Зборник радова "Противрјечја савременог права" Том I
Collection of papers " Contradictions of the Contemporary Law" Vol I
10th Scientific Conference on the occasion of the Day of the Faculty of Law. The conference was held on October 30, 2021. in Pale
Contributor(s): Stanka Stjepanović (Editor), Radomir V. Lukić (Editor), Dimitrije Ćeranić (Editor)
Subject(s): Law, Constitution, Jurisprudence, International Law, EU-Legislation
Published by: Правни факултет Универзитета у Источном Сарајеву
- Print-ISBN-13: 978-99938-57-65-5
- Page Count: 514
- Publication Year: 2022
- Language: English, Serbian
The Principle of Sovereignty and International Criminal Tribunals for the Former Yugoslavia and Rwanda
The Principle of Sovereignty and International Criminal Tribunals for the Former Yugoslavia and Rwanda
(The Principle of Sovereignty and International Criminal Tribunals for the Former Yugoslavia and Rwanda)
- Author(s):Milenko Kreća
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, International Law, Governance, Criminology
- Page Range:1-19
- No. of Pages:19
- Keywords:ICTY; ICTR; Security Council; Sovereignty;
- Summary/Abstract:This paper deals with relevant issues related to the establishment and operation of the ICTY and ICTR. The start in premise is the principle of sovereignty in international law and its external form, i.e. suprema potestas. In this sense, the principle implies Independence within the norms of international law, as a counterpoint to absolute sovereignty. As far as the establishment of the ICTY and ICTR is concerned, both were established according to the same pattern, resolutions of the UN Security Council.As the ratio of the establishment, the relevant resolutions state the punishment of the persons responsible for the committed crimes, on the one hand, and the establishment and maintenance of peace, on the other. Differences exist, however, in the jurisdiction of the tribunal ratione materie. According to Resolution 827 of 1993, the competence of the ICTY is limited to serious violations of international humanitarian law, and the competence of the ICTR includes the crime of genocide. Furthermore, the author examines the issue of the legal effect of the Law on Cooperation with the ICTY, which was adopted by the State Union of Serbia and Montenegro in 2002 and 2003. The author finds that the effects of the Law are limited in terms of the recognition of the Tribunal in foro interno, as a legal basis for the cooperation of competent internal authorities with the Tribunal, without implying the recognition of the Tribunal in foro externo. Based on the provisions of the relevant resolutions of the Security Council, the author finds that, in the light of the provisions of general international law, the establishment of the ICTY and ICTR is, by its very nature, an unprovided form of international intervention in the context of peace-building. The author pays special attention to the question of the authority of the Security Council to establish judicial bodies within the measures provided for in Articles 41 and 42 of the UN Charter, the establishment of the Tribunal and the principle of the rule of law, and the jurisdiction of the Tribunal and the principle of competence de la competence. In the second part, this paper deals with the relationship between principle of sovereignty and the rules of international criminal law applies+d by the Tribunals.
The European Future of B&H as a Mechanism of Integration
The European Future of B&H as a Mechanism of Integration
(The European Future of B&H as a Mechanism of Integration)
- Author(s):Spyridon Flogaitis
- Language:English
- Subject(s):Public Law, EU-Accession / EU-DEvelopment, EU-Legislation
- Page Range:20-24
- No. of Pages:5
- Keywords:European Union Law; Bosnia and Herzegovina; European integration;European Public Law Organization;
- Summary/Abstract:Bosnia and Herzegovina has evidenced difficulties of all kinds in state building. Its complex system of governance, product of its recent history, shall very soon have to dialogue with the European Union and get prepared to receive the European Union Law as superior to the national law and Constitution. In this road map of preparation, Bosnia and Herzegovina shall have to get more and more homogenized with the European Union countries, but also internally in the country itself. This way the country shall be better integrated at all levels and all fronts. The EPLO, as an institution which was conceived for facilitating European integration through education, research, training and institution building activities will be there to support that process which will bring the Western Balkans to the family of states to which they belong, historically, politically, culturally and geopolitically.
Resolving Contradictions in the Process of Interpretation of Treaties
Resolving Contradictions in the Process of Interpretation of Treaties
(Resolving Contradictions in the Process of Interpretation of Treaties)
- Author(s):Rodoljub Etinski
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:25-40
- No. of Pages:16
- Keywords:International treaties; Interpretation; Contradictions;
- Summary/Abstract:Various interpretative sources express the same being of a treaty - the intent of the parties. Supposing that the intent homogeneous, contradictions among the interpretative sources should not be expected. Due various reasons the contradictions are, however, occurring sometimes in the process of interpretation. Leading of the principle of harmony, which is based on homogeneity of design of the parties, judges will attempt to harmonize contradictory information arising from competitive interpretative sources, but when it is not possible, they will weigh significance of competitive sources and gave priority to some of them. A concept of proper interpretation, as established by the International Law Commission of the United Nations, informs that the rule, which has to be applied in the case, will determine significance of competitive interpretative sources. This paper was written to show that the mode by which a treaty replies to the disputed question may also determine significance of competitive interpretative sources.
