Зборник радова "Правне празнине и пуноћа права" Том IV
Collection of papers "Legal Gaps and the Completeness of Law" Vol IV
Contributor(s): Dimitrije Ćeranić (Editor), Radislav Lale (Editor), Svjetlana Ivanović (Editor), Đorđe Marilović (Editor), Samir Aličić (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
- Print-ISBN-13: 978-99938-57-86-0
- Page Count: 430
- Publication Year: 2024
- Language: English, Bulgarian, Romanian, Serbian
Legal Qualification of the Criminal Offense in the Light of the Principle of Legality in Domestic and International Criminal Law
Legal Qualification of the Criminal Offense in the Light of the Principle of Legality in Domestic and International Criminal Law
(Legal Qualification of the Criminal Offense in the Light of the Principle of Legality in Domestic and International Criminal Law)
- Author(s):Miodrag N. Simović, Vladimir M. Simović
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:1-23
- No. of Pages:23
- Keywords:Sources; Criminal law; Court; Criminal offense; Interpretation;
- Summary/Abstract:Criminal and other secondary laws are the fundamental source of modern national (internal) criminal law, not only in Bosnia and Herzegovina, but also in other developed countries. This approach excludes the application of unwritten (common) law, case law, or analogy in the creation of criminal law norms, even when there are legal gaps. However, these supplementary, auxiliary sources of criminal law have not lost their importance even today, both in national criminal law and in international criminal law, especially if their application is exceptional, justified, purposeful and rational, and reduced to the minimum possible extent. Namely, with the legal qualification of certain criminal offenses in specific cases by the criminal (national or international) justice bodies, situations can often arise, either with regard to the elements of being, when determining the existence of the conditions for punishment, where the application of additional sources (jurisprudence, legal science, common law rules, etc.) is absolutely necessary and justified, but always based on strict respect for the principle of legality. In the paper, the authors analyze the most significant aspects of the application of certain sources of legal norms in the legal qualification of criminal offenses (criminal matter) before criminal justice bodies in domestic and international criminal law, that is, the problems that may arise in concrete practice, and ways of solving them. In particular, the authors consider the general and specific concepts and elements of a criminal offense, the place and role of sources of criminal law, and the role of interpretation and analogy in criminal law. We consider the concepts and elements of criminal offense in international criminal law, as well as the role of interpretation and analogy among these sources, as a necessary precondition for solving this problem.
Примјена ЗООБС-а и Правилника о саобраћајним знаковима...БиХ, од утицаја на кривичне, цивилне и прекршајне поступке у БиХ
Примјена ЗООБС-а и Правилника о саобраћајним знаковима...БиХ, од утицаја на кривичне, цивилне и прекршајне поступке у БиХ
(Application of ZoOBS and the Rules on Traffic Signs...BiH, from the Influence on Criminal, Civil and Minor Proceedings in BiH)
- Author(s):Milan Vujanić, Dragan Stanišić, Veselinka Jovičić, Goran Milošević
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence
- Page Range:24-38
- No. of Pages:15
- Keywords:The Traffic Code; Priority; Unclear parts; Vienna Convention; The Regulations on Traffic Signalisation;
- Summary/Abstract:The Road Safety Act in Bosnia and Herzegovina (hereinafter referred to as the Law on the Basics of Road Safety) is unclear in some parts, so its application in court proceedings (criminal, civil misdemeanor) is difficult. It is necessary to additionally educate judges, prosecutors and lawyers on the correct application of the ZoOBS, but it would be even more important to fix and supplement the ZoOBS in the parts where problems may arise due to unclear parts of the Law and Rules on Traffic Signaling on Roads... (hereinafter referred to as the Rulebook). The work highlights the sections that lack clarity or contradict each other, resulting in their incorrect application. This paper was developed as an improved and expanded version of the presentation held at the III Misdemeanor Law Consultation, Stanišići, May 9-11, 2019. The authors believe that this topic is important and that it often appears in practice.
