Series:Fondacija Centar za javno pravo - Analize

Transplantation and trade in human organs, tissues and cells - international legal and national normative framework

Transplantacija i trgovina ljudskim organima, tkivima i ćelijama – međunarodnopravni i nacionalnopravni normativni okvir

Author(s): Tijana Šurlan / Language(s): Serbian

Keywords: Public law; human organs; transplantation; trafficking; normative framework; national law; international law; criminal law; Republic of Serbia;

In the paper the author analyses normative framework of transplantation and trafficking in human organs, tissues and cells. The focus is on the International Public Law instruments, both universal and regional (Europe as a region) and on the Serbian national legislation. Starting point in the elaboration is that medicine and biomedicine are marked with the intense growth in the area of transplantations, stem cells, artificial organs development. On the other hand, law is not complementary developed as to cover all possible illegal actions. While there is a crime trafficking in human organs recognized as the manifestation of trafficking in human beings, there is nowadays recognised phenomenon of trafficking in human organs, tissues and cells as separate crime. Concluding remarks, thus, summarizes the optimal proposals for further development of both international and national law.

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Prohibition of Denial of Genocide in the EU, BiH and the Region: Comparative-Legal Overview

Zabrane negiranja genocida u EU, BiH i regionu: komparativno-pravni pregled

Author(s): Lamija Muftić / Language(s): Bosnian

Keywords: BiH; EU; region; Balkans; genocide; denial prohibition; legal overview; freedom of speech; rights and freedoms; democracy; criminal law;

Sloboda govora, kao osnovna ljudska sloboda, jedan je od temelja demokratskog društva. Ova sloboda je na različite načine ograničena u nacionalnim zakonodavstvima, u supranacionalnim i međunarodnim izvorima prava zbog očuvanja demokratske kulture, legitimnog interesa i prava drugih, državne sigurnosti, javnog reda i mira te sprečavanja krivičnih djela. Zabrana negiranja genocida i drugih najtežih međunarodnih zločina je predmet krivičnog prava ili posebnih zakona koji se bave slobodom govora. Od kraja drugog svjetskog rata pa do danas, raste broj nacionalnih zakona u Europi koja u svojim porecima osiguravaju ograničavanje slobode govora. Donošenjem odluke Vijeća EU 2008/913/PUP uvedena je obaveza harmonizacije krivično-pravne zabrane najtežih oblika govora mržnje u koje spada negiranje genocida i drugih zločina. S obzirom na rat u Bosni i Hercegovini i počinjeni genocid te njegovo negiranje u bosanskohercegovačkoj javnosti i regionu, u ovom radu ću dati komparativno-pravni uvid u zabranu negiranja genocida osnovom Evropske konvencije za ljudska prava, prava EU i njenih članica kao i zemalja BiH regiona i BiH.

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Human Rights Protection: How do the ombudsmen of Bosnia and Herzegovina deal with it?

Zaštita ljudskih prava: Kako to rade ombudsmani Bosne i Hercegovine

Author(s): Aida Hunček-Pita / Language(s): Bosnian

Keywords: BiH; law; human rights; ombudsmen; discrimination; institution; evaluation;

The legislator in Bosnia and Herzegovina gave to The Institution of Ombudsman a central role in protection against discrimination. In this context, the legal framework in Bosnia and Herzegovina for the activities of The Institution of Ombudsman is quite well established: The Law on Ombudsman for Human Rights in Bosnia and Herzegovina is in force; The Law on the Prohibition of Discrimination is also in force, protection against discrimination is also defined in the labor laws of both entities in Bosnia and Herzegovina. Furthermore, for the purpose of more efficient work, The Rules of Procedure of the Institution of Ombudsman have been passed. However, all of this seemed to be insufficient to allow the Ombudsman to provide adequate protection against mobbing as one of the forms of discrimination. The analysis shows that the Ombudsman Institution arbitrarily made decisions because it does not recognize even a court verdict confirming mobbing in the same case (and with the same evidence) which it received. The example which was described shows a high proportion of incompetence and negligence in the processing of cases, which brings the Institution of the Ombudsman of BiH into the ranks of useless but expensive bureaucratic institutions in BiH. In the particular case, the Ombudsmen Institution did not provide any protection, on the contrary, it has trick the legal regulations and explicit legal powers and delayed the unnecessary the whole procedure over three years. In this form, the protection of human rights by the Ombudsman Institution of BiH is at the wrong address.