Међународно право у ери пандемије корона вируса
Међународно право у ери пандемије корона вируса
(International Law in the Era of the Corona Virus Pandemic)
- Author(s):Bojan Milisavljević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:41-53
- No. of Pages:13
- Keywords:Corona virus; International law; Diplomatic activities;
- Summary/Abstract:The paper discusses the impact of the coronavirus pandemic on the relations between states and international organizations in the international community. It considers and analyzes the means of diplomatic communication in new, changed circumstances and its impact on the quality of international relations. The cooperation of the states in the fight against the corona virus pandemic was especially analyzed. The importance of the World Health Organization in the fight against the corona pandemic virus was pointed out. The paper reviews the work of the United Nations, as well as other bodies in the system of this organization in the changed circumstances caused by the corona virus pandemic. Special attention is paid to ensuring respect for human rights during the corona virus and the actions of the executive and judicial authorities on that occasion. A review is also given of the basic economic issues that have proven important in the era of closing the borders for the flow of people and goods. The author also analyzes the procedures conducted within some countries in order to assess the extent to which measures introduced due to the corona virus pandemic were in accordance with international and constitutional law.
The Right to Self-determination in International Law - Historical Perspectives
The Right to Self-determination in International Law - Historical Perspectives
(The Right to Self-determination in International Law - Historical Perspectives)
- Author(s):Zoran Jovanovski
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:54-71
- No. of Pages:18
- Keywords:International law; States; Structures;
- Summary/Abstract:The name of international law is derived from the Latin term jus gentium and it means the right of the nation or international law. International law also includes the term public international law or private international law. Public international law regulates relations, first of all between states, while private international law regulates the relation between persons with different citizenship in cases of dilemma in which in fact national law should be applied in a specific case, and thus its jurisdiction would be competent, etc. Universal international law actually applies to the entire international community, while regional international law applies only to states belonging to one region or area. International law has two structures, a vertical and horizontal. All states that are sovereign and independent represent the horizontal structure. This structure indicates that a given state is not subordinated to another state or an international organization, i.e. when a state must first agree to any restrictions. The vertical structure is slightly different, for example states can be merged to create certain international organizations that are capable of creating a binding effect on their members.
Припадници ЛГБТ заједнице у оквиру члана 11 Европске конвенције о заштити људских права
Припадници ЛГБТ заједнице у оквиру члана 11 Европске конвенције о заштити људских права
(Members of the LGBT Community Under Article 11 of the European Convention for the Protection of Human Rights)
- Author(s):Darko Dimovski
- Language:Serbian
- Subject(s):Gender Studies, Human Rights and Humanitarian Law
- Page Range:72-93
- No. of Pages:22
- Keywords:LGBT community; European Court of Human Rights; Convention; Article 11;
- Summary/Abstract:The problem faced by members of sexual minorities are numerous. The violation of rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms are particularly directed against members of LGBT community. A special area of violation of their rights refers to Article 11, where they are discriminated against in relation to members of the heterosexual majority. As Article 11 of the Convention protects the right to freedom of expression, due to restrictions on the length of the scientific article of the decision of the European Court of Human Rights in which the victims of a violation of Article 11 of the Convention were members of the LGBT community; the applicant attacked the rights of members of the LGBT community.
Посебна радноправна заштита инвалида и радника привремено спријечених за рад
Посебна радноправна заштита инвалида и радника привремено спријечених за рад
(Special Labor Protection for Disabled People and Temporarily Disabled Workers)
- Author(s):Radislav Lale
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Labour and Social Security Law
- Page Range:94-121
- No. of Pages:28
- Keywords:Labor law relationship; Protection of the disabled in employment relations; Working ability; Temporary incapacity for work;
- Summary/Abstract:Employed women, young workers and the disabled enjoy special protection at work. The says protection is provided for in the legal regulations of international and domestic labor law. This paper will systematically analyze the issue of special protection of the disabled, as persons with reduced ability to work, given that their ability to find appropriate employment and to maintain that employment is greatly reduced, compared to other persons. Namely, the reasons for their special labor protection consist in the need to be equal with others and in the realization of their socio-economic rights and freedoms at work and in connection with work. Also, special attention will be paid to the protection of sick workers i.e. workers who are temporarily incapable of work in terms of health insurance regulations.
Одговорност држава у међународном праву: Осврт на савремене изазове и недостатке
Одговорност држава у међународном праву: Осврт на савремене изазове и недостатке
(Responsibility of States in International Law: Overview of contemporary challenges and deficiencies)
- Author(s):Matej Savić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:122-148
- No. of Pages:27
- Keywords:Responsibility; State; International Legal Order; Legal order; Wrongful act; Sanction; International obligation; Legal personality;
- Summary/Abstract:Responsibility in law is a special legal institute which arises from the violation of someone else's right, i.e., a legal good that is protected by valid (domestic)state norms. The general legal principle implies that every illegal act entails responsibility under the law and duty of the perpetrator to correct (compensate) the damage caused. However, the situation in the International Legal Order is significantly different. Regarding its nature , constitutive elements, manner of application and validity of international legal norms, and subjects of International Law, International Legal Responsibility has a number of limitations, but also a much wider range of conditioning. The responsibility of states and other legal entities, especially in contemporary circumstances and processes, is one of the most important issues in field of International Law. Also, in this paper, special attention is paid to the limitations of international judicial institutions. but also to the shortcomings in the application and execution of sanctions in International Law, i.e. the lack of institutionalized sanctions in general. In this paper, the author primarily deals with aspects of state responsibility in International Law, and consequently issues related to the general definition of international responsibility of individuals and international organizations. Certainly, the paper deals with certain issues related to criminal responsibility, political, political-legal responsibility of states, as well as civil responsibility of states in International Law.