Пропусти приликом вршења увиђаја саобраћајне незгоде - узрок могућих проблема у судској пракси
Пропусти приликом вршења увиђаја саобраћајне незгоде - узрок могућих проблема у судској пракси
(Omissions During Traffic Accident Investigation - Cause of Possible Problems in Court Practice)
- Author(s):Milan Vujanić, Dragan Obradović, Milan Božović
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Court case
- Page Range:39-52
- No. of Pages:14
- Keywords:Investigation; Traffic accident; Omissions; Problems; Court practice;
- Summary/Abstract:Traffic accidents are a reality every day, in every country. Accidents can result in various consequences, including material damage, injuries to individual participants, and in the most severe situations, fatal consequences. In most of these situations, except when it comes to minor material damage, in which case the participants make a European traffic accident report, the authorities of the procedure - the police or public prosecutors - conduct the investigation. Official’s omissions during the investigation can create significant gaps in the subsequent criminal proceedings, whether they are criminal or misdemeanor proceedings. Essentially, these omissions can also play a significant role in civil proceedings related to damages, which take place after the criminal proceedings have reached a legally final conclusion.In the paper, the authors focused on highlighting only a few of the omissions they frequently encounter in their work judges involved, specifically those experts in the traffic technical profession, who provide expert opinions on traffic accidents in both criminal proceedings and compensation proceedings. The authors consider the discussed omissions significant for the actions of the police and judiciary, as they contribute to the efficiency of procedural authorities, particularly the courts, and reduce the costs of criminal proceedings.
Престъпността б България: перцепции и реакции
Престъпността б България: перцепции и реакции
(Crime in Bulgaria: Perceptions and Reactions)
- Author(s):Anna Mantarova
- Language:Bulgarian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Studies in violence and power, Victimology
- Page Range:53-65
- No. of Pages:13
- Keywords:Risk; Crime; Traditional crime; Victimization; Satisfaction with the state response to crime;
- Summary/Abstract:The aim of the research is to find out how crime is perceived, how its state is assessed, what are people's expectations of the state to guarantee their own safety and that of their property, how they evaluate what the state is doing in this regard and what measures they themselves take. The methods used are the analysis of statistical information and empirical information from sociological research. It was conducted in December 2022 with a nationally representative sample of the population over 18 years of age. A significant degree of victimization of the population is established, which is reflected in the estimates of the state of crime. With good reason, it is often defined as a serious problem in today's Bulgarian society. Significant groups of the population declare concern about their personal security, which obviously does not contribute to a high quality of life. People's expectations and demands for guaranteeing their inviolability are primarily addressed to the state, but according to dominant assessments, it is far from meeting their expectations and demands - a fact that also affects people's attitude towards the state - it alienates and affects readiness to fulfill civil obligations.
Примена међународноправних стандарда обавезности одбране окривљеног у праву Србије
Примена међународноправних стандарда обавезности одбране окривљеног у праву Србије
(The Application of International Legal Standards Regarding the Obligation of Defense for the Accused in Serbian Law)
- Author(s):Saša Knežević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, International Law
- Page Range:66-81
- No. of Pages:16
- Keywords:Defense; Mandatory defense; International legal acts; Will of the accused; Procedural equality;
- Summary/Abstract:Ensuring the right to legal defense should not depend on personal handicaps and the age of the accused, their ability to assess the potential penalties they are faced with, the extent of personal freedom restrictions, and other relevant circumstances for the need for expert assistance in defense. By establishing mandatory defense, the accused, as the original holder of the right to defense, forfeits the exclusive right to decide whether they will fulfill their procedural role on their own or with the assistance of defense counsel.Mandatory defense is an institution that is an integral part of the catalog of human rights prescribed by the most significant international legal documents on freedoms and human rights. This institution achieves dual equalization in criminal proceedings. The accused, who is most often in dispute with a legally educated person (public prosecutor) and whose procedural position is burdened with biological, socio-economic and legal handicaps, receives expert assistance from defense counsel regardless of their will. On the other hand, individuals with the status of the accused in criminal proceedings have an equal position regardless of their health, education, financial circumstances and similar factors. The positive legal solutions of the Criminal Procedure Code of Serbia have created a normative basis for realizing a public will among international legal standards of the obligation of defense in certain procedural situations.
