Зборник радова "Однос права у региону и права Европске уније" Том II
Collection of Papers"Relationship Between the EU and the Law in the Region"Vol II
The scientific meeting was held at the Law Faculty of the University of East Sarajevo on October 25, 2014 in Pale
Contributor(s): Goran Marković (Editor)
Subject(s): Social Sciences, Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
- Print-ISBN-13: 978-99938-57-41-9
- Page Count: 536
- Publication Year: 2015
- Language: Croatian, Macedonian, Serbian
Опште одредбе у Закону о ванпарничном поступку и европски правни стандарди
Опште одредбе у Закону о ванпарничном поступку и европски правни стандарди
(General Provisions in the Act on Extrajudicial Proceedings and European Legal Standards)
- Author(s):Gordana Stanković, Marijana Dukić Mijatović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, International Law, EU-Legislation
- Page Range:1-16
- No. of Pages:16
- Keywords:Non-contentious proedure; European legal standards;
- Summary/Abstract:In the paper the authors presents the legal-political reasons which have motivated the legislator to change the concept and revise the rules in the Law on Amendments to the Law on Non-contentious Procedure of the Republic of Serbia (2014). Authors analyze the compatibility of the new legal solutions to the European legal standards and states that certain new legal solutions do not offer a full and adequate protection of a person.
Harmonizacija hrvatskog pomorskog prava s pravnom stečevinom Europske unije na području sigurnosti pomorske plovidbe i zaštite morskog okoliša
Harmonizacija hrvatskog pomorskog prava s pravnom stečevinom Europske unije na području sigurnosti pomorske plovidbe i zaštite morskog okoliša
(The Harmonization of the Croatian Maritime Law With European Union Law in the Fields of Maritime Safety Navigation and Marine Environment Protection)
- Author(s):Dragan Bolanča
- Language:Croatian
- Subject(s):Law, Constitution, Jurisprudence, International Law, Human Ecology, Environmental interactions, EU-Legislation
- Page Range:17-32
- No. of Pages:16
- Keywords:Republic of Croatia; Maritime Code; Acquis communitaire of the European Union; Maritime safety navigation; Marine environment protection;
- Summary/Abstract:The Republic of Croatia, as a maritime state, has a particular interest in following unification in the ordering of maritime law relation. The new maritime Code of the Republic of Croatia came into force on December 29, 2004.In mentioned act Republic of Croatia accepts new international conventions of maritime commercial and administrative law and legislates them as consistently as possible in domestic law. In the meantime, mentioned act was changed four times: in 2007, 2008, 2011 and 2013. The aim of changing was the same: following acquis communitaire in the fields of maritime safety of navigation and environment protection. In conclusion, we can say that new act represents an improvement in the development of the Croatian maritime law.
Pravo konkurencije i sloboda ugovaranja
Pravo konkurencije i sloboda ugovaranja
(The Right of Competition and the Freedom of Contract)
- Author(s):Branko Morait
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:33-49
- No. of Pages:17
- Keywords:Freedom of contract; Right of competition; Jurisprudence; Abuse of monopolistic position; Acquis communitaire;
- Summary/Abstract:In this article we shall focus on the specific restrictions of the autonomy of will which could be met in positive legal regulation of the right of competition and in the jurisprudence which arises through the application of legal norms of the competition law. The role of the case law in the interpretation of the framework of public policy is not unexpectedly emphasized. Theory is not unique when it has to define the notion of the public order for there is a whole range of theoretical definitions of this term. Therefore, one theoretical current agrees with the idea that the specification of the public order should be left to the courts, while the opposite theoretical current looks for clear legal definition, in order to deprive the courts from arbitrariness in the regulation of contractual relations. In the area of contract law, the balance between the freedom of contract and the prohibition of abuse of a monopolistic position in the market is necessary.
Правни положај друштва за ревизију. Хармонизација прописа Србије и Републике Српске са правом Европске уније
Правни положај друштва за ревизију. Хармонизација прописа Србије и Републике Српске са правом Европске уније
(Legal Status of the Auditing Companies. Harmonization of regulations of the Republic of Serbia and the Republic of Srpska with law of the European Union)
- Author(s):Ljubiša Dabić
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence
- Page Range:50-73
- No. of Pages:24
- Keywords:Auditing Company; Statutory audit; Directive 2006/43/EC; Harmonization of regulations;
- Summary/Abstract:In his work the author analyzes, on the one hand, the newly enacted legal solutions (2013) on the legal status of the auditing companies in Serbia and valid solutions in the Republic of Srpska (from 2009 as amended in 2011) and, on the other hand, he determines the degree of harmonization with relevant regulations of the European Union, primarily with Directive 2006/43/EC. In this study a comparative legal method is utilized. Legal solutions of Serbia and Republic of Srpska are compared, first to the solutions of the European Union and then sporadically with solutions of neighboring countries (Slovenia, Croatia, Macedonia, and Montenegro).The Directive 2006/43/EC stipulates that the audit might be performed by individuals as a „statutory auditors“ who are enrolled in the appropriate register, and the „audit companies“, as a legal person or any other entity,regardless of its legal form, which are authorized by the competent authority of the Member State of the EU to carry out the statutory audit.In his work the author evaluates several relevant issues, namely:conceptual definition, origination, legal form and status of the auditing companies; conditions under which companies can perform the audit;conflict of interests and independence of the auditing companies.