Противречности "Инцковог закона" - забрана негације или негација слободе
Противречности "Инцковог закона" - забрана негације или негација слободе
(Contradictions of "Inzko's Law"- Prohibition of Negation or Negation of Freedom)
- Author(s):Mihajlo A. Vučić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Nationalism Studies
- Page Range:149-164
- No. of Pages:16
- Keywords:Genocide; Denialism; Negationism; Bosnia and Herzegovina; Srebrenica; Freedom of expression;
- Summary/Abstract:The prohibition of negationism has become ever more present in contemporary legal systems, especially European ones. Bosnia and Herzegovina has recently followed suit with the adoption of the Criminal code amendment that prohibits negation of judicially established crimes that occurred during the civil war in this country, if the negations act is capable of inciting towards hatred or violence. In this article, the author presents a two-pronged critique of this legislative solution. The first one is based on the obligations of BiH towards Council of Europe's Convention on Human Rights and Fundamental Freedoms, which guarantees the freedom of expression for BiH citizens. The jurisprudence of the European Court of Human Rights restrictively interprets the exceptions to this guaranteed freedom. In the case of denial of historical crimes in other societies whose states are parties to the Convention, the Court was unwilling to side with the state in its wish to criminally punish the denial of these crimes. The Perinçek case is especially important for BiH situation, since it dealt with the genocide denialism by a historian and journalist who tried to prove the qualification of atrocities against Americans is untenable under international law and circumstances of the case. It would be interesting to see how the Court would react to a future case where the applicant would claim the breach of his freedom of expression due to criminal prosecution for denial of Srebrenica genocide. The second one is based on the author's previous research which shows that so-called memory laws, i.e. legal acts that tempt to exclusively interpret historical events, lead to further social instability in vulnerable societies - societies which have experienced civil wars in their past and have still not reached a common interpretation of these events that would be acceptable by all major social groups. Through the criminalization of denial of certain events from the traumatic and still unsettled history of BiH, the legislator has excluded a large portion of its society from the official debate over its common history and identity. Thus the law changes into an instrument of social control and pressures individuals to refrain from alternative interpretations of history, whatever their intentions may be.
Управноправни аспекти међународне заштите - азила
Управноправни аспекти међународне заштите - азила
(Administrative and Legal Aspects of International Protection - Asylums)
- Author(s):Sanja Golijanin
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, International Law, Migration Studies
- Page Range:165-176
- No. of Pages:12
- Keywords:Foreigner; Asylum; The procedure for the request for an asylum; Refugee;
- Summary/Abstract:This paper analyzes the Law on Asylum part which includes administrative regulation of international protection (asylum), drawing attention to the jurisdictions, asylum procedures, as well as the rights accountabilities of asylum seekers and individuals whose refugee or subsidiary protection status was approved. Certain conclusions can be drawn from the results of the overall analyzes. In principle, one can state that there exists a relatively good legislative framework in the aspect of asylum, however , in practice, no desired results are achieved. The legal solutions are highly coordinated with the international standards and the legal assets of the EU in the domain of asylums. There is a growing need for additional convergence, mainly in the aspects of defining asylum seekers and refugees, along with the access to rights and legal support. It is obviously mandatory to remove certain legal loopholes and legislator vagueness, all of which are indicated in this paper. Yet, it seems that the fundamental reason of the asylum system's dysfunctionality in Bosnia and Herzegovina lies within the lack of material and other capacities of the institutions in Bosnia and Herzegovina, which are predominantly responsible for the enforcement and the implementation of the law.
States' Response to the COVID-19 Health Crisis - Emergency Powers vs Human Rights
States' Response to the COVID-19 Health Crisis - Emergency Powers vs Human Rights
(States' Response to the COVID-19 Health Crisis - Emergency Powers vs Human Rights)
- Author(s):Sanja Kreštalica
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, Governance, Health and medicine and law
- Page Range:177-188
- No. of Pages:12
- Keywords:Human rights; Emergency powers; Derogation; ICCPR; ECHR; ACHR;
- Summary/Abstract:The sudden outbreak of the global pandemic caused by the spread of the new coronavirus confronted the international community with many challenges. The current pandemic has triggered health, economic and social crisis, that pushed a great number of states into the grey zone when it comes to human rights protection. Dozens of state parties to the three main human rights treaties, namely the ICCPR, the ECHR, and ACHR, have exercised their emergency powers by calling for derogation of one or more human rights protected by the above mentioned treaties. Declaration of the state of emergency, followed up by the notification to the relevant bodies of the UN, or regional organizations, even though completely legal, opened the door for possible abuses of the situation for political purposes. States closed their borders, banned religion, movement, and other freedoms, proclaimed new legislation, all to combat the global threat coming from the invisible enemy.This paper aims to analyze the states' response to the COVID-19 health crisis, in the context of the derogation from their obligation to secure rights and freedoms outlined in the human rights treaties. With the outbreak of the global pandemic, the international community changed its face overnight. By questioning the behavior of states in time of the pandemic, the author suggests that there has been a change of the paradigm so that the individual human rights protection does not stand equal with the need of a wider community or a state as such. Therefore, the author concludes that the postmodernist ideas of the unquestionable subjectivity of individuals faced the wall of state-centrism.
