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Collection of papers "Law Between Creation and Interpretation" Vol I Cover Image

Зборник радова"Право између стварања и тумачења" Том I
Collection of papers "Law Between Creation and Interpretation" Vol I

Contributor(s): Dimitrije Ćeranić (Editor), Svjetlana Ivanović (Editor), Radislav Lale (Editor), Samir Aličić (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву

  • Print-ISBN-13: 978-99938-57-77-8
  • Page Count: 574
  • Publication Year: 2023
  • Language: English, Russian, Serbian
"Self-contained Regimes"- Legal Reality or Not?

"Self-contained Regimes"- Legal Reality or Not?
("Self-contained regimes"- Legal Reality or Not?)

  • Author(s):Milenko Kreća
  • Language:English
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:1-18
  • No. of Pages:18
  • Summary/Abstract:Self-contained regimes being understood as completely autonomous legal structures from general international law, undoubtedly, are a form of fragmentation of general international law. There exist a number of different, moreover a conflicting views on the nature and effects of general international law, due to the fact there is no accepted definition of fragmentation, but it is, as a rule, determined indirectly through its effects, positive or negative, as regards general international law.
Pandemic and Reconsideration of the Role of State

Pandemic and Reconsideration of the Role of State
(Pandemic and Reconsideration of the Role of State)

  • Author(s):Spyridon Flogaitis
  • Language:English
  • Subject(s):Law, Constitution, Jurisprudence, Health and medicine and law
  • Page Range:19-19
  • No. of Pages:1
  • Summary/Abstract:The pandemic had very important consequences in the field of public law and the role of public powers worldwide. In the last three decades, we lived the triumph of the ideas about small state, abstentionist state, public powers which do not spend more resources that they dispose of no matter what. The pandemic proved that the State exists because it is needed, to guarantee the good functioning of public services and among them those of public health par excellence. For a period of three years, we have evidenced the omnipresence of the State and the public powers, struggling to fight the pandemic, to keep the public services working, to maintain up to a certain level the income of those who were in confinement, to preserve a minimum of functioning of the economy. The State is back and needed.
Животна средина и кривичноправни инструменти заштите (норма и пракса у Републици Србији)

Животна средина и кривичноправни инструменти заштите (норма и пракса у Републици Србији)
(Environment and Criminal Protection Instruments (norm and practice in the Republic of Serbia))

  • Author(s):Stanko Bejatović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Environmental interactions
  • Page Range:20-24
  • No. of Pages:5
  • Keywords:Environment; Criminal law; Criminal acts; Ultima ratio; Penal policy; Consciousness; Prevention; Efficiency; Criminal sanction; Conditional sentence; Fine; Legal entity; Environmental crime;
Влияние тенденции увеличеня юридических норм на правовой нигилизм и психоэмоциональное состояние людей

Влияние тенденции увеличеня юридических норм на правовой нигилизм и психоэмоциональное состояние людей
(The Influence of the Trend of Increasing Legal Norms on Legal Nihilism and the Psycho-emotional State of People)

  • Author(s):Elena Gennadievna Bagreeva
  • Language:Russian
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:24-25
  • No. of Pages:2
All That Glitters is not Gold - an Empirical Review of Article 17 of the European Union's Copyright in the Digital Market Directive

All That Glitters is not Gold - an Empirical Review of Article 17 of the European Union's Copyright in the Digital Market Directive
(All That Glitters is not Gold - an Empirical Review of Article 17 of the European Union's Copyright in the Digital Market Directive)

  • Author(s):Péter Mezei
  • Language:English
  • Subject(s):Law, Constitution, Jurisprudence, EU-Legislation
  • Page Range:26-27
  • No. of Pages:2
  • Summary/Abstract:The European Union's (EU) copyright liability regime for the use of subject matters in the online environment has been in motion for two decades. Based on the EU directives of the Millennium, the Court of Justice of the European Union has developed platforms' direct liability for certain end-user activities. This, coupled with the growing streaming ecosystem prompted the EU to introduce the Copyright in the Digital Single Market (CDSM) Directive in 2019. Article 17 of it obliges online content-sharing service providers (OCSSPs; practically hosting platforms) to authorize end-user uploads, and subjects them to liability in the lack of authorization or the prompt removal of illegal content. Article 17 is the cornerstone of the EU's digital copyright reform, but its practical effectiveness is far from certain.
Informal Modification and Judicial Interpretation of a Treaty

Informal Modification and Judicial Interpretation of a Treaty
(Informal Modification and Judicial Interpretation of a Treaty)

  • Author(s):Rodoljub Etinski
  • Language:English
  • Subject(s):Law, Constitution, Jurisprudence, International Law
  • Page Range:31-49
  • No. of Pages:19
  • Keywords:International treaties; Interpretation; Informal modification;
  • Summary/Abstract:The relationship between informal modification of a treaty and its judicial interpretation becomes relevant in the case when practice in the application of a treaty reflects the informal agreement of all or majority of the parties on the meaning of a treaty and when this meaning goes beyond a meaning that can be established under Articles 31-33 of the VCLT. If such an informal agreement can be qualified as an informal modification of the treaty, recognition of the informal modification would save international courts and tribunals from uncertain interpretations and preserve the integrity of judicial function.
Space Wars and International Law

Space Wars and International Law
(Space Wars and International Law)

