Series:Fondacija Centar za javno pravo - Analize

Influence on the outcomes of judicial proceedings through the application of the institute of delayed prosecution and correlations with other alternative methods of resolving criminal proceedings

Uticaj na ishode pravosudnih postupaka kroz primenu instituta odloženog krivičnog gonjenja i korelacija sa drugim alternativnim načinima rešavanja krivičnih postupaka

Author(s): Milovan Nikolić / Language(s): Serbian

Keywords: Serbia; criminal law; criminal proceedings; influence; institute of delayed prosecution;

Of all alternative ways of ending criminal proceedings, the institute of delayed prosecution and the agreement on the recognition of the criminal offense have the most significant effect on the completion of judicial proceedings. Consequently, it is necessary for it to be accompanied by appropriate legal solutions that must meet two basic objectives. In addition to retaining a high degree of implementation in practice and enabling the future increasingly massive use of these alternative institutes, it is now imperative to specify more precisely the criteria that will limit this public prosecutor's discretionary power. At the same time, the introduction of two-step decisionmaking, and thus giving greater importance to protect the position of the injured party, by recognizing all the attributes of the victim, as well as forcing prosecutors to explain the justification and urgency of the application of opportunties and other alternative ways of solving criminal procedures with much more „passion”. Pointing to numerous objections in the application of the institute of delayed prosecution, I did not intend to question its criminal-political justification, but to draw attention to the importance of (un)quality opportunistic legislation and the meritory power of the prosecuting prosecutors in the alternative ending of judicial proceedings. The coexistence of these factors must, as a result, have even more extensive application of alternative institutes, with particular reference to the many opportunities and agreement mentioned above, but not that the key defects and imprecision of the legal text are not the key contribution to such implementation. Successful implementation of these relatively new institutes of criminal procedural legislation will be primarily contributed by the necessary education of professional staff, as well as the introduction of the public about their meaning, significance and advantages. I am convinced that at that time, statistical data will not only represent evidence of the extremely frequent application of alternative institutes, but will reflect the overall social satisfaction expressed by procedural but as far as possible the just termination of criminal proceedings.

More...

Public procurement procedures in the Ministry of Defense of Bosnia and Herzegovina

Procedure javnih nabavki u Ministarstvu odbrane Bosne i Hercegovine

Author(s): Samir Mušović / Language(s): Bosnian

Keywords: public procurement for the BiH Ministry of Defense; 2004-2017; financial statements and financial operations; Supreme Audit Institution; BiH Public Procurement Law;