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The faith of Criminal Procedure Code of Bosnia and Herzegovina unconstitutional norms (Analysis of a failed harmonisation)

Sudbina neustavnih odredaba Zakona o krivičnom postupku BiH (Ogled o jednom neuspjelom usaglašavanju)

Author(s): Branko Perić / Language(s): Bosnian

Keywords: BiH; constitution; Criminal Procedure Code; criminal law; harmonisation; flaws; evaluation;

The author analyzes the proposed Draft Law on Amendments to the CPC BiH by starting from the analysis of lack or shortcomings of procedural norms as indicated by the Constitutional Court, in order to come up with a “draft” that might be of help to parliamentary working bodies discussing the proposed Draft. The analysis points to numerous serious problems in the practical application of CPC BiH provisions, which may be of great use for understanding the drawbacks of disputed procedural norms and for finding decisions that will bring about a firm normative structure of procedural institutions the Constitutional Court's decision pertained to. Through his analysis the author particularly stresses the significance of precision of the norms for the quality of the law and the principle of legality and rule of law. Pointing to the complexity of the problem and the consequences the decision produced for the criminal justice case law, the author suggests that the parliamentary procedure, besides a careful analysis of the Constitutional Court's decision, also includes problems that emerged in the case law by the application of the challenged provisions, for in that way one will be able to also remove the structural flaws the appellation did not point to, which were not analyzed by the Constitutional Court in its decision.

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Ground for Detention: „disturbance to public order” in the jurisprudence of the Constitutional Court of B&H

Posebni pritvorski razlog „uznemirenje javnosti“ kroz praksu Ustavnog suda BiH

Author(s): Ena Gotovuša / Language(s): Bosnian

Keywords: BiH; law; constitution; Constitutional court; jurisprudence; ground for detention; disturbance to public order;

In her paper, the author analyzes the jurisprudence of the Constitutional Court of B&H concerning the ground for detention “disturbance to public order”. In numerous decisions, which where analyzed, the Constitutional Court has found violation of Article II/3.d) of the Constitution of B&H and Article 5 of the Convention. The main problem with the ground for detention „disturbance to public order” is its application by domestic courts. Due to a lack of clarity and concrete criterias, domestic courts often justify its application by general and subjective explanations. In fact, the practice of domestic courts shows a pattern in how the “disturbance to public order” should be explained. In particular, the explanation of this Ground for Detention by domestic courts is just a list of arguments such as: the public order has already been violated by committed criminal offense, the public is disturbed which is proved by frequent media reports in criminal trials, the faith of the public in the judicial system is shaken, characteristics of victim or suspect/accused and the most common argument is: bad economic situation in the country and low standard of living of its citizens, when it is actually a matter of a criminal offence done by abuse of official duties. None of these arguments can justify a long period of detention. Beside decisions of the Constitutional court of B&H, the need for revision of the valid provisions in criminal procedure codes in B&H is confirmed by the decisions of Constitutional courts in region which were the subject of analysis. The author proposes a revision of provisions in a way that ground for detention can be used only for exhaustively numbered criminal offences.

