to more complex and protracted conflicts such as those in Croatia and Bosnia and Herzegovina (BiH), between 1991 and 1995, involving the JNA, Croatian and Bosnian government forces, armies established by breakaway Serb entities in Croatia and BiH, and Croats in BiH, as well as other regional groups and irregular paramilitary units (see Malcolm 1996, chapters 15, 16 and epilogue). In Croatia, war ended in a decisive victory by government forces against the breakaway Republic of Serb Krajina. The conflicts in BiH ended formally but without definitive victory for any warring party on 14 December 1995, when representatives of three Yugoslav successor states gathered in Paris to sign the General Framework Agreement for Peace (GFAP).

Having explored the three main sectors of the criminal justice field in Bosnia and Herzegovina, and having examined a number of international interventions geared towards reform, reconstruction and restructuring within these sectors, it is now possible to revisit the four central questions defining the current research project:

• – What role does criminal justice reform play in a state-building exercise, in the particular post-conflict, post-socialist, and post-authoritarian context represented by Bosnia and Herzegovina?

• – To what extent do the demands of state-building projects shape criminal justice reform, and how does this differ across criminal justice sectors and how are these reforms seen to relate to one another in the context of a criminal justice system?

• – In a context which brings together a range of agencies with different backgrounds, priorities and working practices, how do different agencies approach criminal justice reforms within each sector, how do they relate to, and work with, relevant domestic political actors and institutions, and what obstacles do they meet in trying to implement reform programmes?

• – To what extent is the level of international intervention in BiH conducive to the ‘transfer’ of particular criminal justice policies and institutions or the ‘transplant’ of practices and models in criminal justice?

This final chapter will group the first two complementary questions under the heading of state-building, asking to what extent criminal justice plays a role in state-building and turning the question around to explore the impact of the demands of state-building upon criminal justice reform. Subsequently, the chapter builds on previous chapters which have drawn on a range of agencies including core multi-lateral civilian missions; other non-core multi-lateral bodies and bilateral aid agencies. The chapter examines how they seek to shape domestic policy given the range of different resources, powers and restrictions with which they operate in the general policy context of BiH and the particular criminal justice sectors in which they intervene. Within this, it is possible to examine the fourth question regarding the scope for policy transfer or legal transplants in a context of multi-national intervention in the criminal justice policy of a particular state.