  • Author(s):Boris Krivokapić, Artur G. Bezverkhov
  • Language:English
  • Subject(s):Law, Constitution, Jurisprudence, International Law
  • Page Range:50-86
  • No. of Pages:37
  • Keywords:Space wars; Outer space; International law; Law of armed conflicts;
  • Summary/Abstract:Outer space has long since become very important from the perspective of military doctrine and international law of armed conflicts. Until recently it was mostly about using it for spying (via artificial satellites) or ballistic missiles. Then the Us began to develop the program "Strategic Defense Initiative" , known as "Star Wars", which amounts to erecting a powerful antimissile shield above the US at high altitudes and with many of the components stationed in space (surveillance satellites, satellites for shooting down enemy missiles, etc.) . In addition, there are also some hypothetical problems. One pf them is the use of outer space not only for some kind of support for military operations on the ground , in the air, and on the water but also for direct (offensive) action against targets on our planet. another issue that attracts attention is possible armed conflicts in deep space. all these issues require an appropriate response from international law. In this regard, the fact is that international treaties and universal customary international law contain a number of clear principles that should prevent armed conflicts in space, i.e. , the use of space for armed conflicts on Earth. However, it is becoming increasingly evident that these principles will soon be violated. Among other things, attacks on enemy spy satellites can soon be expected in connection with the present armed conflict in Ukraine. All of this leads to changes in international law space itself, both in terms of the possible definition of new principles of space law and in connection with the need to regulate some new issues, such as, for example: what are the actual frameworks of neutrality in the war in outer space?; is it permissible to attack private satellites that are use for spying purposes in favor of one's enemy?, and the like.
Тумачење као инструмент Европског суда правде за ширење унутрашње надлежности

Тумачење као инструмент Европског суда правде за ширење унутрашње надлежности
(Interpretation of ECJ's Tool for Expansion of the EC/EU's Internal Competencies)

  • Author(s):Nebojša Raičević
  • Language:Serbian
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:87-100
  • No. of Pages:14
  • Keywords:Interpretation;European Court of Justice;Implicit Powers;European Communities;European Union;Founding treaties
  • Summary/Abstract:The European Court of Justice used a systematic (contextual) and teleological interpretation of founding treaties and secondary legislation to expand the internal competence of the European Communities / European Union. It accepted and applied the concept of implicit powers to strengthen the position of the institutions of those organizations vis--vis member states. The European Court of Justice initially use the extensive interpretation of the founding treaties and the doctrine of implicit powers to expand the internal competence of the EC/EU in the economic, and later in the non-economic sphere. The ECJ first applied this concept in 1955 in the Fédéchar case. On that occasion, The ECJ concluded that the High Authority, in addition to the activities expressly stated int the founding treaty, may undertake some other measures that are necessary for achieving the goals contained in the founding treaty. This enabled the Community to exercise its expressly enumerated powers by undertaking activities that are not explicitly stated. A few years later, the ECJ expanded its understanding of the concept of internal implied powers, clarifying that these powers can be derived not only from a specific provision or general objectives of the founding treaty but also form the "general structure" of that treaty (Case 20/59; Case 25/59). Leaning on the principle of effete utile, the ECJ used a teleological interpretation to strengthen the powers of the EEC in one proceeding for initiating interim measures for the competition protection. In that proceeding, the Court examined whether the Commission can impose interim measures under the Council Regulation no. 17 of 1962, although the Regulation does not mention such a possibility at all. After stating that in the field of competition protection there are situations when it is necessary to adopt interim protective measures in order to prevent irreparable damage to states or other companies, the ECJ concluded that the Commission's supervisory task conferred upon it in competition protection "includes the power to take interim measures which are indispensable for the effective exercise of its function" (Case 792/79R, Order, paras. 14, 18). Beside the economic area, the ECJ considered the doctrine of implicit powers based on extensive interpretation, in other areas of EEC activity. in the mid-1980s, the ECJ dealt with this powers in the context of immigration policy. Several member states considered Commission's Decision 85/381 concerning the status of foreigners to be ultra vires and requested its annulment. Dealing with that problem, the ECJ once again emphasized that, in the addition to the explicitly enumerated competences, the Commission may also have some other powers that are necessary for it to exercise those explicitly recognized competences. The ECJ also used teleological interpretation in criminal matters that at that time were not within the competence of the EC, but belonged to the third pillar within the EU. At the heart of the case was a dispute between the Commission and the Council regarding which legal act should regulate environmental protection in order to harmonize national environmental criminal law. The Commission considered that it is mainly an environmental matter that falls under the first pillar, and should be regulated by a directive, while the Council considered that a framework decision should be adopted in the domain of the third pillar because it is a criminal matter, and the Council acted in this way. Acting in this case, the Grand Chamber first stated that neither criminal substantive law nor criminal procedural law fall under the Community's competence, but added that it does not prevent the EC from adopting criminal law measures it deems necessary to ensure that the environmental rules adopted by the Community be effective.
The Challenges Facing British Judges in Interpreting EU Law After Accession (1973-1990): Differences Between the Rule of Construction and Marleasing

The Challenges Facing British Judges in Interpreting EU Law After Accession (1973-1990): Differences Between the Rule of Construction and Marleasing
(The Challenges Facing British Judges in Interpreting EU Law After Accession (1973-1990): Differences Between the Rule of Construction and Marleasing)

  • Author(s):Allan F. Tatham
  • Language:English
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:101-118
  • No. of Pages:18
  • Keywords:Principle of consistent interpretation;National courts' interpretation of EU law;British judiciary;Domestic rules of interpretation;Rule of construction;Impact of Marleasing
  • Summary/Abstract:As judges from across the Western Balkans are trained in the rules concerning the interpretation and enforcement of (rights under) EU law in cases before them, this paper will examine how British judges approached this same matter in the immediate post-accession period, 1973-1990. It will be shown that, for many years after accession, domestic judges in the United Kingdom sought to impose their own canons of interpretation when approaching EU law in cases in which they were adjudicating. The gradual movement to embrace the principle of consistent interpretation used by the European Court of Justice in its seminal ruling in Marleasing, ultimately resulted in a distinct re-orientation of British judges in their approach to the basis of their decision-making and the legal sources available to justify their reasoning. This paper will therefore trace the main cases as examples of the process by which British courts gradually came to accept consistent interpretation, highlighting the difficulties faced in adapting to different ways in understanding the application of EU law. Discussing these various judgments underlines the fact that even a log-established judiciary from a new Member State faced many challenges in coming to terms with the implications of post-accession application and interpretation of EU law.
The Protection of Fundamental Rights in the EU Between Creation and Interpretation : the Contribution of the Court of Justice of the European Union