Adjudicating Domestic Violence: Major Challenges. Case of Georgia
Adjudicating Domestic Violence: Major Challenges. Case of Georgia
(Adjudicating Domestic Violence: Major Challenges. Case of Georgia)
- Author(s):Lali Papiashvili
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:82-101
- No. of Pages:20
- Keywords:Domestic violence; Evaluation of evidence; Fair trial; Standard of proof;
- Summary/Abstract:“Violence against women, including domestic violence, is one of the most serious forms of gender-based violations of human rights in Europe that is still shrouded in silence. Domestic violence—against other victims such as children, men, and the elderly—is also a hidden phenomenon which affects too many families to be ignored”.1 Despite the dynamic development of digital technologies, a large number of international legal instruments and the diversity of campaigns against domestic violence, punishment of perpetrators, and adjudication of criminal justice are still challenges. Victims actively cooperate with the police and investigation, however, refuse to testify in court. Accordingly, the major challenges are connected to the use of the evidence, the primary source of which is the victim who refuses to testify, as well as the standard of proof for conviction and the prohibition to use hearsay for conviction reasons coupled with the latent nature of the crime.
Захтјев за заштиту законитости у кривичном поступку Републике Српске
Захтјев за заштиту законитости у кривичном поступку Републике Српске
(Request for Protection of Legality in the Criminal Procedure of the Republic of Srpska)
- Author(s):Mladenka Govedarica
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Criminal Law
- Page Range:102-114
- No. of Pages:13
- Keywords:Extraordinary legal remedy; Legally binding court decisions; Violations of the criminal law; Violation of the right to defense;
- Summary/Abstract:Considering the importance of the extraordinary legal remedy-the request for the protection of legality-we conclude that it is important to have it in the area of criminal procedural legislation. It appears necessary to incorporate the request for legality protection into the criminal procedural legislation of the Federation of Bosnia and Herzegovina, the Brčko District of Bosnia and Herzegovina, and at the state level. The way criminal cases are handled in the courts of Bosnia and Herzegovina, the courts in the Federation of Bosnia and Herzegovina, and the courts in the Brčko District of Bosnia and Herzegovina directly and obviously violate the basic human rights and freedoms of people who have been convicted. These include equal treatment before the law, equal access to the courts, and the right not to be discriminated against in any way when exercising and protecting those rights, as protected by the Constitution of Bosnia and Herzegovina and the European Convention on Human Rights and Fundamental Freedoms. Fundamental legal issues that used to be solved by asking for the protection of legality are now focused on the work of the Constitutional Court of Bosnia and Herzegovina. A person who has been convicted can appeal to this court because they believe they have been violated of certain human rights and freedoms protected by the Constitution of Bosnia and Herzegovina and the European Convention of Human Rights. As a result, it follows that this court does not have the jurisdiction to consider significant violations of the criminal law's provisions that are critical to the convicted person.
Претходни поступак кроз призму стандарда доказивања - норма и пракса
Претходни поступак кроз призму стандарда доказивања - норма и пракса
(Preliminary Proceedings Through the Prism of Evidentiary Standard Norms and Case Law)
- Author(s):Sadmir Karović, Marina M. Simović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Court case
- Page Range:115-131
- No. of Pages:17
- Keywords:Preliminary proceedings; Ground for suspicion; Reasonable doubt; Criminal offense;
- Summary/Abstract:This paper is focused on preliminary proceedings (investigation and accusation procedure) through the prism of meeting the standard of proof and respecting restrictive legal requirements of a procedural nature. The existence of grounds for suspicion of a certain criminal offense constitutes the material requirement for initiating and conducting an investigation, which is the first procedural phase of the preliminary proceedings. Given that the legislator did not prescribe the meaning of the evidentiary standard of grounds for suspicion in the catalog of basic terms, there is a purposeful need to draw attention to the basic determinants or definitions of this evidentiary standard, the existence of which directly depends on the initiation and conduct of the investigation. Conversely, the results of the investigation directly influence and depend on the indictment procedure, which is the second procedural phase of the preliminary proceedings. This involves conducting the investigative and evideniary actions based on the plan to gather necessary evidence, all under the competent prosecutor's management and supervision. The legislator prescribed the meaning of the term reasonable suspicion in the catalog of basic terms of the criminal procedure code but did not formulate and determine the legal nature and essence of this evidentiary standard in a substantive and precise manner. The author's intention is to look at the preliminary proceedings in a comprehensive and versatile manner, taking into account its two procedural phases through the prism of meeting evidentiary standards, and to point out certain practical problems and dilemmas.