Посебан управни поступак избора у научно-наставна, умјетничко-наставна звања на универзитетима у Републици Српској
Посебан управни поступак избора у научно-наставна, умјетничко-наставна звања на универзитетима у Републици Српској
(The Procedure of Election of University Teachers in Republika Srpska)
- Author(s):Jelena Starčević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Higher Education
- Page Range:189-217
- No. of Pages:29
- Keywords:Administrative procedure; Administrative act; Res administrativa; Special administrative procedure; Higher education institution; University; Faculty; Academy;Appointment procedure;Teachers;Associates
- Summary/Abstract:The procedure of awarding scientific-teaching and artistic-teaching titles to university teachers is one of the most complex administrative procedures in legislation of Republika Srpska. The complexity of this procedure results from several facts:in the first place, the multitude of legal acts governing this procedure, given that it is regulated by acts of the universities, of which there are currently nine, while the Law on Higher Education only provides for the minimum conditions for election but not the procedure in detail. Then comes diversity, i.e. heterogeneity of regulations: the fact that the regulations of the universities are not harmonized with each other and there are significant differences between them hinders significantly the mobility of teachers and associates from one university to another. Finally, the complexity of large number of independent and collegial bodies participating in this procedure. Harmonization of regulations concerning conditions for awarding titles was conducted (or at least an effort was made to do so) by the Law adopted in 2020, which stipulated minimum conditions for awarding titles and set the grounds for adoption of one more general acts - Rule book on criteria for awarding titles. However, the work on this act has not been completed yet because there is a disagreement in the academic community regarding some important questions. The paper, through a comparative review , analyzes systematically the procedure for awarding titles, stages in the procedure , legal inconsistencies, legal gaps and gives proposals to promote the situation. The paper also takes note of the relationship between general and specific laws in this area and indicates the importance of respecting general legal principles of administrative procedure when deciding on this issue.
Прерогативи националног и европског конституционализма на примеру сукоба Пољске и Европске уније у области владавине права
Прерогативи националног и европског конституционализма на примеру сукоба Пољске и Европске уније у области владавине права
(Prerogatives of National European Constitutionalism on the Example of the Conflict Between Poland and European Union Regarding the Rule of Law)
- Author(s):Boris Tučić, Radmila Dragišić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation
- Page Range:218-235
- No. of Pages:18
- Keywords:Poland; European Union; Constitutionalism; Rule of law; Supremacy principle; Independence of judiciary;
- Summary/Abstract:Since its beginning in 2016 until now, the conflict between Brussels and Poland regarding the state of the rule of law in this member state has developed into one of the most threatening crises of the legal order of the EU, as well as of the fundamental values the Union is based on. Although its strong political dimension cannot be neglected, in its essence, the conflict is of constitutional nature, questioning some basic principles of the EU legal order, primarily the supremacy principle and the principle of uniform and efficient implementation of the Union's law in its member state. EU institutions have been trying to force the Warsaw to fulfill its obligations stemming from the EU membership using different political, financial and judicial instruments, but to no avail. The peak of the conflict was reached when the Polish Constitutional Tribunal interfered in order to "protect" the constitution and the sovereignty of the Polish state. By its decision from the 7th of October 2021, in which some of the crucial articles of the EU Lisbon Treaty were declared unconstitutional and, in the way, illegal and unenforceable in Polish legal system, chances for the resolution of conflict by political means are significantly diminished. The analysis of the Polish laws in the field of the rule of law, especially ones determining independence of its judicial system and the position of judges of regular courts. Supreme court, or even Constitutional tribunal itself, clearly show strong political influence on legal sphere in general as well as deep discrepancies not only with the EU standards and prerogatives, but also prerogatives of other international political and legal authorities, such as the Council of Europe or the OSCE. Under such circumstances, the argumentation most frequently heard, namely, that the organization and functioning of judicial systems are exclusive competence of EU member states and not functioning of judicial systems are exclusive competence of EU member states and not the EU itself, so Polish laws in the field of rule of law must not be questioned by the EU institutions, can not be accepted for several reasons. First of all, Poland or any other state cannot be member of the EU partially, meaning it supports general prerogatives and standards of the EU law only regarding the issues falling under the EU competences, while in other issues of national competence , it is not the case. Secondly, Polish court +s are not only national courts, but "European" courts as well, so one of their main roles is to protect and secure the implementation of the Union law on a daily basis. Keeping this in mind, the legitimacy of the Union's institutions to question the state of the rule of law in Poland or any other member state is indisputable. Furthermore, insisting on the Constitution as the supreme legal act in Poland and "hiding" behind it, cannot be accepted as a rational argument, especially since no single article of the Polish Constitution proclaims or supports legal solutions in the field of rule of law that are currently in force in Poland. On the contrary, The Constitutional Tribunal has been under strong political influences and primarily protects the ruling political agenda. Hypothetically, if it had a chance to formally and objectively review Polish legal solutions in the field of rule of law, most of them would be declared unconstitutional. In light of this, it could be concluded that we are witnessing the manipulation of conflict between national and supranational i.e. European constitutional prerogatives rather than the real constitutional conflict itself. On the other hand, this does not preclude the urgent need to resolve some of the crucial issues of the European integration, including general relationship between the national and "European" law, as well as the nature and scope of some basic principles on which the EU legal order is based. Only in that way the project of European integration and cooperation can be positioned on the right trck again.