Концепција личних права у српском законодавству
Концепција личних права у српском законодавству
(The Conception of Personal Rights in the Serbian Legislation)
- Author(s):Miroslav Lazić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:74-90
- No. of Pages:17
- Keywords:Personal rights; General and particular personal rights; Civil law code; Republic of Serbia;
- Summary/Abstract:The author analyzes the establishment of the personal rights as subjective rights as well as enabling of the civil law regulation and the protection of the personal goods in the contemporary law. The particular issue of the analysis are the conception of the personal rights in the coming civil law code of the Republic of Serbia, as well as the relationship of the general and particular personal rights. The analysis of the comparative law as well as the personal rights in the Serbian legislation and the judicial practice, points to the need that the general part of the Serbian civil law code regulates the basic personal rights, leaving the possibility of their expansion, and indulging the working out of the particular personal rights to other laws. The civil law code has to regulate the general personal right as well as the particular basic rights, as well as the civil law protection.
Правната регулатива на сопственоста во правниот систем на Република Македонија и можностите за хармонизација со европското законодавство
Правната регулатива на сопственоста во правниот систем на Република Македонија и можностите за хармонизација со европското законодавство
(The Regulation of Ownership in the Legal System of Republic of Macedonia and the Possibilities for Harmonization With EU Las)
- Author(s):Rodna Živkovska, Tina Pržeska
- Language:Macedonian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, EU-Legislation
- Page Range:91-113
- No. of Pages:23
- Keywords:Ownership; Legislation; Harmonization; European Union; Real rights; Real estate; Property;
- Summary/Abstract:This text has shown that for the European Union it is important to create a legal system that provides successful realization of the goals and functions of the Union by harmonization and unification of European legislation. The harmonization process, as it is shown in the text, is especially important in the area of private law because of its connection with the functions of the internal market (the realization of the four freedoms – free movement of goods, services, persons and capital). The directives are primary instrument for harmonization in the area of private law. They provide minimal or full harmonization of certain elements of private law.Alongside the process of harmonization, the text shows that the European Union is also committed to the process of unification of private law. Unlike harmonization that only helps to bring together the legal system of different European countries, the unification process is directed towards creating laws that are directly applicable in the legal systems of member states. On the long run, the legal scholars consider the process of unification to be a steppingstone to the ultimate goal – the implementation of the European Civil Code.However, the opinions differ in regards to the question which parts of private law may be regulated by the European Civil Code. The prevailing opinion is that unification is possible in the area of obligations since those relations are directly linked to the functions of the internal market.Retarding the property law, the text shows that there is no real harmonization in the scope of the European Union. As main reason are listed:the differences between legal systems (common law and continental law),different legal traditions in member states and the principle lex rei sitae.The text has shown a lot of arguments made by legal scholars leading to the conclusion that harmonization in the area of property law is difficult (according to some unnecessary), but there are those that regard harmonization to be a possibility to certain extent. Such harmonization of property law may be achieved if there is a consensus that ownership is a right that needs protection on highest lever, consensus in regard of the principles of regulating property (numerus slausus, transparency, publicity, erga omnes),determining hierarchy between real rights and the creation of a “matrix” for property rights.The text shows that research of legal scholars regarding the possibilities and methods of harmonization of European Private Law, including property law, has resulted with the Draft Common Frame of References that contain principles, definitions and model-rules from different areas of private law,including the acquisition and loss of ownership on movables.As it is shown in the text, other important project directed towards the harmonization of property law is the European Union Land Information Service (EULIS). The main function of EULIS is to provide transparency in the real estate market. However, it is considered that EULIS might be the first step to harmonization of European property law in the area of real estate registration. The text has shown that the implementation of the Law of Real Estate Cadastre from 2013 in Republic of Macedonia creates the possibility for the Agency for Real Estate Cadastre to be connected to EULIS (for now only partially).The text has shown that the possibilities for harmonization of Macedonian property law with the legislation of the European Union is being analyzed by the Working Group authorized to prepare Draft of a new Law of Ownership and Other Real Rights. The Working Group was formed on part of the Ministry of Justice in 2013 and it consists of legal scholars that include the authors of this text and legal practitioners such as judges, notary public,lawyers and etc. The Working Group has given a general recommendation for harmonization of the property law, and also provided precise suggestions regarding the possibilities for harmonization such as: implementing the principles that are found in property law in European countries (priority,transparency, superficies solo credit, bona fides and etc.), new regulations on things as object of ownership, the concept of the right of ownership as indivisible right that may be exercised by one or several persons, and full implementation of the principle of numerus clausus. The general conclusion of the authors of this text is that Macedonia needs to follow the contemporary development of property law in the European Union, but the implementation of new laws in the process of harmonization should be done gradually in the Macedonian legal system when the proper economical and legal conditions are fulfilled.
Saradnja sudova i drugih organa u građanskim i trgovačkim stvarima u pravu Evropske unije u odnosu na dostavljanje pismena
Saradnja sudova i drugih organa u građanskim i trgovačkim stvarima u pravu Evropske unije u odnosu na dostavljanje pismena
(Service of Judicial and Extrajudicial Documents in the European Union Law)
- Author(s):Tatjana Zoroska-Kamilovska, Milka Rakočević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, EU-Legislation
- Page Range:114-133
- No. of Pages:20
- Keywords:Service; EU law; Judical and extrajudical documents; Transmission and reception of documents; Rejection of service;
- Summary/Abstract:When discussing the matter of cooperation between the courts and other bodies in the judicial proceedings with a foreign element, the issue of service of judicial and extrajudicial documents emerges as one of the most important. This is because service of documents is one of the most important forms of international legal aid. Until now, in the law of the European Union several normative acts had been adopted governing the matter of service of judicial and extrajudicial documents in the Member States of the European family. The subject matter of this article is the issue of service of judicial and extrajudicial documents in civil or commercial matters within the European Union under Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007. An analysis of the provisions of the Regulation (EC) No. 1393/2007 has been made concerning several issues regarding the transmission and service of judicial and extrajudicial document in the Member States of the European Union.