The Protection of Fundamental Rights in the EU Between Creation and Interpretation : the Contribution of the Court of Justice of the European Union
(The Protection of Fundamental Rights in the EU Between Creation and Interpretation : the Contribution of the Court of Justice of the European Union)

  • Author(s):Federica Rassu
  • Language:English
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:119-133
  • No. of Pages:15
  • Keywords:EU law;Protection of fundamental rights;Court of Justice;EU case law;Charter of Fundamental Rights of the European Union
  • Summary/Abstract:The European Community created in 1957 does not have the primary objective of guaranteeing fundamental rights, so the EEC Treaty did not mention the protection of fundamental rights in the Community's legal order. The absence of specific and comprehensive provisions for the protection of fundamental rights did not, however, translate into an absence of legal protection. This gap of written Community law was first filled by case law. As early as 1969, the protection of fundamental rights made its appearance through the creative work of the Court of Justice. This case law was then enshrined in primary law, the respect of which is guaranteed by the interpretation of the Court of Justice, leading to the development of the Charter of Fundamental Rights of the European Union. The interpretative work of the Court of Justice has accompanied these developments.
Поступак о претходном питању између интерпретативног и правностваралачког деловања Суда правде Европске уније

Поступак о претходном питању између интерпретативног и правностваралачког деловања Суда правде Европске уније
(The Preliminary Ruling Procedure Between Interpretative and Lawmaking Actions of the Court of Justice of the European Union)

  • Author(s):Boris Tučić, Radmila Dragišić
  • Language:Serbian
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:134-163
  • No. of Pages:30
  • Keywords:EU law;Preliminary ruling proceedings;International law;National law;Creation;Interpretation, and Application of the law
  • Summary/Abstract:The preliminary ruling procedure before the Court of Justice of the European Union, as its exclusive interpretative authority in the past seven decades, has proven to be critical instrument not only of the jurisprudential constitutionalisation of the legal order of the European organisation in a way in which the Member States, as "the masters of the Treaties" (Solange case) could not even imagine, but also of its substantive enrichment in different areas, thus achieving direct but crucial communication with national courts and national legal systems in general. A broad spectrum of "achievements" of the Court of Justice within the preliminary ruling procedure, from establishing the concept of the autonomy of EU law, and identification and evolution of its specific content elements, where the central place belongs to the ones with the constitutional character, such as the principles of the primacy and direct effect or the principle of uniform interpretation and efficient application of the Organisation's law, through interpretative filling of legal gaps and loopholes even in areas characterized by clear contractual restrictions in the context of position and competence of the European judicial institution, such as, in the earlier period, internal affairs and judiciary, i.e., today still Common foreign and security policy of the European Union, to specific interpretative defining of relations between the European organisation law and typical international law on different grounds, imposes the necessity to answer the question regarding the extent to which the preliminary ruling procedure has been truly exhausted in its original contractual purpose, which is interpreting and determining the validity of EU law, and to which it has served to the Court of Justice as, conditionally, a lawmaking mechanism at both the constitutional and substantive legal level. In the attempt to provide an answer to this question, this paper, along with contractual solutions, primarily analyzes the case law of the Court of Justice through which the mentioned and some other "achievements" in the domain of shaping the legal nature, but also specific substantive law solutions in the legal order of the European organisation, have been accomplished. In doing so, in order to create the appropriate framework for such actions, the Court of Justice first attempted to shape the very preliminary ruling procedure in an identical way, and then, from the mid-70s, to face "the gauntlet thrown down"by supreme national judiciary authorities, embodied in the constitutional courts of the Member States, which did not look with approval on its, admittedly rather hidden "lawmaking" pretensions.
On Importance of the Legal Standard "Legal or Election Expert" for Selection of Members of the Central Election Commission of Bosnia and Herzegovina

On Importance of the Legal Standard "Legal or Election Expert" for Selection of Members of the Central Election Commission of Bosnia and Herzegovina
(On Importance of the Legal Standard "Legal or Election Expert" for Selection of Members of the Central Election Commission of Bosnia and Herzegovina)

  • Author(s):Goran Marković
  • Language:English
  • Subject(s):Social Sciences, Law, Constitution, Jurisprudence
  • Page Range:167-188
  • No. of Pages:22
  • Keywords:Election management body; Election commission; Central Election Commission of Bosnia and Herzegovina;Election law; Legal standard; Legal and election expert;
  • Summary/Abstract:The subject of the work is requirements which the candidates for membership in the Central Election Commission of Bosnia and Herzegovina (CEC) have to fulfill. The author criticizes the solution of the Election Law of Bosnia and Herzegovina, according to which the only one quite general requirement has to be fulfilled. This requirement has been defined as a legal standard which can be understood in many different ways which paves the way for almost absolute discretionary power of political elites in the process of selection. This subject has to be analyzed in connection of other issues - composition of the CEC and the method of selection of its members. The author does exactly this, using both positive legal and comparative methods. His conclusion is that the selection of members of the CEC by a political institution in combination with very wide and general legal requirements which candidates have to fulfill give almost total freedom to political elites to select their protegees. Therefore the author proposes quite different composition, method of selection and legal requirements which candidates have to fulfill.
Нови закон о локалним изборима и његов утицај на локалну демократију у Републици Србији

Нови закон о локалним изборима и његов утицај на локалну демократију у Републици Србији
(New law on local elections and its influence on local democracy in the Republic of Serbia)

  • Author(s):Marko Stanković
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Electoral systems
  • Page Range:189-204
  • No. of Pages:16
  • Keywords:Local democracy; Local elections; Voting; Municipality; Law on Local Elections;
  • Summary/Abstract:The paper analyzes the consequences of adopting the new Law on Local Elections in the Republic of Serbia. After a brief analysis of the significance of local elections for a democratic political system, the paper reviews earlier legal solutions from 1990 to the present. The central part of the paper focuses on analyzing the novelties set forth by the new Law on Local Elections. Next, the author puts forward arguments for introducing fundamental changes to the electoral system of local elections in Serbia. In the concluding remarks, among other things, certain improvements to the current legal framework are proposed.
УСТАВНОПРАВНИ И УПРАВНОПРАВНИ АСПЕКТИ ИМПЛЕМЕНТАЦИЈЕ ПРЕПОРУКА УГОВОРНИХ ТЕЛА САВЕТА ЕВРОПЕ – између стварања и тумачења права –