Utjecaj pandemije korona virusa (COVID-19) na razvoj tendencija u službeničkom pravu
Utjecaj pandemije korona virusa (COVID-19) na razvoj tendencija u službeničkom pravu
(The Influence of COVID-19 on Development of the Tendencies in Civil Service Legislation)
- Author(s):Emir Mehmedović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Public Administration, Public Law, Health and medicine and law
- Page Range:236-253
- No. of Pages:18
- Keywords:Civil servant; COVID-19; "Normalization" of Civil Service legislation; Flexibility; Hybrid work;
- Summary/Abstract:Civil Service law is a branch of law that is constantly evolving, mainly following the development of Public Administration. In the development of Civil Service legislation, some tendencies, as the directions in which certain phenomenon move, are noticeable. The subject of this paper are two tendencies in Civil Service legislation : the tendency in "normalization" and the tendency of introducing new forms and methods of work. Both of these tendencies have existed in the period before the emergence of the coronavirus pandemic (COVID-19), and they still exist today after more then two years of experience with the coronavirus. However, the changes caused by the pandemic have had a significant impact on their development. The tendency of "normalization" has led to deregulation, or more often, significantly< less regulation of status, rights and obligations of civil servants and has promoted the regulation of the civil service system according to the rules of the general regime of labor relations. This tendency has arose and developed under the influences of New Public Management and Good Governance. In the context of second tendency, the accelerated development of information and communication technologies has opened up new possibilities for the method, place and time of performing activities of the civil servants. The emergence of the pandemic, as well as its duration left its mark on these tends. Under the influence of the pandemic , there is a qualitative change in these tendencies in the sense that the tendency of "normalization" loses its attractiveness compared to the pre-pandemic period, while the tendency of introducing new forms and methods of work is much stronger.
Примена теста интегритета у контроли корупције
Примена теста интегритета у контроли корупције
(Use of Integrity Test in Corruption Control)
- Author(s):Bogdan Pušić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Corruption - Transparency - Anti-Corruption
- Page Range:254-266
- No. of Pages:13
- Keywords:Control of corruption; Legality; Integrity test; Internal control; Police;
- Summary/Abstract:Corruption poses a negation of professional integrity. Personal integrity and moral values constitute the basis on which professional integrity is built, along with consistency in respecting laws and occupational standards in performing professional jobs. The subject of the paper is the analysis of the integrity tests and the manner of their implementation., i.e. implementation problems. The integrity test is an important tool for combating corruption and is the most widely used tool in control of police corruption worldwide. The first part of the paper shall be focused on the analysis of the general characteristics of the integrity tests, their types, enforcement agencies, as well as the manner of their use. The Police Law of the Republic of Serbia, within the subtitle "preventive activities", provides for the use of the integrity tests. Within the Ministry of the Interior, the integrity testing is conducted by the Internal Control Sector. Integrity tests determine whether the tested civil servant, being put in a tempting situation, behaves in accordance with laws and professional ethics. The use of integrity tests in the prevention of corruption also raises a number of ethical and legal issues that need to be answered. On the one hand, there is the issue of endangering one's dignity, provocation and incitement to illegal behavior, and on the other hand, the powers of a state authority to use it as a necessary instrument for combating corruption. The second part of the paper presents the data pertaining to the use of integrity testing by the Internal Control Sector of the Ministry of the Interior of the Republic of Serbia. Finally, the paper is concluded with the author's position on the necessity of using integrity tests in the control of police corruption.
Колективни уговори као извор права
Колективни уговори као извор права
(Collective Agreement as a Source of Law)
- Author(s):Jovana Misailović, Iva Tošić
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Sociology of Politics, Sociology of Law
- Page Range:267-280
- No. of Pages:14
- Keywords:Collective agreement; Source of labour law; Collective bargaining; Employment contract;
- Summary/Abstract:Collective agreement is undoubtedly one of the most important institutes in the field of labor law. The role that the collective agreement has, is primarily reflected in the possibility for social partners to point out directly the problems they face on the labor market and to solve them by concluding collective agreement. Therefore, the importance of the collective agreement as a source of law should be viewed primarily through the opportunity to reconcile demands and changes at the labor market (depending on the level at which collective agreements are concluded) in the most efficient way and to define more specifically rights established by law, which are further completed completely individualized through an individual employment contract. In the paper, the place of the collective agreement in the domestic legal system is analyzed as well as the hierarchical relationship between the law, collective agreement and individual employment contract and finally - relationship between collective agreements. The authors try to summarize the importance of the collective agreement as a source of law in the domestic legal system, both for the social partners who participate in their conclusion and for all workers whom the collective agreement applies to. Accordingly, the first part of the paper is devoted to a brief historical analysis of the emergence and the origin of collective agreements, while the second part of the paper deals with the place and importance of the collective agreement in the domestic legal system.
Противрјечја права у доба короне: Прилог истраживању новог тоталитаризма
Противрјечја права у доба короне: Прилог истраживању новог тоталитаризма
(Controversies of Law in the Time of Corona: Contributions to research of new totalitarianism)
- Author(s):Jovica Trkulja
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Governance, Health and medicine and law
- Page Range:283-314
- No. of Pages:32
- Keywords:Pandemic of Covid-19; Structural crisis; New normal; The Great Reset; New totalitarianism; Crisis of law; Alienation;
- Summary/Abstract:COVID 19 pandemic spread to 185 out of 193 o the United Nations member states (95,8%). It posed challenge to customs, laws and norms which connect people, ensure social cohesion and facilitate functioning of human community (from family, friends, colleagues to nation and state). We are witnessing break in these bonds, destruction of human life, collapse of everyday life and loss of meaning in one's existence. Underlying motive of the dominant world elites is to preserve status quo and to save Western social model which is faces structural crisis. The real goal of the "strategy of of battle against pandemic" and purportedly salvage mechanisms of "self-isolation", "social distancing" and "lockdown" are not health and well-being of people but: 1) forced separation and existential seclusion, 2) production and dissemination of fear, 3) alienation of an individual, 4) total control of subjects, 5) digitalization of all means of communication and 6)declaring permanent state of emergency. All these goals are summed in the strategy of so called new normal which is developing in the context of reevaluation of previously dominant principles (the Great Reset) with the aim to solve global capital crisis. Corona -19 and similar pandemics have proven to be: firstly, effective means of establishing domination of order in the form of attacking personality and freedom of individual both nationally and globally and secondly, an important strategy of new totalitarianism - the bridge between authoritarianism which restricts freedom and totalitarianism which abolishes it. It is the shortest and most efficient rout to global totalitarianism - a society of degrading subordination, slave-like exploitation and domination. However it is too early to draw definitive scientific conclusions, as the pandemic is still ongoing.