Кратак осврт на нацрт новела у области оружја и муниције у Србији
Кратак осврт на нацрт новела у области оружја и муниције у Србији
(A Brief Review of the Draft Law's Novelty in the Field of Weapons and Ammunition i Serbia)
- Author(s):Branko Leštanin, Željko Nikač
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, EU-Legislation
- Page Range:132-152
- No. of Pages:21
- Keywords:Weapons; Ammunition; Law; Directive; Serbia; EU;
- Summary/Abstract:As a candidate for accession to the European Union, Serbia follows the policy of European integration in the field of weapons and ammunition. Thus, after the adoption of Council of Europe Directive 555/2021, Serbia decided to amend the Weapons and Ammunition Law. The subject of this paper is the analysis of the text of the Draft Law on Amendments to the Weapons and Ammunition Law published on the website of the Ministry of Interior of the Republic of Serbia. This paper aims to educate the changing occurring in the field of weapons and ammunition, the factors that influenced the legislator’s decisions, and the implications of these changes and amendments. The basic hypothesis posits that the draft’s text aligns with Directive 555/2021, serves as the primary catalyst for the amendments, and will significantly impact future criminal and misdemeanor proceedings. After the introductory remarks, there is a section on the novelty in the introductory provisions of the law, then the amendments in the area of acquisition of possession and carrying of weapons, penal provisions and transitional and final provisions.
Corupție ca factor determinat al încălcărilor drepturilor omului
Corupție ca factor determinat al încălcărilor drepturilor omului
(Corruption as a Crucial Factor of Human Rights' Violations)
- Author(s):Stela Botnaru, Veronica Pozneacova
- Language:Romanian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Human Rights and Humanitarian Law, Corruption - Transparency - Anti-Corruption
- Page Range:153-167
- No. of Pages:15
- Keywords:Corruption; Human rights; Crime; Subject; Public authority; Education;
- Summary/Abstract:Corruption is a negative phenomenon present in several spheres of social life of the Republic of Moldova. According to the statistical data presented by the National Anticorruption Center, the most affected areas include the activity of law enforcement bodies, central and local public bodies, as well as the spheres of education and public health. The systematic presence of acts of corruption directly affects respect for fundamental human rights, such as free access to justice, the right to health protection and the right to education. In this study, we analyze the status of the subjects who commit acts of corruption, the institution in which this phenomenon is present, and the citizens' perception of the impact of acts of corruption on respect for human rights. The purpose of the research is to determin the impact of the corruption on respect for human rights in the Republic of Moldova by analyzing the statistical data presented by the National Anticorruption Center, the Ombudsman Office, and the NGO.
The Right to Respect for Private and Family Life and Search as an Evidentiary Action in Criminal Procedure Legislation of Serbia - Compliance With the European Standards
The Right to Respect for Private and Family Life and Search as an Evidentiary Action in Criminal Procedure Legislation of Serbia - Compliance With the European Standards
(The Right to Respect for Private and Family Life and Search as an Evidentiary Action in Criminal Procedure Legislation of Serbia - Compliance With the European Standards)
- Author(s):Dragana Čvorović, Vince Vári
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:168-185
- No. of Pages:18
- Keywords:Right to respect for private and family life; Search of the apartment and persons; Court; European standards;
- Summary/Abstract:Contemporary, democratic states strive to achieve the principles of the rule of law, respect for international legal standards, but they also aim to reform normative framework to increase the degree to which legal solutions comply with the tendencies that are present in contemporary criminal procedural legislation and generally accepted standards in the field of human rights. On the way to improving human rights, Serbia has taken significant steps forward by reforming legal texts, adopting strategic documents, and increasing the degree of conformity of the normative framework with the legal acquis of the European Union, and with the jurisprudence of the European Court, which from decision to decision expands the subject of the protection of certain rights, especially the right to protection of one’s private and family life. Accordingly, it is necessary, through expert and critical analysis and versatility of consideration, to look at the adequacy of the normative development of international standard limitations through the evidentiary act of search in the criminal procedural legislation of Serbia. It is also necessary to examine the degree of conformity of normative solutions with European standards and make proposals with the aim of eliminating the perceived shortcomings. The authors will look at the international legal standard in question from four different angles, based on the importance and scope of the issue at hand: first, some general thoughts, second, the European Court and the right to respect for private and family life, third, how the international legal standard is limited in Serbian criminal law when it comes to searches of people and their apartments; and finally, some final thoughts.