At the end of November 2018, the official confirmation of the BiH Ministry of Defense appeared in local media was related to the problematic delivery of the canned meat for the Ministry. It was officially confirmed that the inadequate deliveries were already terminated since content of the tested meat-cans confirmed presence of the pork meat in a cans that were marked as the beef meat product in accordance with the manufacturer's declaration. Delivery of the meat cans was forgotten soon, but unfortunately, this case confirmed again a continuity of the multi-annual trend of the questionable public procurement for the BiH Ministry of Defense. Public audit reports confirmed in a 14 years long continuity of the shortcomings related to the procurement procedures performed by the BiH Ministry of Defense. This trend is clearly visible in the attached table (Annex 1) consisted of audit findings related to the public procurement procedures, audit recommendations, and issued auditor’s opinions copied from public audit reports for the BiH Ministry of Defense from 2004. to 2017. Despite to the intensive parliamentary oversight of the BiH Defense Ministry and the BiH Armed Forces performed by the three Committees of the Parliamentary Assembly of Bosnia and Herzegovina (the "Joint Committee for Defense and Security of BiH", and two "Finance and Budget Committees" from both Houses of the Parliamentary Assembly of Bosnia and Herzegovina), Ministry was not able to overcome shortcomings of its public procurement procedures. Even more, the BiH Ministry of Defense from 2004 to 2017 did not received even single positive auditor’s opinion on the annual financial statements and financial operations. For all these years, annual financial statements and financial operations were rated with the “reserved auditor’s opinions” (conditional opinion) except for 2011, when the Ministry received a "negative auditor’s opinion" (negative qualification). In accordance to the new practice, the BiH Supreme Audit Institution published several years back a separate audit report on the “Major annual audit findings and recommendations”27 that covers the most frequent audit findings and the systemic deficiencies as well. It would be very useful for the Ministry to undertake comprehensive analysis of the Chapter “Financial Audit” (3.2.), at least for the three years back, in order to create appropriate comparisons with the audit findings that were addressing deficiencies of the procurement procedures presented here in “Annex 1” (attachment). Moreover, it will be necessary to organize the highest level of internal consideration of the audit recommendations for improvement of the procurement procedures published in annual financial audit reports for the BiH Ministry of Defense. In addition to the internal consideration of the recently received audit recommendations, it will be very important to discuss and to apply the following measures in order to reduce the risks of repetition of the already reported procurement problems of the Ministry of Defense: a) To enable wider participation to the training sessions on the implementation of the “BiH Public Procurement Law” of the majority of staff and the key personnel of the BiH Ministry of Defense, especially for those employees that confirmed their interest in participating to the procurement procedural activities (constant training should reduce risk that procedural mistakes will be repeated due to the incompetence); b) To adopt internal Decision by which any staff member/manager who participated to the procurement procedure that was subject of any chapter of the last audit report (starting from the 2018 budget year) will be banned to participate in any procurement procedure for the period of next three to five years; c) To establish procedure by which any staff member/manager who is going to participate to any procurement teams or to any procurement procedural step, will receive the “engagement decision" that will precisely define his/her work assignments, responsibilities and sanctions for failures and/or for breaches of the legal and procedural obligations. These “engagement decisions" could be standardized in a form of several textual definitions given in the “engagement decision” for the leading member of a working group", for the "working group member" etc., in order to simplify preparations and the execution of the given tasks; d) In cooperation the “Internal Audit Unit”, all public procurement procedures could be segmented by stages and it is possible to define pre-conditions or requirements for the each following stage of the each legally defined procurement procedure. In addition, it is possible to establish internal obligation (the mandatory one) that each procurement stage should be performed in consultation with the internal auditor and/or procurement stages should be certified (approved) by internal auditor (please consider option to learn more about the stage-certification practice active in internal audits of Spain); e) To establish obligatory practice of documenting of each procurement procedure in order to enable follow-ups, to prevent the repetition of the same mistakes, to trace individual responsibilities and to avoid "collective responsibility"; f) To establish prevention measures against of the corruptive misuses of assignments in procurement or misuse of public resources, as well as to establish system of internal sanctions for those individuals or members of the procurement teams who will breach regulations or will try to avoid obligatory steps/procedures; g) In a case that the BiH Ministry of Defense will not succeed to overcome inherited public procurement problems, or will continue with the low level implementation of the audit recommendations related to the public procurement, it will be useful to consider and to initiate adoption of the new legal solutions that will enable “outsourcing” procurement service solution for the BiH Ministry of Defense and for other institutions that were not able to overcome their deficiencies in their procurement for many years back (please consider learn more about the Swedish solutions applied for the public procurement performed by the outsourcing service providers/agencies).

More...

Administrative system in Federation of Bosnia and Herzegovina: Legal particularism and A la Carte implementation - Causes and Consequences

Službenički sistem u FBiH: pravni partikularizam i a la carte primjena – uzroci i posljedice

Author(s): Emir Mehmedović,Selma Horić / Language(s): Bosnian

Keywords: Law on Civil Service in FB&H; Constitution of FB&H; Cantonal Laws on Civil Service; legal parallelism; legal particularism;

Judgment of the Constitutional Court of FB&H No. 27/09, which found that Article 1, paragraph 1 of the Law on Civil Service in FB&H, in the part which refers to cantons, cities and municipalities, is not in accordance with the Constitution of FB&H, broke down theretofore uniform civil service system in the FB&H and opened up the possibility for creation of parallelism in the legislative regulation of this question. In the coming years, with the adoption of Cantonal Laws on Civil Service, legislative parallelism was created. Legislative parallelism has opened up space for legal particularism that is reflected in various legal solutions in laws on civil service and has created, and are likely to create in the future, legal uncertainty in terms of application of appropriate regulations. An example can be the status of advisers to elected and appointed persons in Sarajevo Canton, especially in municipalities and the City of Sarajevo. The aim of this paper is to present the causes and consequences that led to legal parallelism, and then to legal particularism in the civil service law of FB&H, and to indicate the way for possible regulation of this area.