УСТАВНОПРАВНИ И УПРАВНОПРАВНИ АСПЕКТИ ИМПЛЕМЕНТАЦИЈЕ ПРЕПОРУКА УГОВОРНИХ ТЕЛА САВЕТА ЕВРОПЕ – између стварања и тумачења права –
(CONSTITUTIONAL AND ADMINISTRATIVE ASPECTS OF IMPLEMENTING RECOMENDATIONS OF COUNCIL OF EUROPE TREATY BODIES - between creation and interpretation of law -)

  • Author(s):Vladimir Đurić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Governance, Electoral systems
  • Page Range:205-226
  • No. of Pages:16
  • Keywords:Framework Convention; European Charter on Regional or Minority Languages; Treaty bodies; Recommendations;
  • Summary/Abstract:The Council of Europe treaty bodies monitor the implementation of certain conventions in the signatory states (Framework Convention for the Protection of National Minorities and European Charter for Regional or Minority Languages). The implementation of those conventions into the contracting parties’ internal legal order requires, first of all, acting in line with the recommendations of the relevant bodies that monitor this implementation. These are the recommendations of the Advisory Committee of the Framework Convention, the Committee of Experts of the European Charter, and the Committee of Ministers, whose acts bring to an end the respective monitoring cycles. Based on the analysis of the legal nature of the recommendations, the paper examines open questions of a constitutional and administrative nature related to the process of their implementation, indicating that such process can move between the creation and interpretation of law.
Подјела надлежности у Босни и Херцеговини између слова и духа Дејтонског мировног споразума - јавноправни и приватноправни аспект-

Подјела надлежности у Босни и Херцеговини између слова и духа Дејтонског мировног споразума - јавноправни и приватноправни аспект-
(Division of Jurisdiction in Bosnia and Herzegovina Between the Letter and Spirit of Dayton Peace Agreement - public and private law aspects-)

  • Author(s):Matej Savić, Zoran Vasiljević
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Public Law
  • Page Range:227-252
  • No. of Pages:26
  • Keywords:Dayton Peace Agreement; Jurisdiction; B&H;Entity; The Constitution; Public law; Business law; Legal order;
  • Summary/Abstract:The topic of this paper, concentrated in space and time on the current situation in Bosnia and Herzegovina, oscillates between two basic theoretical and legal dimensions: normative-of what should be, and factual-of what it is (what it wants to be). The authors choose this topic with intention to offer a scientific view on the legal issues which still remain open. In the past thirty years, we have witnessed many conflicting opinions regarding the understanding and interpretation of B&H's legal nature, status, division of jurisdiction, state organization, and the position of entities, within it. In addition to this, we must remember that the creation of this internationally recognized state took place in turbulent social, political and, indeed, legal circumstances, that resulted in the conclusion of the General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Peace Agreement). First, in this paper authors analyze the normative and institutional framework (order) established by the Dayton Peace Agreement, i.e., its Annex 4 (Constitution of B&H). Then, following the (re)evolution of the internal organization and division of jurisdiction until today, the authors deal with the constant problem of particular (voluntarist) deviation form the Dayton framework (order). Namely, the provisions of the Constitution of Bosnia and Herzegovina define a rather narrow scope of exclusive institutional competencies at the state level of Bosnia and Herzegovina, while specifying, on the other hand the original competencies of the entities in all other jurisdictional areas. Besides this, special attention was paid to continuous problems arising from the very interpretation of the Dayton Peace Agreement (provisions) and its annexes, primarily in the context of expanding the jurisdiction of B&H institutions by means of imposing laws by the High Representative and by decisions of the Constitutional Court of B&H. The authors raise the question of the constitutionality of this practice, especially taking into the account the fact that B&H was created by the association of entities and that all competences, even exclusive ones, originally belonged to the entities. This paper emphasizes the public law and private law aspects of the division of jurisdiction between B&H and the entities, as well as the specifics that have appeared since 1995 until today.
Контроверзе стварања права актима Високог представника у Босни и Херцеговини

Контроверзе стварања права актима Високог представника у Босни и Херцеговини
(The Controversies of Law-Making by Means of the Acts of the High Representative in Bosnia and Herzegovina)