Кривичне санкције као средство за сузбијање криминалитета
Кривичне санкције као средство за сузбијање криминалитета
(Criminal Sanctions as a Means of Curbing Crime)
- Author(s):Ljubiša Zdravković, Srđan Aleksić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:186-202
- No. of Pages:17
- Keywords:Criminal offense; Criminal sanctions; Criminal procedure; Criminality;
- Summary/Abstract:Criminal sanctions are legal measures of social reaction imposed by the court in criminal proceedings against the perpetrator of a criminal with the aim of suppressing and preventing future criminal acts. The state acting as a representative of society, applies criminal sanctions as corrective measures to the perpetrator of a criminal act, precisely due to the nature of the committed act. In essence, they serve as a reaction against the perpetrator for committing a criminal act that causes damage to society. This reaction aims to prevent the perpetrator from committing similar crimes in the future, and to influence other citizens, who may be potential perpetrators, to refrain from committing such illegal and prohibited acts.Modern criminal law recognizes several types of criminal sanctions that are different in content, nature and character of the effect. The set of all criminal sanctions provided for by positive criminal legislation is called the system of criminal sanctions. Since the system of criminal sanctions arises from the structure and dynamics of criminality, that is, social needs, it is subject to frequent changes, so it is considered the most dynamic area of criminal law.
Хапшење при извршењу кривичног дела - тзв. грађанско хапшење - ризици, опасности и дилеме
Хапшење при извршењу кривичног дела - тзв. грађанско хапшење - ризици, опасности и дилеме
(Arrest in the Commission of a Criminal Offense - vv. Civil Arrest - Risks, Dangers and Dilemmas)
- Author(s):Marko Milović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:203-217
- No. of Pages:15
- Keywords:Citizen;Arrest and risks (dangers) of arrest; Person caught commiting a criminal offence; Notifying the police or public prosecutor;
- Summary/Abstract:Provisions on vv. Civil arrests are not crucial for criminal proceedings, moreover, these provisions are objectively marginal in relation to others. It can be said that there would be no harmful consequences for criminal proceedings, nor would someone's rights be endangered, and that this kind of arrest is not foreseen. This is supported by the fact that the Code of Criminal Procedure only addresses the so-called criminal procedure in one article-citizen's arrest. However, even in this one article, there are certain dilemmas and ambiguities about how to implement this in practice. Specifically, the mere act of arresting citizens entails numerous potential risks and grave repercussions, as they may suffer severe injuries in such circumstances. We bring this up because we cannot predict the reaction of a person caught in the commission of a criminal offense, nor what he might do at any given moment to evade arrest. This paper specifically highlights these risks, along with other significant dangers that could emerge in similar circumstances.
Судска пракса није извор кривичног права у Босни и Херцеговини!
Судска пракса није извор кривичног права у Босни и Херцеговини!
(Case Law Is Not a Source of Criminal Law in Bosnia and Herzegovina!)
- Author(s):Igor Petković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Court case
- Page Range:218-228
- No. of Pages:11
- Keywords:Source of law; Principle of legality; Case law;
- Summary/Abstract:Criminal substantive law, based on the principle of legality, does not allow the filling of legal gaps. A distinction is made between analogy as a method of interpretation (from similar to similar) where there is no legal gap and analogy as an illegal way of filling legal gaps. Recent years have witnessed an intriguing trend in domestic court decision-making, where reference to court decisions serves as a foundation for explaining the decision rendered. This in itself does not have to be negatively evaluated. However, it is necessary to repeat that case law is not the source of criminal law in Bosnia and Herzegovina.