Продужење родитељског права у поступку продужења
Продужење родитељског права у поступку продужења
(Extension of Parental Rights and Procedure for the Extension of Parental Rights)
- Author(s):Ljubica Mandić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Family and social welfare
- Page Range:134-144
- No. of Pages:11
- Keywords:Parental rights; Extension of parental rights; Procedure for extension of parental rights;
- Summary/Abstract:New amendments in our Law on non-contentious procedure approved in 2014 brought significant changes in procedure for the extension of parental rights. Most important of those changes refers to concept of legal institute itself. Now this institute is harmonized with our Constitution, UN Convention on the Rights of Persons with Disabilities and Recommendation of the Committee of Ministers to Member States on principles concerning the legal protection of incapable adults. Besides, in fourth part of this legal act now there are three special non-contentious proceedings that refer to the extension of parental rights. In this article we present and analyze those amendments in our non-contentious system.
Римско антимонополско законодавство
Римско антимонополско законодавство
(Roman Anti-monopoly Legislation)
- Author(s):Samir Aličić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:145-155
- No. of Pages:11
- Keywords:Roman law; Monopoly; Competition law; Commercial law; Aristotle; Zeno; Lex Iulia annona;
- Summary/Abstract:The subject of the research are the rules of Roman law that restrict or prohibit monopolies. The paper first gives a brief overview of the emergence of the term „monopoly“ in ancient Greece. Then, it describes the various regulations which prohibited the elimination of competition and price fixing of goods and services in ancient Rome, from lex Iulia de annona from the beginning of the new era to the constitution of the emperor Zeno from 483.Also, the author refers to the connection of the Roman and modern law,pointing out that some of the basic concepts and institutes of modern antitrust laws of the European Union are established in Roman law.
Имуност арбитраже на политичке прилике
Имуност арбитраже на политичке прилике
(Arbitration Immunity Regarding Social and Political Circumstances)
- Author(s):Jelena M. Belović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Public Law, Politics and law
- Page Range:156-169
- No. of Pages:14
- Keywords:ICC; "Trepca" company; UNMIK Regulations; The Moratorium Decision; Amicus curiea; Insolvency;
- Summary/Abstract:The Award of the International Chamber of Commerce (hereinafter:Arbitration) in the case No.16369/GZ from 27. April 2011, is interesting not only because of the fact that one of the actors is Trepca company engaged in mining and smelting, which is now re-registered as Trepca Enterprise under Kosovo Trust Agency Administration (founded by United Nations Mission In Kosovo Administration). Nonetheless, in this arbitral proceeding, there were more than one Respondent’s requests to point of lack of the Arbitration Jurisdiction on the ground of social and political circumstances.However, the Arbitration notes that it shares the modern view that state-owned or government-controlled enterprises must not be allowed to shield themselves against claims from creditors by involving public law induced impediments with a view to excusing themselves from not living up to their commercial commitments. There is one more interesting point in this case, since the public-law limitations derives not from a state, but from international community. As a matter of fact, there is a „hybrid“ model of public-law limitations, since some of limitations could be attributed to international community, and some of them plays role only on the local level.
Потпуно vs. непотпуно усвојенје
Потпуно vs. непотпуно усвојенје
(Full vs. Partial Adoption)
- Author(s):Dimitrije Ćeranić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence
- Page Range:170-183
- No. of Pages:14
- Keywords:Full adoption; Partial adoption; European Convention on the Adoption of Children;
- Summary/Abstract:The author analyses the forms of full and partial adoption in the domestic and comparative laws. In some legal systems there is only full adoption,while the others know also the partial adoption. The paper contains review of the positive law of the former Yugoslav republics as well as the law of some European states. Beside the national legislation, few international acts which regulate the adoption have been analyzed. The author points to the fact that the revised Convention of the Council of Europe on the adoption of children from 1967 has given the right to the states to provide norms for the patterns of adoption with more limited effects than the full adoption. In this way, it is possible that the monism of the full adoption is not the only way of development of the European legislations. The author uses historical, normative, and comparative methods. Discussing about (dis)advantages of legal solutions in the analyzed legal systems, the author has suggested the way of development of the former Yugoslav republics legal systems. The conclusion is that there are many reasons for the existence of both full and partial adoption.
"Постконфликтно уређење" одржаја на Косову и Метохији-ка поразу права прогнаних лица и "легализацији"противправних аката узурпатора?
"Постконфликтно уређење" одржаја на Косову и Метохији-ка поразу права прогнаних лица и "легализацији"противправних аката узурпатора?
("Post-Conflict"Acquisition of Property Through Prescription in Kosovo and Metohia-to Defeat of the Refugees' Rights and Legalization of the Illegal Acts of Usurpers)
- Author(s):Duško M. Čelić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law
- Page Range:184-205
- No. of Pages:22
- Keywords:Kosovo and Metohija; Refugees; "The law of ownership and other real rights"; "Post-conflict" situation in Kosovo and Metohija; Acquisition of property through prescription; Bona fide possession;
- Summary/Abstract:Violence against property, which in Kosovo continues to be made and in terms of the “post-conflict peace“, through the activity of quasi-governmental institutions, favors and systematic encroachment on property-legal relations to real estate through „normative“ activities of self-proclaimed authorities in the province. The Law on Property and Other Real Rights, adopted by the Kosovo Assembly in 2009, changed the rules on acquisition by prescription by altering the requirements of bona fide and lawful possession existing under the previously applicable law. The long absence of the rule of law,mass usurpation of real estate of refugees from Kosovo and Metohija, the lack of continuity of keeping the public registers and storing collections of documents and difficult or impossible access to justice for the greatest number of refugees, some of the reasons for the critical attitude towards these authors "provisions“. Bearing in mind the relevant international and domestic legal standards for the protection of human rights of displaced persons, we believe that ‘the provisions’ of the possession, flung open the door for legalization violent established the factual situation on the real estate of refugees from Kosovo and Metohija.