More...

Analysis of the Lobbying Law of the Republic of Serbia

Analiza Zakona o lobiranju Republike Srbije

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

Keywords: Lobbying Law; Republic of Serbia; Anti-Corruption Agency; accession to the European Union; criminal provision;

Lobbying Law is a new law in the legal framework of the Republic of Serbia, which will start to apply in the second half of 2019. The envisaged legal solutions were subject to detailed analysis. The reasons for the adoption of this regulation have been explained and the envisaged structure of the participants in this procedure was considered. The conditions for conducting this activity and the role of the Anti-Corruption Agency and its significance for the implementation of this law have been presented. Finally, a critical review of the implementation of the lobbying process has been carried out, where it was concluded that the anti-corruption purpose of this regulation has not been realized and that similar activities have already been conducted in Serbia under the auspices of some other laws. Additionally, the state authorities are not recognized as the bearers of the activities regarding the regulations’ improvement and the Lobbying Law does not foresee any obligation of state authorities in the lobbying process. The only justified reason for passing this law is the realization of the undertaken international obligations in the process of accession to the European Union.

More...

Implementation of anti-corruptive standards of United Nations from the perspective of the positive legislation of the Republic of Serbia

Implementiranje antikoruptivnih standarda Ujedinjenih nacija iz perspektive pozitivnog zakonodavstva Republike Srbije

Author(s): Tijana Perić Dilgenski / Language(s): Serbian

Keywords: anti-corruption; UN Convention against Corruption and the UN Convention against Transnational Organized Crime; legislation of the Republic of Serbia;

Using comparative method, the paper analyzes the extent to which the legislation of the Republic of Serbia has been harmonized with the leading anti-corruption normative standards of the United Nations - the UN Convention against Corruption and the UN Convention against Transnational Organized Crime with additional protocols. The UN's anti-corruption standards are the most important global standards in this matter and by their nature, transcending the anti-corruption standards of the Council of Europe and the acquis communautaire of the European Union. In addition to the fact that the implementation of these standards represents the international legal obligation of Serbia as a state of post-communist transition, it is also important for the establishment of the rule of law as the pillar of democracy.

More...

Current reform of the pension system in the Federation of Bosnia and Herzegovina: what does the newly adopted Pension and Disability Insurance Act bring?

Aktualna reforma penzijskog sistema u Federaciji Bosne i Hercegovine: šta donosi novi Zakon o penzijskom i invalidskom osiguranju?

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

Keywords: Pension and Disability Insurance Act; Federation of Bosnia and Herzegovina; reform of the pension system; international conventions;

The application of the earlier Pension and Disability Insurance Act caused constant losses that resulted in a high deficit in the Pension and Disability Insurance Institute. This finally raised serious questions about the pension system solvency in FB&H, pension adequacy and regular pension payments. In addition, bad economic and demographic situation, decline in working-age population, emigration of the young working class population etc. are just some of the reasons that also indicated the need for pension system reform in FB&H. This paper deals with the current reform of the pension system in FB&H through the analysis of the recently adopted Pension and Disability Insurance Act and the novelties introduced by it. Special emphasis is given to the provisions containing the elements of unlawful discrimination as well as unconstitutionality. As such, these provisions are contrary to the European and regional trends, the international conventions and to the Constitution of FB&H. As an obvious example of unlawful discrimination the paper particularly stresses the provision denying unmarried partners’ access to the survivor's pension. Also, the provision suspending the pension payments to one group of pensioners represents a violation of the right to property guaranteed by the FB&H Constitution and as such could be used as the basis for initiating a procedure for assessing its constitutionality. The analysis of the disputed provisions of the Pension and Disability Insurance Act points to their discriminatory and unconstitutional character and to the need for their amendment in order for FB&H to follow the European path and comply with the constitutionally accepted obligations with regard to the international conventions.