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Financial consumer protection in Bosnia and Herzegovina – role of the Ombudsman for banking system

Zaštita korisnika financijskih usluga u Bosni i Hercegovini - uloga Ombudsmena za bankarski sustav

Author(s): Author Not Specified / Language(s): Croatian

Keywords: BiH; banking system; financial consumer protection; ombudsman institution; role; legal framework;

After negative experiences from previous period, lawmakers in BiH's entities brought up new legal framework for financial consumer protection which is adjusted to acquis communautaire in European union. New legal framework significantly upgrades earlier financial consumer protection system, which mostly relied on Law on obligations and good will of financial institutions. New laws prescribe obligations for financial institutions in a clearly manner as well as rights for financial consumers, with purpose of putting more balance on contractual parties relationships. New framework empowered Ombudsman for banking system in order to create disciplined environment for financial institutions and also to promote awareness of financial consumers. It seems that Ombudsman was given broad competences to fulfill his goals, which are actually quite similar to regular court ones. Adopting new laws, which nominally treat specific area, usually do not accomplish wanted results by itself. It is needed to improve financial literacy of consumers from early days, by introducing elementary financial knowledge in school programs. It is extremely important to work on raising awareness of consumer rights and generally of credit risks on the market. That could be accomplished by creating competent financial and legal offices on municipal level, in charged for advising consumers in every phase of business relationship with financial institution. Insolvent people should be given way out from hard financial situation through personal bankruptcy. The state should take care of it's citizens and give them chance for a new start. Only comprehensive interdisciplinary approach could minimize devastating consequences of consumer's insolvency.

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Inefficient judiciary and preventive measures in criminal proceedings ( how the obligation not to leave a place of residence became a form of punishment)

Neefikasno pravosuđe i mjere za uspješno vođenje krivičnog postupka (kako je mjera zabrane napuštanja boravišta postala kazna)

Author(s): Branko Perić / Language(s): Bosnian

Keywords: BiH; judiciary; efficiency; preventive measures; criminal proceedings; residence; Constitutional court; courts;

In his paper, the author points to the illogicality of linking the duration of preventive measures to the duration of the criminal proceedings. There are a series of unpredictable circumstances that might affect the investigation, the right to have a trial within a reasonable time and the trial itself. Based on a more detailed analysis of case law concerning the application of the ban on leaving one's place of residence, the author particularly points to the illegal imposition and extension of this preventive measure and draws a conclusion that in an inefficient judicial system this measure actually turns into a form of punishment. Referring to a spectrum of options the State has at its disposal in order to prevent flight (bilateral agreements on mutual legal assistance in criminal matters), the author advocates a restrictive implementation of the preventive measure of the ban on leaving one's place of residence. The author proposes alternative measures be considered and calls for deeper consideration of possible duration of this measure in light of unforeseen circumstances.

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Legal and economic aspects of dialysis in the Federation of Bosnia and Herzegovina

Pravni i ekonomski aspekti dijalize u Federaciji Bosne i Hercegovine

Author(s): Ervin Mujkić / Language(s): Bosnian

Keywords: BiH; FBiH; health; medicine; dialysis; legal and economic aspects; social protection; transplantation medicine;

Dialysis treatment is often the only hope for patients with renal insufficiency, which is why it is extremely important that the system of providing this type of health care service is organized in an adequate manner. In the Federation of Bosnia and Herzegovina, dialysis services are performed exclusively within public health institutions, which are faced with a number of problems, some of which are caused by the healthcare system itself, and the other are the effect of the lack of financial resources. In addition, there are significant differences in the scope and manner of achieving certain rights of dialysis patients in the area of social protection, depending on which canton they live in. Possible solutions to some of these problems are the introduction of new models of providing dialysis services and the development of transplantation medicine. However, without the constitutional reform in the Federation of Bosnia and Herzegovina, it will be almost impossible to introduce a model of providing dialysis based on the principles of public-private partnership, and for the further development of transplantation medicine it is necessary for BiH to become a member of Eurotransplant, and one of the conditions for that is the state-level legislative framework.