  • Author(s):Milan Pilipović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Constitutional Law, Governance, Politics and law
  • Page Range:253-278
  • No. of Pages:26
  • Keywords:High Representative; Annex; The Constitution; Law; Law-making; Advice;
  • Summary/Abstract:The existence, the position and authority of the High Representative are governed by Annex X of the General Framework Agreement for Peace in Bosnia and Herzegovina, That Annex, among other things, determines that the High Representative is the ultimate authority for interpreting the Agreement on the Implementation of Civil Aspects of Peaceful Settlement. However, in practice, he acted as a lawmaker by introducing amendments to entity constitutions and laws at the B&H and entity level. The existence of the High Representative from a formal aspect is not questionable, However the author disputes his activity, which recently manifested in law-making, from the theoretical and constitutional aspects. Therefore, under the said Annex, the High Representative did not receive any legislative powers. He did, however, received a mandate to supervise the implementation of the peace settlement, maintain contacts with the contracting parties, coordinate the activities of civil organizations and agencies, advice and suggest certain solutions, and periodically report on the progress and implementation of the peace agreement. This Annex does not result in any ordering, dismissal or appointment of its people, let alone the passing of laws and other regulations in place of the legal and legitimate bodies of the two entities and the institutions of Bosnia and Herzegovina. The High Representative, when making his decisions, referred to Annex X, as well as to the provisions of the declarations of the Peace Implementation Council, which expanded his powers. The paper indicates that the establishment of the Council for the Implementation of Peace and its Board of Directors took place after the signing of the Dayton Peace Agreement, without any special legal basis and without the consent of the contracting parties who signed Annex X. The author advocates the thesis that Annex X, acts of the Peace Implementation Council, as well as other relevant acts related to the High Representative, do not contain a legal basis for him to issue normative acts, that is, to exercise the constitutional and legislative powers. The Bonn Declaration did not explicitly establish the authority of the High Representative to pass laws, i.e., to replace legislative bodies, but to pass "temporary measures" instead of the Presidency and the Council of Minsters. The controversial activity of the High Representative will shed some light on the role of the Constitutional Court of Bosnia and Herzegovina too. The Constitutional Court accepted the jurisdiction to examine the constitutionality of the act adopted by the High Representative, deciding not to enter into the assessment of the High Representative's powers. The Court decided that it is not competent to evaluate the powers of the High Representative to enact laws because it is an institution of international character. At the same time, the Court assesses that the institution of the High Representative has replaced the domestic institutions, i.e., that he acted as an institution of Bosnia and Herzegovina, that the law passed by the High Representative must be deemed the law of Bosnia and Herzegovina and, the Court decided that the law passed by the High Representative was in accordance with the Constitution of Bosnia and Herzegovina. Instead of being the guardian of the Constitution and constitutionality in Bosnia and Herzegovina, the Constitutional Court of Bosnia and Herzegovina, with its decisions and positions, contributed to the High Representative becoming a special institution in Bosnia and Herzegovina, which, by creating law, changes the constitutional and legal order of Bosnia and Herzegovina and its entities. Making law should not be a unilateral authoritarian declaration of an individual. Amendments and additions to general legal norms, especially the Constitution, should express and satisfy the interests of those to whom it relate. In Bosnia and Herzegovina, these are the three constituent nations. That is why the three constituent nations must exclusively participate in law-making through their elected representatives in the parliaments.
Дејтонска и постдејтонска концепција политичког система Босне и Херцеговине

Дејтонска и постдејтонска концепција политичког система Босне и Херцеговине
(Dayton and Post-Dayton Concept of Political System of Bosnia and Herzegovina)

  • Author(s):Nevenko Vranješ
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
  • Page Range:279-310
  • No. of Pages:32
  • Keywords:Bosnia and Herzegovina; Constitution of Bosnia and Herzegovina; Political system; Dayton Peace Agreement;
  • Summary/Abstract:The current political system of Bosnia and Herzegovina was established based on on several political processes that took place in Europe in 1990s. These included the fall of communism, political pluralism, military reorganization, market economy, and other elements of the post-socialist transition. Bosnia and Herzegovina, as one of the six republics of the former SFRY with a multi-ethnic population, welcomed these changes as they reflected multi-ethnic structure of Yugoslav community. However, the tragic war conflict that engulfed the region severely affected this particular republic, resulting in unfathomable consequences with over a hundred thousand dead, millions of displaced persons, and complete devastation of the economy, infrastructure production capacities, and numerous other social resources. After the end of the armed conflict the international community established the Dayton Bosnia and Herzegovina with a minimum of common institutions and competencies, thus configuring its legal and political system that will have unique points in the domain of foreign affairs, communications, foreign trade and monetary affairs, while leaving all other functions to the entities. This was the product of the broadest and only possible compromise with the aim of stopping the war and preserving some form of state and statehood. However, informal and unofficial changes followed the signing of the Dayton Peace Agreement, which later entered the sphere contrary to the internal and international legal order. As a result, we we can now talk about the post- Dayton concept of the political system of Bosnia and Herzegovina as it exists today. The aim of this paper is to analyze the political system of Bosnia and Herzegovina based on the principles of the Dayton Peace Agreement and the current situation embodied in its post-Dayton concept. The basic hypothesis is that the political system of Bosnia and Herzegovina , which is based on the Dayton Peace Agreement, is specific and atypical. This system represents the broadest possible compromise and it is the only sustainable one. The author will use the content analyses method, legal exegesis, statistical methods and basic synthetic methods to conduct the analyses.
Парадокси референдума у савременим правним системима

Парадокси референдума у савременим правним системима
(The Paradoxes in the Referendum in Modern Legal Systems)

  • Author(s):Mijodrag Radojević
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Governance, Politics and law
  • Page Range:311-337
  • No. of Pages:27
  • Keywords:Direct democrary; Representative democracy; Sovereignty; Constitutional referendum; Rule of law;
  • Summary/Abstract:The referendum is one of the fundamental mechanisms of direct democracy, and there is no consensus in legal theory about its potential value. Scholars give different in answers to the question of whether this specific popular vote is an instrument of populism or democracy, i.e., whether the referendum compensates for the shortcomings of representative democracy or favors its collapse. Despite their inherent shortcomings, empirical evidence confirms the increasing role of various forms of referendums in modern legal systems in recent decades in the world. The phenomenon of this popularity is explained by the evolution of constitutional democracy, but also by the operation of a complex set of circumstances. On the other hand, the practice of the referendums has confirmed the problems related to their maintenance at the national level, especially in the countries of the former Yugoslavia, but also in countries with a democratic tradition. Based on experiences in the development of this institution within the Council of Europe, basic guidelines, recommendations and procedures have been defined. Nevertheless, research and analytical approach are necessary that would point to the other conditions, adapted to the circumstances and topics being decided on in the referendum, as the guarantees that it is an effective tool for supplementing representative democracy.
Rechtsdogmatik and Its Place in Practical and Theoretical Jurisprudence

Rechtsdogmatik and Its Place in Practical and Theoretical Jurisprudence
(Rechtsdogmatik and Its Place in Practical and Theoretical Jurisprudence)