More...

The truths and controversies of cinematographic law in Serbia About one unjustified (legally) neglected form of artistic freedom of expression

Istine i kontroverze kinematografskog prava u Srbiji O jednom neopravdano (pravno) zanemarenom obliku umetničke slobode izražavanja

Author(s): Dejan Vučetić,Dejan Dabić / Language(s): Serbian

Keywords: freedom of cinematographic speech; Serbia; Serbian Cinematography Act; audiovisual arts; Audio-Visual Creativity Act; national film festival;

The paper critically assesses, from a legal point of view, one neglected aspect of artistic freedom of expression - the freedom of cinematographic speech. The most important sources and concepts of cinema law are presented and defined - far more precise than in the Serbian Cinematography Act. Authors have stressed out critical shortcomings of the current legal system of cinematography law in Serbia - such as the need to expand the subject of this law to all audiovisual arts. Furthermore, the authors point to the necessity of extending the circle of the authors of the movie on the director of photography, the chief editor, and dramatists; as well as the need for better protection of morals and other issues of public interest in Serbian society in the case they are offended by the movie's content. Finally, there is an unresolved issue of the status of the national film festival that needs to be regulated in future Audio-Visual Creativity Act.

More...

Systemic consequences of the decision of the Constitutional Court of BiH in the case of dr. Božo Ljubić – necessity of structural changes of bicameralism

Sistemske posljedice Odluke USBiH u predmetu U23/14 – nužnost strukturalnih izmjena dvodomnog uređenja zakonodavnog tijela

Author(s): Demirel Delić / Language(s): Bosnian

Keywords: BiH’s model of bicameralism; constitutional system of BiH; Election Law of BiH; Constitution of the FBiH; constituent peoples;

In BiH’s model of bicameralism, since the decision of the Constitutional Court of BiH in the U23/14 case (dr. Božo Ljubić) House of Peoples exclusively represents its “constituent peoples (and others)”, so we can call it exclusively ethno-national bicameralism. Implementation of the decision became serious politicall issue, which will have severe consequences on the whole constitutional system of BiH. There are initiatives to change electoral legislation at the entity level, which undoubtedly leads to a conflict of arguments. The real issue is how to solve a problem of clear inconsistency between the Constitution of the FBiH, the Election Law of BiH and the Constitution of BiH, so it is very uncertain how the envoys of the FBiH House of Peoples can be elected without breaking a constitution or law at the same time. Decision of the Constitutional Court of BiH in the case of U-23/14 can not be properly implemented by merely modifying the Election Law of BiH, because proper implementation would mean changes to the constitutional structure at the level of FBiH and BiH through the harmonization of these acts and electoral legislation, through a clear delineation in the competencies of House of Peoples. House of Peoples by the interpretation of the Constitutional Court of BiH exclusively represents its “constituent peoples (and others)”, so in the spirit of the decision this House, has to have reduced powers based only on the protection of the constituent peoples (and others). The problem must be solved by domestic politicall structure with a permanent solution and with review of the constitutional structure in BiH and the possibility of constitutional changes. The paper consists models that would be beneficiall for the constitutional structure of the BiH.

More...

Election of the President of the Central Election Commision of BiH – legal aspects and consequences of the decision

Izbor predsjednika Centralne izborne komisije – pravni aspekti i posljedice odluke

Author(s): Demirel Delić / Language(s): Bosnian

Keywords: election campaign in 2018.; Constitutional Court of BiH; Election Law of Bosnia and Herzegovina; Central Election Commision of BiH; democratic consciousness;