Мјеродавно право за тестаментарну способност оставиоца: рјешења у Републици Српској, региону и праву Европске уније
Мјеродавно право за тестаментарну способност оставиоца: рјешења у Републици Српској, региону и праву Европске уније
(The Applicable Law to Capacity to Dispose of Property Upon Death: Solutions in the Republic of Srpska, Region and the Law of European Union)
- Author(s):Dragana Damjanović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, EU-Legislation
- Page Range:206-226
- No. of Pages:21
- Keywords:Capacity to dispose of property upon death; Applicable law; Law of nationality; Law of habitual residence;
- Summary/Abstract:In the case of testamentary inheritance with a foreign element, the court at the beginning of the probate process, shall determine whether the testator had a capacity to dispose of property upon death. It is necessary, therefore,to determine the applicable law according to which one has to appreciate a capacity to dispose of property upon death of decedent. In the Republic of Srpska this issue is governed by the Law on Resolving Conflict of Laws with Regulations of Other Countries – Private International Law, which has been in force for three decades. Republic of Srpska took over this legal act from the legal system of the former Yugoslavia. The other member of our former country did the some thing, which has recently enabled the identical provisions in the former Yugoslavia. However, under the influence of European Union Law, in particular the EU Regulation 650/2012 on inheritance, the situation is changing. Thus, Montenegro a new Private International Act, which is in the force, since January 2014 and governs inheritance with foreign element completely different. The capacity to dispose of property upon death also is regulated differently in the Republic of Serbia, the procedure for the adoption of the new codification is already in progress. The author will hereafter endeavor to carry out a comparative analysis of legal solutions in terms of determining the law applicable to capacity to dispose of property upon death of the testator in the Republic of Srpska, in the region and in EU law.
Финансијско извјештавање привредних субјеката
Финансијско извјештавање привредних субјеката
(Financial Reports of Business Entities)
- Author(s):Damjan Danilović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Law on Economics
- Page Range:227-236
- No. of Pages:10
- Keywords:Financial reporting; Business subjects; Regulation;
- Summary/Abstract:Financial reporting is one of the most important institutes of company transparency. There is neither rule of low nor market economy without good conception in this area. Different changes of market opportunities influence the constant dynamics in the field of financial report. The author of this paper deals with the term institute of reports and presents the regulation of the European Union regarding this issue as well as the regulations in Bosnia and Herzegovina.
Улога нотара у средњовјековном Дубровнику
Улога нотара у средњовјековном Дубровнику
(The Role of Notaries in the Medieval Dubrovnik)
- Author(s):Mirjana Pupić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, History of Law, Middle Ages
- Page Range:237-248
- No. of Pages:12
- Keywords:Middle Ages; Dubrovnik; Notary; Notary books; Testament;
- Summary/Abstract:Development of the notary institution in Dubrovnik has been presented within this document, covering period from its very beginning until the period of contemporary notaries. These information are based on the published and unpublished sources from the National Archives in Dubrovnik. At the beginning of the work it is given a brief overview of the notary institution development in European regions, particularly in Italy, which had the greatest impact on Dubrovnik’s notary office. Then, the author enters into the issue of Dubrovnik’s notary where elaborates various aspects related to notaries such as the appearance of the first notary, origin, and their role in the preparation of testaments. Special attention was paid to the analysis of various provisions of the notary institution which are contained in the basic source of Dubrovnik’s law, Statutarum civitatis Ragusii.
Начело економичности и право на суђење у разумном року у парничном поступку Републике Србије
Начело економичности и право на суђење у разумном року у парничном поступку Републике Србије
(The Efficiency Principle and the Right to Trial Within a Reasonable Time in the Civil Procedure Law of the Republic of Serbia)
- Author(s):Darija Marić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, EU-Legislation
- Page Range:249-272
- No. of Pages:24
- Keywords:Right to trial within a reasonable time; European Convention on Human Rights; The efficiency principle; Civil procedure law; Effective legal remedy;
- Summary/Abstract:The efficiency principle encompasses the obligation by all parties to achieve satisfactory legal result by using such resources as time, labor and money in an efficient manner.The goal is to reach both lawful and just decision using in a rational and expeditive way. This principle is in wrought in the entire concept of civil procedure, and is further developed by a number of individual regulations.The right to a trial within a reasonable time is a party’s right to efficient legal protection, which implies legal disputes should be solved without excessive delay. This basic human right is guaranteed by Article 6 Para 1of the European Convention on Human Rights, as well as Article 32 Para 1of the Constitution of the Republic of Serbia. The same legal acts provide for the right of an effective remedy as well as the judicial protection of this right in case that it has been violated. The right to an expeditive trial has been formulated as one of the basic provisions in the Civil Procedure Code in 2004 and then again in 2011. However, the Civil Procedure Code does not envisage any specific legal remedies for the case in which the right to a trial within a reasonable time has been violated. In that case, the parties at the national level were entitled to submit an appeal to the Constitutional Court.The amendments of the Law on Seats and Territorial Jurisdiction of Courts and Public Prosecutors Offices in 2013 introduced the legal protection of the right to a trial within a reasonable time. Namely, the part can submit two requests: one to accelerate the process and the other for an equitable renumeration. The procedure is urgent, and the Court’s decision can be appealed. However, in the light of numerous applications in front of the European Court on Human Rights, claiming that the Republic of Serbia has violated this right, after a public debate the Ministry of justice of Republic of Serbia submitted a Draft Protection of the Right to a Trial Within Reasonable Time Act in 2014. The Draft envisages three legal remedies for the ase in which the right to a trial within a reasonable time is violated: 1) request to accelerate the process, 2) file a complaint, and 3) request an equitable remuneration.