  • Author(s):Csaba Varga
  • Language:English
  • Subject(s):Law, Constitution, Jurisprudence, Philosophy of Law
  • Page Range:341-353
  • No. of Pages:13
  • Keywords:Languages of law; Doctrinal study of law; Ius/lex; Rules/norms; Conceptualisation; Systemicity; Law/The Law;
  • Summary/Abstract:Legal doctrine, doctrine juridique, or, as termed in its specialized German cultivation -Rechtsdogmatik, by transforming by given texture of the law into a logically organised conceptual system, will result in changes not of the law per se but its understanding as well. Thereby, it duplicates the legal phenomenon, giving mere drafted wordings conceptuality and systematicity. The paper overviews the novelty, formative role, understanding as a tentative scheme, and scientific status of the doctrinal work of law. Considering the fact that the law itself is neither theoretical in its nature nor a directly scientific product, but is a practical category, the doctrinal study of law is not "cognitively recognized". Consequently, non of its results can be verified or falsified. It is fundamentally a parasite: a collateral entity contingent on the law in force and guidance on how to understand the latter.
U potrazi za pravim značenjem pravnog pravila

U potrazi za pravim značenjem pravnog pravila
(In Search of the True Meaning of Legal Rules)

  • Author(s):Mirjana Nadaždin Defterdarević
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:354-373
  • No. of Pages:20
  • Keywords:Legal norm; Interpretation of law; Interpretation methods; Legal arguments; Discursive character of argumentation; New rethoric;
  • Summary/Abstract:The paper is devoted to the issue of establishing the true meaning of legal norms. Interpretation of law transcends in its complexity the interpretation of all other, however complex, cultural phenomena, rendering the hermeneutic approach, which has been practiced from the very beginning of law, insufficient. The reason for this is extralegal elements, which the hermeneutic approach in interpreting content implies. The escape the control of legality and objectivity, whose respect is, essentially, determined by law. The paradigm of difficulty and complexity of interpreting and understanding the content of a legal message is a legal dispute in which determining the true meaning of a legal norm implies legal syllogism, logical reasoning, and argumentative explanation of the conclusions reached. The resolution of a legal dispute, as the best example of the interpretation of law, testifies the interpretation in law implies the simultaneous application of hermeneutics, argumentation, and rhetoric. This approach was practiced until the modern age when, following the idea of making law, both as a science and as and activity, objective, exact, value-neutral, and certain, it moved away from both hermeneutics and rhetoric. It was a delusional attempt. With its irreplaceable creative charge to the interpretation of law, rhetoric has returned, replacing traditional methods of interpretation with legal arguments, and the theory of legal argumentation has mainly become the theory of legal interpretation. In an effort to better respond to the demands of jurisprudence, legal hermeneutics offered new approaches that emancipated as theories of juristic argumentation.The author raises the issue of the reliability of a legal instrument for determining the true meaning of the legal norm, the manner and the magnitude of changes in the approach to interpretation over time, and the real effects of those applications. In doing so, she explains the necessity of the interpretation procedure, reviewing individual approaches chosen for this purpose without intending to present the procedure of interpretation and understanding of legal content in all its complexity. The paper, in its review , follows different approaches to the interpretation of legal content, from legal hermeneutics, methods of interpretation, legal argumentation and its application as a discursive technique, all the way to new rhetoric showing the directions in which interpretation in law moved. The theoretical legal approach in the explication of the topic is based on the application of dogmatic, teleological, axiological, and sociological methods.
Функционална анализа права

Функционална анализа права
(The Functional Analysis of Law)

  • Author(s):Anja Bezbradica
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Sociology of Law
  • Page Range:374-391
  • No. of Pages:18
  • Keywords:The functional analysis of law; Functions of law; Purpose of law; Latent and manifest functions of law;
  • Summary/Abstract:The paper analyzes the jurisprudential literature regarding the functional analysis of law and postulates that there has not been significant research on the functions of law in jurisprudence. Starting from Merton's (Robert K. Merton) distinction between latent and manifest functions, we hypothesize that one of the reasons for the illusion of the ubiquity of the functional analysis of law in the legal literature is the conceptual identification of the terms goal (purpose, aim) and function in jurisprudence. In addition, due to the dominance of normative theories of law, even among authors who clearly separate the goal of law and its functions, dealing with the latter happens incidentally and on a high theoretical level. On the contrary, this paper intends to position the functional analysis of law where naturally belongs - in the field of empirical sociology, leaving the issue of law purposes to the philosophy of law. Additionally, like in Merton's theory, the author points to the need to provide ideological neutrality to the functional analysis, which could be achieved by rejecting the principles of classical functionalism. This means accepting that law does not always perform positive functions in society, that it can be functional for one unit of society and dysfunctional for another, and accepting the possibility for it to have functional alternatives. The analysis aims to provide a conceptual-methodological framework for future research on the functions of law.
Карактеристике правних режима делатности полиције

Карактеристике правних режима делатности полиције
(Characteristics of Legal Regimes Governing the Scope of Police Activities)

  • Author(s):Miloš Prica
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:395-416
  • No. of Pages:22
  • Keywords:Scope of the police activities; Teleological legal positions; Systematic legal positions; Regulatory legal positions; Legality in the material sense; Legality in the formal sense;
  • Summary/Abstract:In various areas of the legal order, numerous legal regimes govern the subject matter and activities of the subjects of the legal order. Legal regimes are composed of legal principles and legal norms, which are fundamentally based on difference between teleological, systematic, and regulatory legal positions. The legal regimes present in the legal order differ in their content, and the basic criterion for distinction is embodied in the relationship between legal principles as teleological legal positions and legal norms as systemic and regulatory legal positions. The regulatory activity of the police rests on the legally binding nature of legal norms as regulatory legal positions and assessment of expediency (purpose and effectiveness). On the other hand, the physical activity of the police can be governed only partially by legal norms as regulative legal positions; consequently, the legal norms as systemic legal positions prevail in the legal regime governing the physical activity of the police. For the purpose of protecting the public order, the physical activity of the police is reinforced by the presumption of legality, the assessment of expediency, and the possibility of immediate execution, whereas the legal norms as systemic legal positions are equally present in police control, monitoring and supervision activities. Bearing all this in mind, and depending on the specific form of police activity in the legal regime regulating police activities, it is important to make a clear distinction between legality in the material sense and legality in the formal sense.
Управни уговор у домаћем праву