Election campaign and generally election period for the election's in 2018 corresponds to the problem of the implementation of the decision of the Constitutional Court of BiH in the U-23/14 case (dr. Božo Ljubić). In that case Court found that the Election Law of Bosnia and Herzegovina is incompatible with the Constitution of the Federation of Bosnia and Herzegovina and with the international standards of the European Convention on Human Rights and Fundamental Freedoms. So, there are initiatives to change electoral legislation which undoubtedly leads to a conflict of arguments. In those circumtances, political acters decided to make pressure on Central Election Commision of BiH, because they (politicans) didn't menage to timely change Election Law, which means that the key for implementation of the election results is in the hands of Central Election Commision of BiH. Few days before elections, the President of the Central Election Commision of BiH was being elected from amongst members of the Central Election Commision of BiH. By the system of rotation it was time to choose president amongst serb's. By the decision of election of the President of the Central Election Commision of BiH Branko Petrić was elected. Unsatisfied with the decision, Novak Božičković (also serb member of the Central Election Commision of BiH) appealed against the decision to the Appelate Division of the Court of BiH. He (mr. Božičković) argued that the decision was not compatible with the Election Law of Bosnia and Herzegovina, because mr. Petrić was already elected as a president few years ago. In a few days time after his appeal, the Appelate Division of the Court of BiH confirmed the decision of the Central Election Commision of BiH. After that, there were public reactions of the politicians, intelectuals, journalists, who unanimously considered the decision of the Court, and Central Election Commision of BiH as politically motivated. Because of that I considered that there is a need to detaily inform expert and general public of legal aspects and consequences of the decision. Only with that kind of approach there is a chance that we (as a society) can upgrade our democratic consciousness and belief in the judicial system.

More...

Ethnic structure of the permanent staff at the Parliamentary Assembly of BiH and the Parliament of the Federation of Bosnia and Herzegovina (November 2018)

Etnička struktura stalno zaposlenih u Parlamentarnoj skupštini BiH i Parlamentu Federacije BiH (novembar 2018. godine)

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

Keywords: initiative to access public information on the ethnic structure of employees; Parliamentary Assembly of Bosnia and Herzegovina (PSBiH); Parliament of the Federation of BiH (PFBiH); constituent peoples;

U kontekstu frekventnih medijskih izjava dijela političkih stranaka ili političkih predstavnika koji “zadnje atome svoje životne energije ulaže u zaštitu naroda” (kojem pripada/ju), pokrenuta je incijativa za pristup javnim informacijama o etničkoj strukturi zaposlenih u dvije od tri ključne institucije zakonodavne razine vlasti u Bosni i Hercegovini: Parlamentarnoj skupštini Bosne i Hercegovine (PSBiH) i Parlamentu Federacije BiH (PFBiH). Bez pretjeranih ambicija, namjera je bila da se napravi osnovni/bazni pregled strukture zaposlenih prema pripadnosti konstitutivnim narodima u te dvije institucije, i to ne samo po ukupnim pokazateljima, već i po strukturi platnih razreda. S obzirom da pozitivni propisi donose veoma širok spektar platnih koeficijenata, sve je pojednostavljeno tako da su platni razredi grupisani u 4 osnovne grupe: (a) najviši rang rukovodećih državnih službenika; (b) rang rukovodioca unutrašnjih organizacionih jedinica; (c) rang državnih službenika osnovne razine; i (c) platni razred zaposlenika/namještenika.

More...

Constitutionality of the Article 395 of the Law on Civil Procedure of the Federation of Bosnia and Herzegovina

Ustavnost člana 395 Zakona o parničnom postupku Federacije Bosne i Hercegovine

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

Keywords: article 395 of the Law on Civil Procedure of the Federation of Bosnia and Herzegovina; decision of constitutional courts; lawyers and public attorneys; right of access to the court and right to the property;

Paper discusses constitutionality of the article 395 of the Law on Civil Procedure of the Federation of Bosnia and Herzegovina which proscribes that provisions on expenses shall apply to the parties represented by the Public Attorney's Office. In such cases, the costs of the litigation shall include the amount that could be granted to the party as the remuneration for attorney. First part of the paper is devoted to the comparative solutions on this issue in Croatia, Serbia and Montenegro. Special attention is paid to the decision of constitutional courts on constitutionality of similar legal provisions in these countries. In second part of the paper it is discussed whether similarity and differences between lawyers and public attorneys provide arguments for constitutionality of such legal provision. Third part is dedicated to the compatibility of disputed provision with human rights, more precisely with right of access to the court and right to the property. That is done through four questions test: whether there is interference with these rights; was the interference conducted in accordance with the law; does the interference further a legitimate aim; is the interference necessary in a democratic society. It is concluded that there are more arguments in favour of the constitutionality of the article 395. In second hand, absence of the protective measures which could provide court with the discretion to exempt parties from paying remuneration to the public attorney could be potential argument of its unconstitutionality.