A Comparative Examination of Identity Theft Laws in Hungary and France
A Comparative Examination of Identity Theft Laws in Hungary and France
(A Comparative Examination of Identity Theft Laws in Hungary and France)
- Author(s):Dávid Tóth
- Language:English
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Comparative Law
- Page Range:229-241
- No. of Pages:13
- Keywords:Identity theft; Comparative law; Hungary; France; Regulatory framework;
- Summary/Abstract:Identity theft is an evolving criminal phenomenon that can affect individuals, societies, and economies. This comparative law article analyzes the regulatory frameworks related to identity theft in Hungary and France. The article discusses how each country criminalizes identity theft, reviewing the penalties for offenders, perpetration conducts, and the subjective side of the crime. The goal is to identify the advantages and drawbacks of the legislation in these two systems and give recommendations for lawmakers on how to improve them in the future. The research methodology consists of a comprehensive literature review, critical legislation, and legal practice evaluation. Legal practitioners, policymakers, law enforcement agencies, the academic community, government agencies, international organizations, and the general public can benefit from the insights and recommendations offered by this research.
Полицијска овлашћења и превенција криминалитета - тренутно стање и перспективе
Полицијска овлашћења и превенција криминалитета - тренутно стање и перспективе
(Police Powers and Crime Prevention - Current Situation and Perspectives)
- Author(s):Gojko Šetka, Predrag Popović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:242-266
- No. of Pages:25
- Keywords:Police power; Police; Crime; Crime prevention;
- Summary/Abstract:In the contemporary social discourse, innovative approaches to police work and new possibilities and ways of crime prevention are more and more talked about. Somehow, one gets the impression that the traditional way of police action is being quelled, and that it is no longer of greater importance for crime prevention. For this reason, we came up with the idea to analyze the correlation between the application of police powers and crime prevention in order to identify how effective the police can be in crime prevention through the application of their powers. Also, within the paper, a prediction was given regarding the near future, in the context of the police powers application, i.e. the influence of the police on crime prevention through the application of police powers and the traditional approach of police work. However, we believe that instead the neglecting the traditional approach of police work, we should innovate and modernized it, preserving its essential values. In the paper, we will analyze the parts of the research conducted that can provide clear answers to the particular questions sought in this paper. The a/m research has a special value because the sample examined refers to the police officers who are currently employed in the police agency. In this paper, the following scientific methods were used: content analysis, statistical method, inductive-deductive method and forecasting method. The basic hypothesis in this paper reads: If the police were given wider police powers, they would be more effective in crime prevention.
Судијско расуђивање и примена права у прекршајном поступку
Судијско расуђивање и примена права у прекршајном поступку
(Judicial Reasoning and Application of Law in Misdemeanor Procedure)
- Author(s):Mladen Jeličić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:267-283
- No. of Pages:17
- Keywords:Misdemeanors; Misdemeanor procedure; Judicial reasoning; Application of law; Independent and impartial court; Reasoned decision;
- Summary/Abstract:In the paper, the author analyzes the basic principles of judicial reasoning as a prerequisite for the application of law in misdemeanor procedure. Following the initial discussions, which delved into the fundamental elements of the topic from the perspective of misdemeanor law, the author highlighted the core of the law's application through the interactive resolution of factual and legal problems. We discussed the key principles of judicial reasoning and the application of law in misdemeanor procedure, emphasizing the independence and impartiality of the judge as the fundamental postulates of a fair procedure. The finalization of the mentioned process is a court decision that should be properly argued and explained. The practical implications of the judge's judgment and application of the law are seen through examples from the practice of the misdemeanor courts. The author's conclusion is that judicial reasoning and the application of law represent a unique process that should be implemented in a way that ensures fair misdemeanor procedure.
Празнине у примени новчане казне код имовинских кривичних дела у законодавству и пракси Републике Србије
Празнине у примени новчане казне код имовинских кривичних дела у законодавству и пракси Републике Србије
(Gaps in the Application of Fines for Property Offenses in the Legislation and Practice of the Republic of Serbia)
- Author(s):Gordana Nikolić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:284-303
- No. of Pages:20
- Keywords:A fine; Property crimes; Criminal code; Legislation; Court practice;
- Summary/Abstract:The Republic of Serbia's criminal legislation provides for a system of punishments that includes not only imprisonment, work in the public interest, and revocation of a driver's license, but also a daily or fixed fine. A fine is one of the oldest criminal sanctions and was created in connection with the system of composition according to which the perpetrator paid a certain amount of money to the victim or his family as compensation for the crime committed. Once the penalty of deprivation of liberty emerged, it briefly faced suppression before regaining its wider application, primarily as a replacement for short-term sentences of deprivation of liberty. Today, it is becoming somewhat abandoned, it seems to us that it has not achieved its full application, and that for some criminal acts, it should be introduced cumulatively with a prison sentence. In the paper, the author reviews some general provisions of the fine, analyzing its practical application according to property crimes where the Code does not prescribe it. However, because these crimes involve acts of self-interest, the legislator has the authority to impose the fine as a secondary punishment, in accordance with general principles of criminal law. The fact that fines for property crimes are not always fully applied suggests that they should be added to the legal punishments for crimes, either in addition to or instead of imprisonment, and that they should be used with more care and attention.