Управни уговор у домаћем праву
(Administrative Contract in the Legal Systems of Republic of Srpska and Bosnia and Herzegovina)

  • Author(s):Sanja Golijanin
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Public Administration, Public Law
  • Page Range:417-432
  • No. of Pages:16
  • Keywords:Administrative contract; Civil contract; Law and Administrative Procedure; Contract on public procurement; Concession Agreement;
  • Summary/Abstract:An administrative contract usually refers to a specific type of contract, different from civil and commercial contracts. In this paper, the author questions the existence of administrative contracts in the legal system of the Republic of Srpska and Bosnia and Herzegovina, while respecting the fact that this institute is not governed by general administrative-procedural laws at any levels of governance in Bosnia and Herzegovina. When trying to answer this question, the first step is to examine the specific rules on administrative contracts in the legislation of individual countries. The goal is to determine whether administrative contract regulated by laws on public procurement and laws on concessions have an administrative character. It seems to the author that neither the legislator nor the legal theory provides sufficient grounds for the claim that there are administrative contracts in the legal system of the Republic of Srpska and Bosnia and Herzegovina.
Професионализација јавне управе у Босни и Херцеговини - мит или (реална) опција

Професионализација јавне управе у Босни и Херцеговини - мит или (реална) опција
(Professionalization of Public Administration in Bosnia and Herzegovina - a myth or (real) option)

  • Author(s):Jelena Starčević
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Public Administration
  • Page Range:433-460
  • No. of Pages:28
  • Keywords:Professionalization; Public administration; Expertise; Civil servants; Education; Reform;
  • Summary/Abstract:The term "professionalization" of public administration primarily means a professional, educated civil servants with clearly defined roles, duties and lines of responsibility work. It also implies transparent work processes and adequate legal protection of citizens. Although this concept is almost as old as the concept of public administration itself, and was introduced several decades ago as one of the leading tendencies by one of the founders of Public Administration Science - Eugen Pusić, it still represents a challenge and seems, more than ever, an unattainable ideal not only for Bosnia and Herzegovina but also for other countries of the Western Balkans, such as Serbia, Montenegro, North Macedonia and Albania. The European Commission set public administration reform in early 2000s as a condition for countries in the process of joining the European Union, which was supposed to compel the authorities in BiH to commence reform aand professionalization of this area. Twenty years later, however, the reform is still in its early stages of implementation. In all EU reports on B&H's progress in the field of public administration reform, it is evident that it is lagging behind and does not seems to be the lack of will of decision-makers to put this area at the top of the political agenda and, secondly-too much dependence on politics and political processes. Since the public administration is still the biggest employer of working-age population in BiH and the private sector is still insufficiently strong and underdeveloped to enforce its standards on the labor market, separating public administration from politics and providing impartial and transparent recruitment processes according to the criteria of expertise and competence has become almost impossible. Therefore, the expert public is now facing the inevitable question: is it possible to professionalize public administration in Bosnia and Herzegovina despite all the disadvantages of the socio-political context? Or is this possible to do so at least to a level that meets the criteria of the European Administrative Area? Or will it remain just an unattainable myth and tendency? In the latter case, the consequences for the whole society would be the failure to accede to the European Union, continual migration of young and qualified people from the country, the slowness of the administrative processes that repel potential foreign investors, and thus, slow development of whole real sector and many other negative consequences. This paper explores the concept and elements of professionalization, its prerequisites, processes and conditions that make professionalization difficult or impossible to attain. It also puts foreword recommendations for improving the situation in this area.
Утицај начела официјелности на правни положај странке у управном поступку уписа у катастар непокретности у Републици Србији

Утицај начела официјелности на правни положај странке у управном поступку уписа у катастар непокретности у Републици Србији
(The Effect of the Principle of Officiality on the Legal Position of the Party to the Administrative Procedure of Registration in the Real Estate Registry in the Republic of Serbia)

  • Author(s):Milica Torbica
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Public Administration, Public Law
  • Page Range:461-477
  • No. of Pages:17
  • Keywords:Ex-officio principle; Real estate cadastre; Cadastral registration procedure; Parties to cadastral registration procedure;
  • Summary/Abstract:In the 1990s the Republic of Serbia began the process of establishing a single record of immovable properties and rights to them, the real estate cadastre, which replaced the existing land registers, deed system and land cadastre as an administrative body. As a rule, the administrative registration procedure in the real estate cadastre in Serbia is initiated ex officio, by delivering a document suitable for registration by the parties obliged to deliver: courts, public notaries, public bailiffs, and other public administration bodies. Very short limitation periods are stipulated for submitting the cadastral documents and for issuing decisions based on the submitted documents. In issuing its decision, the cadastre verifies the formal correctness of the submitted documents without examining their material legality. In this way the registration process is simplified and accelerated, and the public register of immovable property and related rights, with the prescribed mandatory registration and digitization, inevitably becomes more up-to-date. Under the said special administrative procedure, active role of the party is not provided for; that is, the party utilizes the possibility of protecting its rights and interests only after the adoption of the first-instance decision and by means of the right to appeal. Obviously, it was considered that by prescribing clear rules for each stage of the procedure, with the support of information technology by various authorities, the party cannot even find itself in a situation where its rights are threatened in any way. However, despite the high degree of responsibility and professionalism, the obligee may make a mistake by, for example, submitting incomplete documentation or delivering documents concerning different types of registration and the said immovable property (registration of encumbrances, property or records of some other rights, which might restrict further use of the immovable property) in the wrong order. As the cadstre cannot make a positive decision in such situations, and the obligee of the delivery does not have the possibility of supplementing the procedure or changing the order of the submitted requests ex officio, providing such a right to the party would be justified. Since the party neither caused nor influenced the situation which affects them alone and under the basic principles of the general administrative procedure, we consider it justified to ensure an active role for the party in the process until the decision is reached, which would protect not only the interest of that party but also the public interest.
Društveni značaj funkcija inspekcijskog nadzora i ograničenja njihove primjene u praksi