Противрјечност стандарда конституционализма и конституционалне демократије и постојања и надлежности институције Високог представника у Босни и Херцеговини
Противрјечност стандарда конституционализма и конституционалне демократије и постојања и надлежности институције Високог представника у Босни и Херцеговини
(Contradictions of the Standard of Constitutionalism and Constitutional Democracy and Jurisdiction of Institution of High Representative in Bosnia and Herzegovina)
- Author(s):Mile Dmičić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:315-351
- No. of Pages:37
- Keywords:Constitutionalization and constitutional democracy;Dayton resolution;High representative;State and entities;Constitutional changes;Constitutional court of B&H;Bonn powers;EU integration;European court
- Summary/Abstract:The General Framework Agreement for Peace in Bosnia and Herzegovina (hereinafter Dayton Peace Agreement) with 11 Annexes is one of the most significant international agreements. Constitutionalization gave Bosnia and Herzegovina qualities of complex state sui generis in many respects. In violation of legacy and standards of constitutionalism and constitutional democracy, High representative, by passing decree not pursuant to Annex 4 but to Annex 10 of B&H Constitution, amended entity constitutions, passed new and amended existing laws, exerted influence on parliamentary, executive and judicial authorities, removed form office civil servants and members of political and public life, decided on subject-matter jurisdiction and territorial jurisdiction of courts, established new institutions in B&H etc. In the context of disagreements with the actions of the eight High representative, such situation only strengthened internal division and enhanced dissolution processes, especially in light of efforts to centralize and unify the state and favor one - the largest in number ethnic group, all under the pretext of creating functional state. Thereby, High representative and International community committed an undemocratic act incompatible with the time we live by raising the issue of feasibility of resolutions achieved by Dayton Agreement and the need to end the mandate of High representative in B&H, which jeopardize the process of constitutionalization and EU integrations.
Evropski identitet - kontroverzije i refleksije
Evropski identitet - kontroverzije i refleksije
(European Identity - Controversies and Reflections)
- Author(s):Mirjana Nadaždin Defterdarević
- Language:Serbian
- Subject(s):Politics / Political Sciences, Law, Constitution, Jurisprudence, EU-Accession / EU-DEvelopment, Politics and Identity, Identity of Collectives
- Page Range:352-370
- No. of Pages:19
- Keywords:European Union; Identity; Multiculturalism; Human rights;
- Summary/Abstract:The author of the article examines the question of European identity as a newly created identity, with particular attention to the foundations which the collective European identity should build to serve its primarily task-the loyalty of EU citizens, In that sense, the creation of the European identity coincides with some critical Questions from the legal-political discourse within which it seeks affirmation and legislation.The Research starts from the assumption that in the EU, as a political entity sui generis, in the best tradition of European citizenship, by creating European identity, democracy has transformed from the political from that legitimizes the powers and sovereignty of the national state into a political form that legitimizes human rights, whereas the national identity in the context of the inclusive European identity acquires the function of double legitimacy- cultural and political. By analyzing the content and by using teleological method, the research focuses in particular on the aspect of determination and variability of the content of the concept of identity, the justification for creating a European identity, its political recognition, its connection with human rights and the integrative role that multiculturalism plays in their implementation.
On the Methods of Selection of Judges of Constitutional Courts
On the Methods of Selection of Judges of Constitutional Courts
(On the Methods of Selection of Judges of Constitutional Courts)
- Author(s):Goran Marković
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:371-395
- No. of Pages:25
- Keywords:Constitutional court; Judges; Parliament; Head of state; Election and appointment; Independent body;
- Summary/Abstract:The purpose of this work is to analyze different methods of selection of judges of constitutional courts: election of parliament, nomination by head of state, and mixed method which means that three institutions elect and appoint a third of judges each. Each method of selection is only a part of a wider system of selection of judges, since the latter also includes issues such as: term of office, possibility of re-election, professional qualifications, and procedure for election/appointment. However, due to methodological reasons, the author decided to explore only one of elements of these systems. Using legal and comparative methods as well as general theoretical approach to basic constitutional principles, such as popular sovereignty, democratic legitimacy, accountability and merit, the author analyzes both positive and negative aspects of all three methods of selection. He also advocates one of these - election of judges by parliament on a proposal of an independent body, and offers his arguments in favor of this method.
The Forms of Realizing Direct Democracy and the Contradictions of Contemporary Law : Case of Serbia
The Forms of Realizing Direct Democracy and the Contradictions of Contemporary Law : Case of Serbia
(The Forms of Realizing Direct Democracy and the Contradictions of Contemporary Law : Case of Serbia)
- Author(s):Maja Nastić
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Governance, Electoral systems
- Page Range:396-406
- No. of Pages:11
- Keywords:Direct democracy; Referendum; People's initiative; Constitution;
- Summary/Abstract:The article discusses the forms of realization of direct democracy in the legal system of Serbia and the contradictions observed. The starting point of the analysis is the constitutional framework, in which the importance of the people's initiative and referendum is emphasized. Then, the legal solutions contained in the recently adopted Law of Referendum and People's initiative are analyzed in more detail. It is noted that in Serbia, a serious deficiency in the form of anachronistic legislation passed during the validity of the previous Constitution of Serbia (1990), was eliminated by the adoption of the new law in November 2021. This law undoubtedly contains more improvements compared to the "old" law, but it does not guarantee that citizens can fully exercise the people's initiative. The recent constitutional referendum has shown that this institution has not been given the importance it deserves. It was a second-class event whose importance was not sufficiently recognized by the citizens, which was not an obstacle to amending the constitution.