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Political instrumentalization of the High Judicial and Prosecutorial Council of B&H on the example of the Council's October conclusions

Politička instrumentalizacija Visokog sudskog i tužilačkog vijeća BiH na primjeru oktobarskih zaključaka Vijeća

Author(s): Harun Išerić / Language(s): Bosnian

Keywords: BiH; political instrumentalization; High Judicial and Prosecutorial Council of B&H; example of the Council's October conclusions; Law on HJPC; VSTV; conclusions;

In October 2017, few days after first instance judgment of the Court of B&H in Orić case, Republika Srpska's Centre for the Investigation of War and War Crimes and the Search for Missing Persons filled an Information to the High Judicial and Prosecutorial Council of B&H about state judges and prosecutors with “suspicious war past”. Fifteen of them were accused for unethical behaviour during the war and discriminating against Serbs in war crimes proceedings. Just 12 days after the Information was received, president of the Council, Milan Tegeltija put it on the agenda of the Council meeting with prepared conclusions. Conclusion were formulated in the way to establish a control of bringing indictments for war crimes and war crimes convictions with an aim to achieve ethnically balanced proceedings. That would eventually lead to politicizing war crimes trials. Adopted conclusions were unlawful and pointless. The biggest concern raised the last one, which asked to amend the Law on HJPC which would allow Council to dismiss judge or prosecutor without conducting disciplinary proceedings. Conclusions created internal pressure on the judges and prosecutors to prosecute and judge people based on their ethnicity. Reaction of international & judicial community to the adopted conclusions indicated that they were threatening judicial independence and human rights of judges and prosecutors. After the EU pressure on the president Tegeltija, in November 2017 Council adopted new conclusions. Milan Tegeltija has misused his powers as a president of the Council. Firstly, the Center did not ask the Council to adopt any conclusions. Conclusions were drafted by president Tegeltija himself, without any consultation in or out of the Council. They were shared with members of the Council shortly before the meeting started without giving them time to prepare for debate and working material. Secondly, President Tegeltija was in regular procedure obliged to instruct the Centre to deliver its submissions directly to the institutions responsible for the questions raised. Thirdly, there was not his reaction to the Peer Review or European Commission concerns about rising problems in the B&H judiciary. But, he found it needed to react to the Information submitted by the Centre which activities are directed towards carrying out the nationalistic campaign. Republika Srpska’s Centre Information was part of the orchestrated and long-term campaign from Republika Srpska directed against judiciary of B&H. By his acts, President Tegeltija has joined to this campaign. He politically instrumentalized the Council in order to carry out political requests from Republika Srpska. Although Council’s conclusions were re-formulated, external pressure of the politicians and public & internal pressure of the Council has already had a negative effect on the independence of the judiciary in its final effect. All in all, the ultimate effect can be described as the most severe attack on the political independence of the B&H judiciary.

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The EU General Data Protection Regulation with a view to the compatibility of the BiH personal data protection system with the new European framework

Opća uredba Europske unije o zaštiti osobnih podataka sa osvrtom na kompatibilnost bosanskohercegovačkog sustava zaštite osobnih podataka sa novim europskim okvirom

Author(s): Petar Mrkonjić / Language(s): Croatian

Keywords: BiH; legislation; data protection; EU General Data Protection Regulation; compatibility of the BiH personal data protection system;

The new Regulation on data protection in EU sets up high standards of protection of its citizens private data. The new European framework pushes for growth of the EU’s economy, while persisting with high level of personal data respecting. Therefore, EU regulators are not interested just for protecting of data inside of the EU, but they also wanted these data to be secured in case of transfer. It means that EU will tolerate data export outside the EU only to third countries witih an adequate level of data protection. This analysis shows that Bosnia and Herzegovina should act very quickly with reforming its data protection framework, especially if it wants to stay politically and economically tied with EU. Therefore, Bosnia and Herzegovina should aim to become “safe country” for European data by adopting new adequate framework. Besides, current Bosnia and Herzegovina framework is not customized for new digital age because it cannot guarantee privacy and data protection in new circumstances. Data protection reform in Bosnia and Herzegovina should be grounded on new social environment. Citizens should be provided with more power and control of their data, while duties of controllers and processors should be strictly prescribed. Besides harmonising with EU framework for mentioned reasons, Bosnia and Herzegovina should, by following European model, adopt new data protection framework, which could generate an economic growth, anchoring of nacional security while setting up high level of respecting personal data.