Дигитализација затворског система - корак ка будућности
Дигитализација затворског система - корак ка будућности
(Digitalization of the Prison System - a Step Toward the Future)
- Author(s):Jasmina Igrački
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Penology, Penal Policy, ICT Information and Communications Technologies
- Page Range:304-325
- No. of Pages:22
- Keywords:Prison digitalization; Future prison; More efficient treatment; Technological revolution; Crime; Resocialization;
- Summary/Abstract:The development of humanity is accelerating by geometric progression. Technology will advance within the Internet of Things, artificial intelligence will do many of the jobs that people currently do; and our bodies will be so "high-tech" that we will not be able to distinguish what is natural in us from what is artificial. The fourth industrial revolution has arrived. Digitalization will impact all segments of society, with the judiciary being one of the most significant. In this paper, we present some of the potential perspectives on the digitalization of the prison system. It is likely that the current appearance of the prison is just one stage in the development of penitentiary institutions. With the digitalization of prisons, we are entering the prison of the future, which should also be managed more efficiently. New technologies will enable better monitoring of each prisoner, both inside the prison system and outside the prison system. New technologies will enable better monitoring of each prisoner, both inside and outside the prison system.Modern technology will play a key role in solving important problems that are present in the modern prison system, such as overcrowding, high rates of recidivism, inefficient resocialization, high operational costs, a strong informal system, etc. We expect the digitalization of the prison system to provide innovative approaches to address these issues, including preventing criminals from entering traditional prisons and providing alternative solutions for a more effective crime fight.
Прикупљање и употреба електронских доказа у кривичном поступку
Прикупљање и употреба електронских доказа у кривичном поступку
(Collecting and Using Electronic Evidence in Criminal Proceedings)
- Author(s):Marina Barbir, Bojana Stanković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:326-353
- No. of Pages:28
- Keywords:Digital evidence; Illegal evidence; Device search; Criminal procedure;
- Summary/Abstract:In this paper, the authors consider the process of obtaining and legal use of electronic evidence, including its characteristics, nature and types. As the specificity of this evidence -its potential for alteration during collection or storage-influences its admissibility in criminal proceedings, ensuring its authenticity and reliability is a fundamental step in determining its legality. The emphasis in this work is on the absence of special rules in criminal procedural law and rich, but uneven, judicial practice. We arrived at the conclusion that we must adhere to the formality of the process when dealing with electronic evidence from automatic data search engines and other electronic data carriers. On the other hand, when it comes to audio and video recordings, photos and texts made by third parties, establishing their factual legitimacy and value (in the context of an overriding interest) must be our primary concern.
Рад у јавном интересу у Републици Српској - нормативни оквир и стање у пракси
Рад у јавном интересу у Републици Српској - нормативни оквир и стање у пракси
(Community Service in the Republic of Srpska - Normative Framework and Situation in Practice)
- Author(s):Ljubana Sladić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:354-372
- No. of Pages:19
- Keywords:Alternative measures; Community service; Mediator; Commissioner;
- Summary/Abstract:Community service is one of the alternative measures provided for in the Criminal Code of the Republic of Srpska. The work is socially beneficial and does not violate human dignity or aim to generate profit. This measure can be ordered by the court at the request of a convicted person who has been sentenced to imprisonment for up to one year. Essentially, the court first imposes a person sentence on the convicted individual, who then submits a request to substitute this sentence with community work. If the court decides positively to replace the prison sentence with community service, it then forwards this decision to the Ministry of Justice for further execution. The mediator, in the coordination with the commissionaire, brings forth and determines the details regarding the type and nature of the work and accompanying acts, while the court decision only determines the duration and period of measure’s execution.The paper will present and analyze the normative framework on which the community service measure is based, including all parties involved in its implementation and execution in Srpska. The current practice is not rich in examples of pronounced and executed community service, but due to the number of advantages that this sanction provides, the author sincerely hopes that in the future there will be more frequent application and execution of this alternative measure in the Republic of Srpska.