Противрјечја савременог правног регулисања нетериторијалне мањинске аутономије
Противрјечја савременог правног регулисања нетериторијалне мањинске аутономије
(Contradictions of Contemporary Legal Regulation of Non-territorial Minority Autonomy)
- Author(s):Vladimir Đurić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Governance, Ethnic Minorities Studies
- Page Range:407-425
- No. of Pages:19
- Keywords:National minorities; Non-territorial autonomy; Minority rights;
- Summary/Abstract:Non-territorial minority is one of the national minorities' protection models. In many countries, non-territorial minority autonomy is provided for by the constitutional provisions and is often defined as one of the minority rights. This paper analyses the legal nature of the arrangements through which such autonomy is implemented and points out the contradictions of its contemporary legal regulation. Contradictions of contemporary legal regulation of non-territorial minority autonomy are embodied in a number of issues related to such autonomy, starting from the issue of existence and exercise of collective rights and ways in which its arrangements should be formed, to dilemmas regarding the nature of such arrangements and its location within the public administration system, to the issues of supervision over their work and legal protection which is available to them.
Grad Mostar i Bosna i Hercegovina : ustavno-pravna kritika nedemokratskog stanja
Grad Mostar i Bosna i Hercegovina : ustavno-pravna kritika nedemokratskog stanja
(City of Mostar and Bosnia and Herzegovina: Constitutional Criticism of an Undemocratic State)
- Author(s):Dženeta Omerdić, Zlatan Begić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Governance
- Page Range:426-441
- No. of Pages:16
- Keywords:Right to freeelections; Discrimination; Rule of law; Constitutional Court of Bosnia and Herzegovina; European Court of Human Rights; Legal gap;
- Summary/Abstract:Judgement of the European Court of Human Rights (ECtHR) an the case of Baralija v. Bosnia and Herzegovina holds several important points. Under the surface, different layers are visible, pointing to the deficiencies in the general state of rule of law in Bosnia and Herzegovina. The core issue, as identified by the ECtHR is one of non-compliance with the final and binding decision adopted by the Constitutional Court of Bosnia and Herzegovina, resulting in a legal void, which has left residents of Mostar without the possibility to fulfill their rights to free, democratic and periodical elections. However the most interesting part of the EctHR's reasoning might be the view which the EctHR holds in regards to the position and the power of the Constitutional Court of Bosnia and Herzegovina to step in and play an active role, giving solutions, albeit temporary, in form of "interim arrangements". This article offers an overview of the background of "Mostar case", as well as the ECtHR's reasoning and purported position of Constitutional Court of Bosnia and Herzegovina.
Контролна тела као четврта грана власти
Контролна тела као четврта грана власти
(Control Bodies as a Fourth Branch of Government)
- Author(s):Mijodrag Radojević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Governance, Politics and law
- Page Range:442-462
- No. of Pages:21
- Keywords:State authorities; Judiciary; INdependent control bodies; Regulatory agency; Ombudsman; Government rights; Legitimacy; Responsible government; Constitutional democracy;
- Summary/Abstract:In this paper, the intention is to reexamine the concept of the fourth branch, together with the independent control bodies and criticism of the separation of powers in modern theory. The author explains the debate about the Fourth branch at the theoretical level and the normative-institutional level. Separation of powers is the most important constitutional and political theory. According to this theory, the right organization of government guarantees the freedom. In constitutional law, separation of powers is the criteria for the constitutionalization of the highest state authority and the classification of political systems. Combined with other ideas and theories, it is a necessary condition for the rule of law and democracy. That is why it has an important place in a liberal state and is applied in most legal systems. The separation of powers, which until the middle of 20th century had the status of a myth, is strongly contested in modern theory. Criticism has identified its shortcomings. Classical theory is outmoded and not adapted to reality., that is, it is unable to fulfill its role in balancing the branches of state power and protecting human rights. Meanwhile, from the second half of the 18th century, a number of institutions and constitutional structures emerged that were not covered by the traditional separation of powers. The mode of the functioning of the executive power has changed with the emergence of a professional and depoliticized bureaucracy. Independent agencies exercise regulatory and control powers, tasks distinct from the legislative, executive and judicial functions. The reconstruction of the division of power means that instead of of a trichotomous scheme of government, we have a fourth branch of state government. The origin of this idea is in the United States of America. The development of the Administrative state and public agencies has fueled the debate about the "new" separation of powers and independent institutions. In other parts of the world, this debate has not had such intensity. The concept of the fourth branch did not arouse much interest in Europe, a opposed to some African countries and in some Latin American countries which came as result of changes in public policy. Independent monitoring institutions were given a special constitutional role under the title "Institutions for Protecting Constitutional Democracy" in the Constitution of the Republic of South Africa of 1996. The main function of independent control institutions is not in management or governance, but in investigative and and regulatory functions, calling other pubic authorities to account. The author concludes that the criticism of the separation of powers is closely related to the idea of the fourth branch and independent institutions. The concept of the fourth branch has the prospect of representing a rounded systematic theory of the organization of government in the future if it overcomes its limitations.