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Suspended sentence – a matter of penal policy or prosecution policy

Uslovne kazne – pitanje kaznene politike ili politike procesuiranja

Author(s): Branko Perić / Language(s): Bosnian

Keywords: BiH; FBiH; RS; judiciary; law: suspended sentence; penal policy; prosecution policy;

The author deals with the analysis of the number of suspended sentences (over 70%) in the structure of the imposed criminal sanctions in the judicial system of BiH. High statistics of suspended sentencing does not come from mild penal policy but is indicative of a problem inherited in the traditional model of prosecuting daily crime that generates good statistics and poor results, while neglecting more serious and larger criminal operations. The author advocates for a change in modus opperandi of the prosecution, shifting its focus from daily crime, but not neglecting it, towards a planned approach to large crime with higher social harm. Such shift would entail the adoption of carefully crafted yearly plans whose implementation would be a parameter for measuring the work of Public Prosecutors offices.

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Criminal offense of malpractice in service and principles of legality and legal certainty

Krivično djelo nesavjestan rad u službi i načela zakonitosti i pravne sigurnosti

Author(s): Branko Perić / Language(s): Bosnian

Keywords: BiH; criminal act; Court of BiH; vagueness; criminal offense; Croatia;

Using some of the examples from the more recent case law of the Court of BiH, the author shows how the vagueness of the wording „manifestly acts in a clearly unconscientious manner“ in the text of the criminal offense of Lack of Commitment in Office affects the inconsistency of the prosecutorial and judicial jurisprudence and produces legal uncertainty. In his analysis, the author notes that this criminal offense was introduced to the applicable legislation in 1948, with the obvious purpose to shield the partisan state administration apparatus from persons of different political views, concluding that the incrimination itself has lost its meaning and significance following the radical social and economic reforms, which is why this criminal offense should be taken out of the criminal legislation. The author also addresses the decision issued by the Croatian Constitutional Court and the dissenting opinions provided by judges Dr. Davor Krapac and Dr. Marko Babić, who explained why the criminal offense of Lack of Commitment in Office constitutes a flagrant violation of the lex certa principle, and points to the fact that the latest amendments have left out this criminal offense from the Croatian Criminal Code.

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Responsibility of board members of corporations for the damage caused to society and members of society - civil aspects and safeguards

Odgovornost članova uprave društava kapitala za štetu pričinjenu društvu i članovima društva - građanskopravni aspekti i zaštitne mjere

Author(s): Jakša Barbić / Language(s): Croatian

Keywords: BiH; FBiH; RS; Croatia; management members responsibility; capital;

Odgovornost članova uprave za štetu pričinjenu društvima kapitala i njihovim dioničarima/članovima u Bosni i Hercegovini uređena je Zakonom o privrednim društvima Federacije BiH i Zakonom o privrednim društvima Republike Srpske . Očito je da su odredbe o tome inspirirane postavkama o odgovornosti članova uprave na kojima se temelji uređenje tog važnog pitanja u pravima srednjoeuropskog pravnog kruga ali da se osim temeljnih odredbi nije ušlo u detaljnije propisivanje načina kako se ta odgovornost ostvaruje.

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The Legal Nature of the Public Procurement Contract in Croatian Legal Order

Pravna priroda ugovora o javnoj nabavi u hrvatskom pravnom poretku

Author(s): Marko Turudić / Language(s): Croatian

Keywords: Croatia; public procurement; legal nature; legal order; EU; French law; German law; ZUP; PPA;

In this paper the public procurement contract in Croatian legal order is analyzed. In the first part of the paper I analyzed the provisions of public procurement regulatory framework of the European Union which define the public procurement contract, and the regulation of this institute in two comparative legal orders: German and French. In the second part of the paper the historical regulation of the public procurement contract in the Croatian legal order is given, as are the prevailing theoretical understandings on its legal nature. In the final part of the paper the regulation of the public procurement contract according to the new Public Procurement Act is given, the basic determinants of this contract with the determinants of an administrative contract according to the General Administrative Procedure Act are compared and the answer on the question whether the public procurement contract is a administrative contract or a civil law contract is given.