Новине у регулисању уставног положаја јавног тужилаштва са посебним освртом на самосталност
Новине у регулисању уставног положаја јавног тужилаштва са посебним освртом на самосталност
(New Amendments Regulating the Constitutional Position of the Public Prosecutor's Office With Special Impact on Its Autonomy)
- Author(s):Gordana Krstić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Constitutional Law
- Page Range:373-395
- No. of Pages:23
- Keywords:Constitutional revision; Judiciary; Public prosecutor; Autonomy; Hierarchy;
- Summary/Abstract:This paper deals with the public prosecution office in organizational and personal terms through the prism of the recent changes to the Constitution and the Law on Public Prosecution Office in the Republic of Serbia. Since the Criminal procedure code came into effect in 2011, the public prosecutor has assumed the role of leading the pre-investigation procedure and the conducting the investigation. However, in previous years, a noticeable gap existed between the new procedural powers and the normative position of the public prosecution office and public prosecutors. Amendments to the Constitution from 2022 sought to remove these disagreements while affirming the autonomy of the public prosecution office, as a judicial body, which should be a representative of justice, not the government, and an organ that will objectively, impartially and effectively prosecute the perpetrators of criminal and other punishable acts that will also protect the public interest. For the first time, the former deputy public prosecutors, thereby strengthening their position. At first glance, some changes to the constitution, like those that protect the personal independence of public prosecutors, may not seem very important when mandatory instructions are written into the law. However, these changes clearly show the direction of big changes and stress how important it is to strengthen the public prosecution while reducing centralization and interference within insitutions. With the passage of time, we should expect a strengthening of the personal independence of the public prosecutors and a weakening of hierarchical subordination, which will represent an exception in the functioning of the public prosecution and, at the same time, ensure a stable concept of the rule of law.
Диверзионе мере у систему малолетничког кривичног правосуђа Републике Србије
Диверзионе мере у систему малолетничког кривичног правосуђа Републике Србије
(Diversion Measures in the Juvenile Criminal Justice System of the Republic of Serbia)
- Author(s):Jovana Kostić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:396-414
- No. of Pages:19
- Keywords:Minors; Alternative measures; Educational orders; Court; Adequate response measures;
- Summary/Abstract:Bearing in mind the specificity of the biological, sociological and psychological characteristics of minors, it was established that they are more susceptible to accepting socially unacceptable models of behavior, and that they are prone to violent and affective reactions to external influences. This category of persons is considered particularly sensitive due to insufficiently developed, reduced and limited intellectual potentials. This is primarily due to pronounced overemphasized interpersonal and inflexible behaviors, as well as their emphasized suggestible and flexible traits. Accordingly, when prosecuting these persons as perpetrators of criminal acts, special attention and special professional knowledge of the persons participating in those proceedings is required in order to adequately approach the minor and present him with the harmful consequences of the act he has committed as well as the sanctions he must bear as a result.When expressing social condemnation for the behavior of minors deemed socially unacceptable, it’s crucial to ensure that the methods used to address them align with the minor’s personality. Therefore, when dealing with juvenile offenders, it is crucial to ensure that the entire goal of the imposed sanctions is achieved. Just like the sanctions imposed on adult perpetrators of criminal acts, the sanctions imposed on minors must influence the minor not to commit criminal acts in the future. In addition, they must influence other persons to refrain from committing criminal acts. All sanctions must be in accordance with the minor’s age, personality, life, social circumstances, the motives for committing the act, as well as his demeanor after the act. There are certain cases where the aforementioned purpose of juvenile criminal sanctions can be achieved by not initiating criminal proceedings against the minor, but by directing him to some other branches of law through the application of diversionary, informal measures in the form of educational orders. The paper analyzes the concept, content, conditions of application, characteristics, and duration of educational orders in the criminal law of Serbia as well as in countries in the region with a focus on the segment of their application in practice.