More...

Constitutionality question of part of the provision of Article 395 of the Law on Civil Procedure of Republika Srpska

Pitanje ustavnosti dijela odredbe člana 395 Zakona o parničnom postupku Republike Srpske

Author(s): Lejla Ramić / Language(s): Bosnian

Keywords: Republika Srpska; BiH; lawmaker; Tariff on benefits and rewards for the work of lawyers; PD PSBIH;

Od 2003. godine je zakonodavac u Republici Srpskoj opredijeljen za rješenje kojim se stranci koju zastupa javno pravobranilaštvo priznaju troškovi u parničnom postupku prema važećoj Tarifi o naknadama i nagradama za rad advokata. Primarna namjena Tarife je da služi za obračun naknade troškova i nagradu advokatima koji su upisani u imenik advokata pri advokatskim komorama. Zahtjev za ocjenu ustavnosti ovog rješenja, 2018. godine pokrenulo je 12 zastupnika Predstavničkog doma Parlamentarne skupštine Bosne i Hercegovine (PD PSBIH) navodeći argumente za njegovu neusklađenost sa Ustavom Bosne i Hercegovine i EKLJP. Slično zakonsko rješenje egzistira i u državama regiona te su se o njegovoj ustavnosti očitovali Ustavni sud Republike Hrvatske i Ustavni sud Republike Srbije, a očekuje se očitovanje do kraja godine i Ustavnog suda Republike Crne Gore. Stav o ovom pitanju indirektno je zauzeo i Evropski sud za ljudska prava. U analizi ću razmotriti argumente koji su iznijeti u zahtjevu za ocjenu ustavnosti zastupnika PD PSBIH u odnosu na zauzeta stajališta ustavnih sudova regiona i ESLJP, te u konačnici iznijeti vlastiti stav po pitanju ustavnosti ovog zakonskog rješenja.

More...

General Elections in Bosnia and Herzegovina 2018: Legal Thriller without Happy End?

Opšti izbori u Bosni i Hercegovini 2018: pravni triler bez hepienda?

Author(s): Nedim Ademović / Language(s): Bosnian

Keywords: general elections in Bosnia and Herzegovina; Election Law of Bosnia and Herzegovina; Constitution of the Federation of Bosnia and Herzegovina; European Convention on Human Rights and Fundamental Freedoms;

The general elections in Bosnia and Herzegovina, which are to be held in October 2018, are questioned. Due to the failure to comply with the Decision of the Constitutional Court of Bosnia and Herzegovina U-23/14, the incompatibility of the Election Law of Bosnia and Herzegovina with the Constitution of the Federation of Bosnia and Herzegovina and with the international standards of the European Convention on Human Rights and Fundamental Freedoms, the normative framework for elections has become so deficient that it will require very detailed analysis and reform! There is no time since the elections are coming very soon, and public officials at the state and federal level, motivated by electoral campaigns, have diametrically different attitudes. For a number of years now, the international community, aside from the media and advisory role, will not take any radical measures to enforce the solutions. It is to estimate, therefore, that blockade will occur because of the impossibility of forming power at federal and state level after the elections. This could really turn into a deep crisis of democracy, which might even come close to situation of endangering the security situation in Bosnia and Herzegovina. Fortunately, for such a situation, the High Representative still has Bonn Powers, de iure and de facto!

More...