Концентрација привредних субјеката стицањем контроле у праву Босне и Херцеговине
Концентрација привредних субјеката стицањем контроле у праву Босне и Херцеговине
(Concentration of Undertakings Acquisition Control of Bosnia and Herzegovina)
- Author(s):Đorđe Perišić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Civil Law, Law on Economics, EU-Legislation
- Page Range:273-295
- No. of Pages:23
- Keywords:Competition law; Concentrations of economic entities; Gaining control over the undertaking; The basic capital; The management contract of the company;
- Summary/Abstract:Concentration of undertakings acquiring control or dominant influence of one or more undertakings over another or more other undertakings or parts thereof, is a complex legal institution that encompasses various ways of achieving concentrations. When the concentration of economic entities implemented through acquisition of control, economic entities – parties to the concentration do not lose their legal, but lose their economic independence,and it is not always clear whether control exists or does not exist. A key criterion for the occurrence of concentration is whether a company acquirer of control has a decisive influence on the management of the controlled company. The most common means by which this is achieved are gaining share in the equity of the controlled companies and the conclusion of various contracts, which directly or indirectly result in control of the management of the company. The legal framework for the assessment of whether there is a burning appliances or chimneys in the first row is set by the Law on Competition BiH. For the assessment of the existence of exceptional importance have control laws governing companies or enterprises in Bosnia and Herzegovina,there are three such: the Law on Companies of the Republic of Srpska and the Federation of BiH and the Law on Enterprises of Brcko District. The European legislation concentrations are regulated by Council Regulation Eu No 139/2004 on the control of concentrations between undertakings. For the assessment of the existence of concentration is significant and the Eu Commission Notice on the concept of concentration.
Права лица лишених слободе: међународни стандарди и новија пракса Уставног суда Босне и Херцеговине
Права лица лишених слободе: међународни стандарди и новија пракса Уставног суда Босне и Херцеговине
(Rights of Persons Deprived of Liberty:International Standards and More Recent Case-Law of the Constitutional Court of Bosnia and Herzegovina)
- Author(s):Miodrag N. Simović, Milena Simović, Vladimir M. Simović
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Human Rights and Humanitarian Law
- Page Range:299-320
- No. of Pages:22
- Keywords:Arrest;Detention;The Constitution of Bosnia and Herzegovina;The European Convention Of Human Rights and Fundamental Freedoms;The Constitutional Court of Bosnia and Herzegovina;The European Court of Human Rights
- Summary/Abstract:Rights guaranteed to all persons deprived of liberty are established,primarily, in Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Constitutional Court of Bosnia and Herzegovina emphasized in several of its decisions that the right to liberty of person is one the most important human rights and that Article 5 of the European Convention grants protection that no person can be deprived of liberty arbitrarily. Arbitrariness of deprivation of liberty is evaluated,primarily, in relation to compliance with procedural requirements of the laws which are applied in the given case but with compliance, at the same time,of standards under Article 5 of the European Convention. The fundamental principle is that detention which is arbitrary cannot be associated with Article 5 paragraph 1 of the European Convention and that the term „arbitrariness“under Article 5 paragraph 1 of the European Convention extends further than the very non-compliance of national law so that the deprivation of liberty can be legal within the meaning of national law but still arbitrary and in contravention with the Convention.European Convention imposes on a contracting state a positive obligation to thoroughly investigates allegations on intentional deprivation of liberty even in cases in which it cannot be established that the deprivation of liberty may be assigned to the authorities. In addition, person seeking compensation under Article 5 paragraph 5 of the European Convention must be a victim of a violation of some of the paragraphs 1-4 of Article 5 of the European Convention. Otherwise such person would not be entitled to compensation under Article 5 paragraph 5 of the European Convention. Under the case-law of the European Court of Human Rights, the very fact that a person that was detained is subsequently acquitted by court decision, does not make arrest illegal with retroactive effect.
Насиље у породици
Насиље у породици
(Family Violence)
- Author(s):Dragan Jovašević
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Criminology, Studies in violence and power, Family and social welfare, EU-Legislation
- Page Range:321-332
- No. of Pages:12
- Keywords:International standards; Law; Family violence; Criminal offence; Responsibility; Punishment;
- Summary/Abstract:Based on the adopted international standards which are part of numerous documents of universal and regional international organizations (Council of Europe, European Union) by adopting new criminal regulation in 2005 and its updating in 2009 and 2011 respectively, Republic of Serbia has prescribed family violence as a separate criminal offence. Providing criminal responsibility and punishability for the most severe forms of violence among relatives Serbia approached in this way numerous other legal and social systems. The paper analyses the international standards of the European regional organizations and their implementation in the criminal legislation of Serbia from the theoretical and practical aspects.