Originalism, Textualism and Living Law in the Case Law of the Constitutional Court of Romania
Originalism, Textualism and Living Law in the Case Law of the Constitutional Court of Romania
(Originalism, Textualism and Living Law in the Case Law of the Constitutional Court of Romania)
- Author(s):Benke Károly
- Language:English
- Subject(s):Constitutional Law, Court case
- Page Range:463-478
- No. of Pages:16
- Keywords:Constitution; Methods of interpretation; Originalism; Textualism; Living law; Constitutional Court; Constitutional review of laws; Legal dispute of constitutional nature;
- Summary/Abstract:The legal norm is a rule of conduct, established by or recognized by the public power, the application of which is ensured by the legal conscience and, if it necessary, by the coercive force of that power, usually by the state. It is presumed to be in line with the Constitution,having attached a so-called presumption of constitutionality. The constitutional courts assess the constitutionality of the legal norms in relation to a standard of reference, namely the Constitution, the fundamental act of the state. The result of this review consists in upholding or reversing the presumption of constitutionality of the legal norm.The Constitution is not meant to be an abstract instrument, but every constitutional concept has to be defined, structured and applied in the national framework. In order to guarantee the supremacy of the Constitution, any constitutional court has the uppermost task to determine the meaning of the constitutional norms and to establish its relation with the international agreements ratified by the state. In this endeavoring mission, the methods of interpretation of the Constitution play an essential role in constitutional adjudication. These methods can either valorize the original or actual meaning of the constitutional norm, or take into account a set of political, economic, social or cultural developments. The option for a certain method of interpretation or for a mix between two or more such methods determine a chain reaction in the legal life of the state. Such an option is a question of legal culture and cannot be assessed as an inconsistency of the constitutional court.In its position of official interpreter of the Constitution, the constitutional court has a wide margin of discretion in choosing a method or another. Its choice is not random and depends on various elements that have to be identified to the utmost extent. If there are no serious reasons, a court cannot give up to a certain method of interpretation of a specific constitutional concept, because the interpretative method to which it adheres can affect either the presumption of constitutionality of the norm under review or the result of a legal dispute of constitutional nature, in other words the legal certainty.Therefore, the aim of this paper is to debate and analyze the case law of the Constitutional Court of Romania in the light of the interpretative methods in use. As a conclusion, it emphasizes that all the aforementioned methods of interpretation can be found in the court’s decisions and that in leading cases the living law method is frequently used in interpreting the Constitution of Romania.
Преписивање догме о тродеоби функција државне власти - уставно судсво као четврта функција државне власти
Преписивање догме о тродеоби функција државне власти - уставно судсво као четврта функција државне власти
(Questioning the Tripartite Separation of Powers - Constitutional Courts as Fourth Branch of Government)
- Author(s):Brano Hadži Stević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Governance
- Page Range:479-497
- No. of Pages:19
- Keywords:Branches of government; Judicial review; Constitutional court; Legal and political reasoning;
- Summary/Abstract:Traditionally, the functions (branches) of stet power are divided into legislative, executive and judicial functions. However, this division is sometimes considered to be too narrow and revision is necessary, but authors disagree on which of the tree traditional functions ought to be challenged. In this paper we will focus on the analysis of the position of the constitutional courts. Since the judicial review as carried out by the constitutional courts, their role has evolved significantly - from Kelsen's claim about constitutional court as a negative legislator to the view that the constitutional court is much more than that. The main hypothesis put forward in this paper is that the constitutional court represents a separate function of the government. In an effort to analyze the position of the constitutional courts, the author makes the introductory remarks regarding the functions of the government an determines them in a formal, material, and organic sense, and the remaining part of the work is devoted to the constitutional court's judicial review. Similarities and the differences between constitutional courts are legislators and regular courts will be analyzed, as well as the legal and political reasoning of constitutional courts, in an effort to point out the necessity of revising the position of tripartite division of powers.
Vladavina prava između zakona i prakse: implikacije nepovjerenja građana u crnogorsko pravosuđe
Vladavina prava između zakona i prakse: implikacije nepovjerenja građana u crnogorsko pravosuđe
(Rule of Law Between Law and Practice: Implications of Citizens' Distrust in Montenegrin Judiciary)
- Author(s):Milica Anđelić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Corruption - Transparency - Anti-Corruption
- Page Range:498-514
- No. of Pages:17
- Keywords:Rule of law; Distrust of the justice system; Corruption; Democratic achievement; Conflict of interests;
- Summary/Abstract:In this paper the author deals with the challenges of conflict of interest and corruption for the realization of the ideals of the rule of law, as well as for exploring he implications of the presence of corruption for the efficiency of the entire judicial systems. Although, countries such as Montenegro are relatively successful in strengthening their technical and organizational capacities in the field of justice, they face a number of challenges. Namely, the exerted political pressures as well as the lack of integrity are the reason why judiciary often does not attain its constitutional and legal competences. The state and the judiciary itself face the problem of eroded trusts of citizens in the system. Paradoxically, although laws which are harmonized with the EU acquis are being adopted, such efforts have been undermined by the problem of corruption, which is affecting the growing distrust of citizens. The paper is aim to show that the corruption does not only affect the rule of law, but also democracy and human rights in general, contributes to the threat to justice and the realization of social justice. In such conditions, with the growing distrust of citizens in the judiciary, corruption is indirectly encouraged and citizens take an attitude of apathy towards injustice.