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The Decision of the Constitutional Court of the Republic of Croatia U-II-6111/2013 – jurisdictional voluntarism?

Odluka Ustavnog suda Republike Hrvatske U-II6111/2013 – jurisdikcijski voluntarizam?

Author(s): Frane Staničić / Language(s): Croatian

Keywords: Croatia; Constitutional Court; decision; 2013; jurisdictional voluntarism; Miroslav Šumanović; governance;

In this paper the author analyzes the decision U-II-6111/2013 of the Constitutional Court of the Republic of Croatia. In this decision, the Constitutional Court annulled the decision of the Municipality Council renaming a street in Slatinski Drenovac after the date of the proclamation of the Independent State of Croatia in 1941. The Constitutional Court based its jurisdiction, contrary to its earlier jurisprudence, according to the Article 2/1 of the Constitutional Law on the Constitutional Court of the Republic of Croatia, establishing, thus, a general constitutional supervision. One of the judges had a dissenting opinion and the author analyzed the decision and the dissenting opinion. From the analysis the author concluded the following: the Constitutional Court was not in the right assuming jurisdiction in this case as it does not evolve from the Constitution or the Constitutional Law on the Constitutional Court of the Republic of Croatia. The author argues that, in assuming jurisdiction in the manner the Constitutional Court has done in this particular case, the Court created legal uncertainty and acted directly contrary to its established practice and the Constitution, constitutional Law and other laws. The author argues that the explained situation is the consequence of the narrow practice of the Constitutional Court of the Republic of Croatia in defining “other norms” which excluded general acts from the jurisdiction of the Court. Consequently, whenever a need for inspection of general acts arises, the Court has no alternative but to alter its practice. The author argues for a broader definition of “other norms” which would include general acts.

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Services of general economic interest in European law

Usluge od općeg gospodarskog interesa u Europskom pravu

Author(s): Desanka Sarvan / Language(s): Croatian

Keywords: economy; law; services of general economic interest; European law; Croatian law;

Services of general economic interest in European law have a special legal status because of the public interest involved in their performance. Since the initial instrument of restriction of market freedom of services on a single European market for consumer protection, the concept of services of general economic interest has evolved to the legal principle of respecting access to services of general economic interest, which presupposes a universal service and a protected customer of the household category. After accession to the European Union, the concept of services of general economic interest in Croatian legislation gradually replaces the notion of public services.

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Confiscation of assets derived from criminal offences in Serbian legal system – lacks of legislation and practical effects

Oduzimanje imovine proistekle iz krivičnog dela u srpskom pravnom poretku – manjkavosti zakonske regulative i praktični efekti

Author(s): Gordana Krstić / Language(s): Serbian

Keywords: Serbia; criminal act; confiscation of assets; legislation; flaws; practical effects;

Confiscation of assets derived from criminal offences is a key instrument for combating against general and organized crime. It is conducted in specific process, that is complementary to criminal proceedings with the aim to enable the suspects to use or transfer property and other proceeds derived from the criminal offences. The Prosecutor’s Office initiates financial investigation in cooperation with the Financial Police Unit in order to identify, trace and freeze assets, and then submit the request for seizure of property, which is temporary and then the request for confiscation, which is permanently. The sort of these requests depends on the phase of criminal proceedings. This paper analyses actual legislative solutions, conditions for confiscation of assets and the ways how competent authorities deal with this legal tool. Also it is examined the international cooperation for purposes of confiscation and that is very significant. Efficient confiscation of assets which originate from criminal activities is one of the ultimative goals that the Republic of Serbia has to achieve in order to assess to the European Union. In this field legislative measures were made, but it is also imperative to take actions by a competent authorities in procedures of confiscation of the assets, to consider correctly all relevant evidences and to decide if the property is in accordance with lawful earnings or not. That is very responsible and demanding task and it will have a huge impact in evaluation and increasing the capacity of Serbian judiciary.