Психолошки приступ етиологији насилничког криминалитета-"рани радови" и каснија проучавања
Психолошки приступ етиологији насилничког криминалитета-"рани радови" и каснија проучавања
(Psychological Approach to Etiology of Violent Crime-"Early Works" and Later Studies)
- Author(s):Vladimir V. Veković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Psychology, Criminal Law, Criminology, Studies in violence and power
- Page Range:333-350
- No. of Pages:18
- Keywords:Violent crime; Psychological characteristics of personality; Aggressiveness; Violence; Psychological theories;
- Summary/Abstract:Psychological theories have in common that violent crime is definitely interpret the psychological characteristics of personality, thereby disenfranchising or completely ignoring the importance and influence of social factors. For these reasons, among them are often observed psychologism and psychologizing. Taking only one side of the crimes for their whole(pars pro toto) leads to the etiological explain it as merely a psychological phenomenon. Try to get a limited number of facts build adequate scientific theory proved to be ineffective, and if its appearance persisted, practical assessment did not provide convincing evidence in support of their accuracy,which is why they usually remain at the level of hypothesis.Recognizing that the absolute psychological characteristics of personality unacceptable psychologically oriented authors today tend to certain types of criminal behavior linked to the relevant psychological characteristics of the offender. In doing so, one must not disregard the influence of the environment on the formation of the personality of offenders, and that personality traits and external factors act simultaneously and intertwined,which is why only conditionally be separated. Personality is not autonomous in relation to the social context; on the contrary, man and society are closely linked, interdependent and permeate entities. Man necessarily occurs in society (on his subjective totality, it carries in itself, of course, not as a simple reflection of the experience, but as revised), a society can not exist without man and independent of him. Given that the whole of human activities is an unbreakable unity of objective and subjective, social and personal, it is necessary to examine the complex relationships the individual - group -society and the contradictions in them, often trying some of these offenses.Only such an approach can aspire to a more complete explanation of violent crime, which was for many years a very serious problem in the European Union and Republic of Serbia.
Krivičnopravna zaštita životne sredine
Krivičnopravna zaštita životne sredine
(Environmental Protection Through Criminal Law)
- Author(s):Branko Vučković, Vesna Vučković
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Human Ecology, Penal Policy
- Page Range:351-365
- No. of Pages:15
- Keywords:Environment; Environmental protection; Legal regulation; Penal legislation;
- Summary/Abstract:The right to healthy environment is the basic human right guaranteed by the Constitution of Montenegro, which is by some formal criteria on high scale of constitution practice of states in the process of transition, and beside this it doesn’t represent the same level of goals and it doesn’t reach functional ensurence of realization of these laws, according to the basic law documents of European union.According to the European union documents, environmental protection is determined by the degree of “high level of protection”, which is not clearly regulated in the Constitution of Montenegro, including the fact that Montenegro is declared as “ecological state”. The level of law guarantee to healthy environment depends on legal nature of law that order this issue, but not only on legislative framework, but also on the consciousness of an individual,states and organizations that enforce these laws. Therefore it is necessary that sanctioning of an individual and of a state, in the case of environmental degradation should be prescribed clearly, respectively its protection has to be ensured, quality improved and promote measures constantly which a state has to apply in the case of its pollution incidents, also the responsibility of state that is considered responsible according European union regulations,no matter how its regulations are. Ecological politics of European Union follows ecological consciousness and as a result the protection and improvement of natural environment increasingly comes first in making European Union legal regulations.Montenegro as an applicant for membership in European union undertakes measures in order to coordinate its regulations to regulations of European Union which say that “high level of environmental protection” is one of the crucial legal principles.
Усклађеност кривичног законодавства са законодавством ЕУ у супротстављању организованом криминалу
Усклађеност кривичног законодавства са законодавством ЕУ у супротстављању организованом криминалу
(Compliance of Criminal Legislation With European Union Law With Regard to Combating Organized Crime)
- Author(s):Uroš Pena, Nataša Sikimić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Human Rights and Humanitarian Law, EU-Legislation
- Page Range:366-387
- No. of Pages:22
- Keywords:Criminal legislation; Organized crime; Human rights; The rule of law;
- Summary/Abstract:Criminal procedure in Bosnia and Herzegovina has been significantly reformed since 2003, when the new Criminal procedure law of B&H was adopted, as well as criminal procedure laws of the entities and District of Brcko. On the one hand, strongly influenced by the European Court of Human Rights practice, legislature tended to strengthen the guarantee of fair proceeding. On the other hand, due to expansion of international organized crime, and with regard to obligations arising from ever numerous international treaties, legislature strive to enhance more efficient criminal procedure by, among other means, strengthening prosecutor’s role. Thus,B&H has followed a trend established during the previous decades in legal systems of civil law tradition.Present Criminal procedure law of B&H has been subject to numerous amendments since it was enacted up to present day. There have been legal reforms which were intended to balance, on the one hand, the need to improve criminal procedure efficiency and, on the other hand, to protect fundamental rights of the suspect, or accused, concerning the need to accord to international law, and to European Convention on Human Rights and European Court of Human Rights practice in the first place.
Pravni okvir Evropske unije protiv organizovanog kriminaliteta
Pravni okvir Evropske unije protiv organizovanog kriminaliteta
(Legal Framework of the European Union Against Organized Crime)
- Author(s):Mile Šikman
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Criminology, EU-Legislation
- Page Range:388-407
- No. of Pages:20
- Keywords:Legal framework; European Union; Organized crime; Recommendation; Resolution; Action plan;
- Summary/Abstract:The European Union has faced the problem of organized crime since its creation in the 1990’s (The Maastricht Treaty) and it has become an ever increasing threat to the security of Member States, and thus affects European Union's activities and policies. As the risk from organized crime had become greater, the Member States developed a stronger response to organized crime. The integrated approach guiding the action of the European Union extends from prevention to law enforcement, including cooperation of Member States, especially the law enforcement agencies, the exchange of information,cooperation between joint work groups, etc. The legal framework of the European Union against organized crime plays the most important role.In addition, the European Union is a pioneer in developing an all-inclusive criminal justice response to organized crime, and through its instruments has to a great extent contributed to the global fight against organized crime. In that sense many standards and policies have been adopted, in particular with the aim of harmonizing the international framework and legal regulations of Member States in the fight against organized crime. The basic instruments of the European Union that deal with the problem of combating organized crime will be presented in the paper, including The Stockholm Programme(2010) and The Action Plan (2010-2014), The Framework Decision of the European Union on the Fight Against Organized Crime (2008) and other decisions (2002, 2003, 2005, 2006, 2007, 2008, 2009), as well as strategies(2000, 2003, 2005, 2010), joint action (1996, 1998), action plans (1997,2000), conventions (1995, 2009), resolutions (1996, 1998) and EU communications(2000, 2004, 2005, 2007).