Društveni značaj funkcija inspekcijskog nadzora i ograničenja njihove primjene u praksi
(Social Significance of Inspection Functions and Their Practical Limitations)

  • Author(s):Emir Mehmedović, Aleksandar Damjanović
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Public Administration
  • Page Range:478-498
  • No. of Pages:21
  • Keywords:Inspection; Functions of inspection; Preventive function; Corrective function; Repressive function;
  • Summary/Abstract:In this paper, the authors discuss the issue of social significance of the preventive, corrective, and repressive functions of inspection, both theoretically and in the context of their practical application. Through a specific inspection process, inspection services examine the compliance of supervised entities with rules established by legal norms. In carrying out these activities, they can undertake preventive, corrective, and repressive measures, thus performing a preventive, corrective, and repressive function. The preventive function of inspection supervision aims to prevent violations of regulations; the corrective function aims to correct, eliminate, or reduce the consequences of identified irregularities; while the repressive function aims to punish supervised entities regarding both legal norms and societal goals. Although each of the mention functions undoubtedly contributes to the realization of public policies in specific areas of administrative procedures, there are limitations reflect in the insufficient number of inspectors, their inadequate training, the high turnover of inspection personnel, political influence on the work of inspection services, the absence of of adequate punitive policies, as well as shortcomings in the professional and technical support necessary for timely supervision and analysis of conditions in specific areas of inspection. Each of these limitations, to varying degrees, affects the possibilities and scope of performing inspection functions, consequently limiting the opportunities to exploit their benefits.
Распоређивање запослених

Распоређивање запослених
(Deployment of Employees)

  • Author(s):Radislav Lale
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Labor relations, Labour and Social Security Law
  • Page Range:501-526
  • No. of Pages:26
  • Keywords:Employment relationship; Work place; Deployment; Annex to the employment contract;
  • Summary/Abstract:The main purpose of assigning employees is to ensure optional work function of the personnel potential. By assigning a worker to a suitable workplace, the employer protects his own interests primarily. Still, the workers also benefit from being assigned to a workplace that corresponds to their professional and working abilities. This paper systematically analyzes positive legal regulation concerning the institution of deployment of employees with special reference to the offer by the employer to change the terms of the employment contract. Specific parts of the paper also focus on the risk and various forms of abuse of the authority to reassign employees. The author will put forward proposals de lege ferenda aimed at creating regulations that will govern the amendments to the employment contract. This would contribute to establishing a balance between the company's interests and the employer's management authority on the one hand, and the need to protect workers as the weaker party to the employment relationship, on the other hand.
Правни режим и специфичности рада од куће

Правни режим и специфичности рада од куће
(Legal Regime and Specifics of Working from Home)

  • Author(s):Jovana Rajić Ćalić
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Labor relations, Labour and Social Security Law
  • Page Range:527-542
  • No. of Pages:16
  • Keywords:Working from home; Corona pandemic; Labour subordination; Health and safety work;
  • Summary/Abstract:Working from home, as a specific way of organizing business, has become relevant due to the COVID-19 virus pandemic and has, thus, begun too attract increasing attention from lawyers. Digitization has also contributed to the renaissance of this form of work, opening unprecedented opportunities for a wide range of work engagements outside the employer's premise. Working from home introduces the changes within the institute of legal subordination of the employer-employee relationship, in the field of protection and safety at work and in the area of the employees private life. It also affects the employees efforts to strike a balance between family and work. In light of this, we hypothesized that the Labor Law contains insufficient provisions regulating work from home, which is increasingly present in the current practice. In addition to proposing the amendments to the Labor Law, the paper will point out the importance of the provisions on working from home in the Law on Safety and Health Work, which does not recognize this form of work engagement at all.
Agencijski rad: diskrepancija između tumačenja propisa i praktične primjene instituta

Agencijski rad: diskrepancija između tumačenja propisa i praktične primjene instituta
(Agency Work: Discrepancy Between Interpretation of the Institute and Its Practical Application)

  • Author(s):Armina Čunjalo
  • Language:Serbian
  • Subject(s):Law, Constitution, Jurisprudence, Labour and Social Security Law
  • Page Range:543-558
  • No. of Pages:16
  • Keywords:Agency work; Interpretation; International law; National legislation; European labor law;
  • Summary/Abstract:Globalization and the development of law inevitably entail the emergence of certain specificities and the need to create something new. The appearance of the so-called agency workers in the field of labor law opened numerous questions that needed and still need to be answered. Before agency workers and the term agency work first appeared, the employment relationship was concluded exclusively between the employer and the employee. The situation changes with the introduction of a third entity-an agency for the temporary employment of workers. Therefore, it has become necessary to define the relations between the worker and the mediation agency, the mediation agency and the user's company, and between the user's company and the worker, and to regulate these relations. The aim of the research is to determine the extent of divergence in practice between national legislations and their application with Directive 2008/104/EC on temporary agency workers. The comparative law method will show to what degree the agency work facilitates business operations for companies, users, and workers, which will answer the question of the expediency of a labor-law institute of agency work. In connection with that, and considering the closeness and inflexibility of labor legislation in Bosnia and Herzegovina, the paper will also describe the practice of incomplete incorrect interpretation of legal norms and point to a significant gap between legal regulation of a particular institute and its practical application. The author of the paper will show the danger of incorrect interpretation of norms and the repercussions that such an interpretation can have on the development and creation of rights.
Спиак рецензената

Спиак рецензената
(List of reviewers)

  • Author(s):Author Not Specified
  • Language:Bosnian, English
  • Subject(s):Law, Constitution, Jurisprudence
  • Page Range:559-575
  • No. of Pages:17
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