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Medical security measures against mental incompetent persons in the system of criminal sanctions - deficiency in the Serbian legislation and possible alternative

Mere bezbednosti medicinskog karaktera prema neuračunljivim licima u sistemu krivičnih sankcija - nedostaci u srpskom zakonodavstvu i moguća alternativa

Author(s): Anđela Bogojević / Language(s): Serbian

Keywords: Serbia; medical security measures; mental incompetent persons; criminal sanctions; legislation; criminal law; evaluation;

Because of its specific nature, medical security measures do not cease to be a subject of study. This makes this topic especially interesting, and that is the reason why it deserves to be the subject of consideration and the possible finding of a different solution than the one that is present in the effective legislation. In the Paper, the position of medical security measures in Serbian criminal legislation has been analyzed. The purpose of the existence of medical security measures as criminal sanctions is explained as well as the certain provisions that would lead to the migration of these measures into the domain of a special law. Consequently, a solution which is conceived on a different approach was offered and the possibility of accepting the same into our legislation is considered. This analysis leads to the conclusion that our legislation is far from the one that regulates the treatment of mental incompetent persons in the domain of social measures and that security measures, as criminal sanctions are widely used in the criminal system of the Republic of Serbia. For this reason, in order to implement medical security measures more effectively and therefore to improve the effectiveness of the treatment of mental incompetent persons, it is necessary to redefine the existing terms and conditions and to determinate certain situations with additional provisions - all with the needed help of the adequate treatment of judicial authorities.

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What do Serbian prosecutors require in accordance with the changes to the Constitution of the Republic of Serbia?

Šta traže srpski tužioci u sklopu promena Ustava Republike Srbije?

Author(s): Smilja Spasojević / Language(s): Serbian

Keywords: Serbia; constitution; prosecutors; State Prosecutorial Council; authority; jurisdiction;

The proposal for changing the Constitution of the Republic of Serbia concerning the prosecution goes in three directions: change of the Constitution regarding the position of the National Assembly, change of the Constitution concerning the Public Prosecution and change of the Constitution concerning the State Prosecutorial Council. There are several dominant ideas that are common to all changes and based on those ideas, the concrete proposals are made. It is a complete release from the influence of the other two government branches - legislative and executive. Then, it is the full work autonomy, which implies a different arrangement in terms of establishing vertical responsibility. A special characteristic is that the prosecutorial council is given the opportunity to have independent autonomy in the choice of prosecutors and to extend the authority of this body in order to ensure independent functioning. There is also the tendency to extend competencies to protect constitutionality and legality, human rights and civil liberties. The most important decision of the proposed changes is the intention that the prosecution, together with the judiciary, forms a new type of authority, which would no longer be called judicial, but right-judicial authority.

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The legal aspect of exclusion from a political party - the case of Vuk Jeremić

Pravni aspekt isključenja iz političke stranke - slučaj Vuka Jeremića

Author(s): Savo Manojlović / Language(s): Serbian

Keywords: Serbia; Vuk Jeremić; exclusion from political party; legal aspects; constitution; legal limitations;

Pravni aspekt isključivanja određenog lica iz političke stranke do sada, koliko je meni poznato, nije bio predmet neke ozbiljnije naučne obrade. Ustavno-sudska praksa je takođe dala mršave rezultate i kada je imala šansu da izrekne stav o ovom pitanju. Očigledno je politička težina uvek bila preteško breme za iskazivanje pravno promišljenog suda. Pitanje isključenja iz političke stranke je pravno isprepletano sa bazičnim ustavnim pravima svakog demokratskog poretka. Cilj rada je ispitivanje isključivanje iz političke stranke u svetlosti odnosa unutrašnje autonomije političkih stranaka i javnog poretka Republike Srbije (RS). Da li na temelju pozitivnopravnih propisa, političke stranke mogu suvereno odlučivati o isključenju svojih članova ili su pak ograničene javnim poretkom? Do koje mere se eventualne granice ograničenja prostiru?

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