Pravo žrtve da zahtijeva kontrolu nepokretanja kaznenog postupka prema čl. 11. Direktive o minimalnim pravima žrtava i usklađenost bosanskohercegovačkog i hrvatskog prava
Pravo žrtve da zahtijeva kontrolu nepokretanja kaznenog postupka prema čl. 11. Direktive o minimalnim pravima žrtava i usklađenost bosanskohercegovačkog i hrvatskog prava
(Victims' Right to Review in the Event of a Decision Not to Prosecute Under Article 11th of the directive 2912/29/EU and Compatibility of Bosnian-Herzegovinian and Croatian Law)
- Author(s):Ante Novokmet
- Language:Croatian
- Subject(s):Law, Constitution, Jurisprudence, Victimology, EU-Legislation
- Page Range:408-430
- No. of Pages:23
- Keywords:Victim; Injured person; Subsidiary prosecutor; Directive 2012/29/EU; Review of a decision not to prosecute;
- Summary/Abstract:Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime came into force on 25 October 2012. These rules have established minimum rights of victims in the whole territory of the European Union, including proper support, information and protection. The EU’s Member States have until 16 November 2015 to implement the European provisions in their national laws but the obligation is also imminent for countries that are on the road to EU membership. Therefore this paper discusses the right to a review of a decision not to prosecute under article 11th Directive 2012/29/EU, and presents comparative solutions in Germany and Italy. In the paper author analyses the degree of alignment of Bosnian-Herzegovinian and Croatian law with the article 11 of the Directive, and makes final evaluation regarding compatibility of the Bosnian-Herzegovinian and Croatian legal system with the requirements of the Directive 2012/29/EU in the light of victims’ rights in the event of a decision not to prosecute.
Примена и одмеравање казне малолетничког затвора
Примена и одмеравање казне малолетничког затвора
(Enforcement and Sentencing Juvenile Prison)
- Author(s):Dragan Blagić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminology, Penal Policy
- Page Range:431-444
- No. of Pages:14
- Keywords:Juvenile prison; Sentence; Juvenile offender;
- Summary/Abstract:General rules on sentencing juvenile detention refer to all those circumstances that influence the sentence, firstly, in the context of its overall minimum and maximum general, and within the limits prescribed punishment for an offense. The use of mitigating and aggravating circumstances, in addition to specific, causes the minor offender in determining take into account all the circumstances surrounding that may affect the sentence to be lower or higher. One circumstances affecting juvenile offender to impose a more lenient sentence within the general minimum and maximum overall juvenile prison, called mitigating circumstances while affecting to impose stricter punishment as an aggravating.All of mentioned circumstances are those that re the most common, the most typical and that, objectively speaking, the most significant factors in determining the penalties in general and juvenile prison. In this regard, it is necessary to expose how and what significance given the circumstances in sentencing juvenile prison, in order to finally achieve the proper purpose of punishment.
Електронски надзор у кривичном законодавству Републике Србије и усклађеност са актима Савета Европе
Електронски надзор у кривичном законодавству Републике Србије и усклађеност са актима Савета Европе
(Electronic monitoring in Criminal Legislation of Republic of Serbia and Compliance With Acts of the Council of Europe)
- Author(s):Zdravko Grujić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, Penal Policy
- Page Range:445-460
- No. of Pages:16
- Keywords:Alternative criminal sanctions and measures; Electronic monitoring; home detention; House arrest;
- Summary/Abstract:The criminal legislation of the Republic of Serbia is directed, in recent years, toward prescribing and implementing alternative criminal sanctions and measures. The emergence and development of alternative criminal sanctions is an attempt of humanization of the existing penal system and rational response to certain forms of criminal behavior. By the adoption of the Law on Execution noncustodial sanctions and measures, in 2014,Republic of Serbia completed the legal framework for the implementation of alternative criminal sanctions and measures.In this paper, the author pays attention to the implementation of electronic monitoring in controlling freedom of movement of the accused or convicted person, ie, forms and electronic surveillance during the execution of alternative criminal sanctions and measures. Especially, author is considering the compliance of Serbian legal norms with the acts of the Council of Europe which regulate this area.
Основни принципи кривичноправне сарадње на простору Европске уније
Основни принципи кривичноправне сарадње на простору Европске уније
(Basic Principle of the Criminal Law Cooperation in the European Union)
- Author(s):Milijana Buha
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law, EU-Legislation
- Page Range:461-473
- No. of Pages:13
- Keywords:Principle of mutual confidence and recognition of judicial decisions in the criminal law; Implementation of the institute of surrender;
- Summary/Abstract:Implementation of the principle of mutual confidence and recognition of judicial decisions in the criminal law originates from the Preamble of the Council Framework Decision on the European arrest warrant and surrender procedures between Member States. The institute of the surrender implementation, which became a part of the international criminal law assistance through the above mentioned framework decision, is not possible without mutual recognition of judicial decisions between the Member States.Having in mind „legal dependence“ regarding the implementation of the institute of surrender, the author analyses legal aspects of the above mentioned principle. The author also dedicates the attention to the implementation of the Council Framework Decision on the European arrest warrant and surrender procedures between Member States, with particular emphasize on some Member States.
Утврђивање чињеница у реформисаном кривичном поступку
Утврђивање чињеница у реформисаном кривичном поступку
(Determination of Facts in the Reformed Criminal Procedure)
- Author(s):Ivan Ilić
- Language:Serbian
- Subject(s):Law, Constitution, Jurisprudence, Criminal Law
- Page Range:474-493
- No. of Pages:20
- Keywords:Legally relevant facts; Facts of the criminal case; Determination of the facts; Adversary trial;
- Summary/Abstract:The main characteristic of the new Code of Criminal Procedure, 2011,which is based on adversial principle, is changed position of the main subjects. The public prosecutor gets more active role. He is head of the pre-investigative procedure and the investigation. At trial, the role of the parties is emphasized, while the role of the court is passivated. The Court adjudicates and manages the process, while in the presentation of evidence,for the proper and complete determination of the facts, his role significantly diminished. The court is not obliged ex officio to determine the truth, and the principle of truth is omitted from the basic principles of criminal procedure. Evidentiary initiative is, largely, up to the parties, while тхе court granted subsidiary role.Basis of the work is the thesis that the Code of Criminal Procedure from 2011, based on the truth principle, which is also the goal of the procedure.In fact, while working on the development of the legal text, and after the adoption, to the beginning of its application in full range, in professional community there were lots of papers, which cast doubt on the principle of truth existence, in the currently valid procedural law of Serbia. Although this principle is not actually explicitly stipulated in the text of the new CPC, the author proves his existence by analyzing of certain provisions of the law,which has significantly altered the position of the main criminal procedural subjects, in terms establishing the facts in criminal proceedings. The author argues that the truth about a criminal matter remains the highest goal of the procedure, despite the fact that the concept of criminal proceedings is set on the adversial model of criminal proceedings.
Tumačenje načela ne bis in idem - interakcija Europskog suda pravde i Europskog suda za ljudska prava nakon stupanja na snagu Lisabonskog ugovora
Tumačenje načela ne bis in idem - interakcija Europskog suda pravde i Europskog suda za ljudska prava nakon stupanja na snagu Lisabonskog ugovora
(Interpretation of the ne bis in idem Principle - Interaction Between the European Court of Justice and the European Court of Human Rights After the Lisbon Treaty Entered into Force)
- Author(s):Marina Gutschy
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence, Human Rights and Humanitarian Law, EU-Legislation
- Page Range:494-514
- No. of Pages:21
- Keywords:Ne bis in idem principle; European Court of Justice; European Court of Human Rights;
- Summary/Abstract:When Lisbon Treaty entered into force, the Charter of Fundamental Rights of the European Union became binding legal instrument (hereinafter:the Charter). There are numerous provisions of the Charter dealing with criminal law matters. Among them, ne bis in idem principle is of special importance in the context of establishing and developing European Union as an area of freedom, security and justice. Except in the article 50 of the Charter,provisions on ne bis in idem principle in the criminal law of the European Union can also be found in articles 54–58 of the Convention on Implementation of Schengen Agreement (hereinafter: CISA).What is the relationship between these two provisions and ne bis in idem principle contained in Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention,ECHR)? The Charter itself states that, in so far as the Charter contains rights which correspond to rights guaranteed by the Convention, meaning and the scope of those rights shall be the same as those laid down by the said Convention. In that respect, the aim of this article is to examine, whether there exists, and if the answer is affirmative, to what extent, interaction between the European Court of Human Rights (hereinafter: the Strasbourg Court, ECtHR) and the European Court of Justice (hereinafter: the Luxembourg Court, ECJ) when interpreting ne bis in idem principle and its elements(bis, idem). After introductory remarks regarding substance and rationale of the principle we will give an overview of legal instruments containing provisions on ne bis in idem principle with analysis of their differences and interplay between them. The main part of this article is focused on giving detailed review of post-Lisbon case law of the ECJ about ne bis in idem principle(cases Hans Åkerberg Fransson, Zoran Spasić and Procura della Republicav. M). Judicature of the ECtHR on the said principle will also be examined with some concluding remarks regarding the influence of the two Courts on one another when interpreting ne bis in idem principle.
Унакрсно испитивање у светлу типа кривичног поступка
Унакрсно испитивање у светлу типа кривичног поступка
(Cross-Examination in Light of Criminal Procedure Type)
- Author(s):Nikola Vuković
- Language:Serbian
- Subject(s):Social Sciences, Law, Constitution, Jurisprudence
- Page Range:515-536
- No. of Pages:22
- Keywords:Criminal procedure law history;Criminal procedure law systems;The principles of truth;Witnesses;Cross examination
- Summary/Abstract:The subject of this paper will be the law institute – cross examination as well as the certain law and life consequences that follows its introduction in Serbian criminal procedure. As any other phenomenon in society (and in nature), this one also demands more comprehensive intro, especially in such a dynamic sphere as is the one in which it pretends to enter. For that reason it is inevitable to point primarily on some current movings in criminal procedure law systems, some questions of process history, organization of investigative procedure, and also find out where is the right place for main procedural subjects. The author finds these questions to be of crucial significance to finding an answer where the mutated “procedural evolution” can lead and whether the criminal justice has become a goal to itself.