Senate, the lawgiver

Senat, kodeksodavac

Author(s): Nenad Veličković / Language(s): Bosnian

Keywords: Article 56 of the Statute of the University of Sarajevo; Draft Code of Conduct and Clothing at the University of Sarajevo; Senate of the University;

Dana 27. juna 2018, pod brojem 01-647/18, pozivajući se na član 56 Statuta Univerziteta u Sarajevu, Senat Univerziteta utvrdio je Nacrt Kodeksa ponašanja i odijevanja na Univerzitetu u Sarajevu i uputio ga u sve organizacione jedinice (fakultete, akademije, institute) u javnu raspravu. Tako su svi uposlenici 29. juna 2018. dobili tekst nacrta, uz poziv da do 19. jula 2018. dostave svoje prijedloge, primjedbe i mišljenja. Ne piše kome, vjerovatno se misli potpisniku, tj. Dekanatu. Službeni dopis, poslan sa e-adrese dekanata, potpisan je tom opštom imenicom.

More...

Overview of case law of the European Court of Human Rights in respect of Croatia (1997-2018)

Pregled prakse Europskog suda za ljudska prava u odnosu na Republiku Hrvatsku (1997–2018)

Author(s): Nikolina Katić,Morana Briški,Matea Bašić / Language(s): Croatian

Keywords: Croatia; European Court of Human Rights; Bosnia and Herzegovina; Croatia; civil and criminal field;

Croatia has been a party before the European Court of Human Rights (hereinafter: the Court) since 1997. During this period, the Court has developed extensive jurisprudence in respect of Croatia, examining a range of issues concerning various human rights guaranteed under the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention). Croatian experiences before the Court and the Committee of Ministers in the execution of the Court's judgments finding violations of the Convention may be of particular use to Bosnia and Herzegovina, as the legal systems of both countries have the same origins and to a large extent still rely on the same underlying legal principles. This paper thus provides a comprehensive overview of the Court's most important judgments and decisions in respect of Croatia in both the civil and criminal field, beneficial for ensuring the development of Convention compliant case-law, and efficient execution of similar judgments of the Court against Bosnia and Herzegovina.

More...

Implementation of the 2018 General Election Results in relation to the FBiH Parliamentary House Members

Implementacija rezultata Općih izbora 2018. godine u odnosu na izaslanike Doma naroda Parlamenta FBiH

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

Keywords: Constitutional Court of BiH; electoral legislation; Constitution of the FBiH; Constitution of BiH; House of Peoples of Bosnia and Herzegovina;

The political process of implementing the decision of the Constitutional Court of BiH in the U23/14 case pointed to several critical points in the electoral legislation as well as in the constitutional system as a whole. First, it turned out that there are not clear enough rules on the jurisdiction of the state and the entities to regulate the election process of House of Peoples in FBiH. Consequently, there are simultaneous initiatives to change electoral legislation at the state and entity levels, which undoubtedly leads to a conflict of competencies. Secondly, there is a clear inconsistency between the Constitution of the FBiH, the Election Law of BiH and the Constitution of BiH, so it is very uncertain how the envoys of the FBiH House of Peoples can be elected without breaking a constitution or law at the same time. And third, it turns out that domestic political actors are doing homogenization of the electorate, while they simply leave the High Representative to BiH to solve this legal and political problem. In its persistent refusal to execute and enforce the decisions of the highest court instances, Bosnia and Herzegovina has gone from the point of disregarding fundamental human rights to the danger that it will no longer be a functional state. With careful analysis of the decision of the Constitutional Court of BiH in the case of U-23/14 and the whole spectrum of its implications, it comes to the conclusion that this decision can not be properly implemented by merely modifying the Election Law of BiH. Proper implementation would mean changes to the constitutional structure at the level of FBiH and BiH through the harmonization of these acts and electoral legislation, through a clear delineation in the competencies of certain levels of government and the adaptation of constitutional and legal texts presented by the Constitutional Court's understandings and interpretations. Any changes to the constitutional structure in BiH carry the need for a comprehensive revision of the constitutional structure of all levels of government, including the implementation of other verdicts and decisions such as the Sejdić and Finci cases, Zornić, Pilav and the City of Mostar. Decision U-23/14 could therefore be a catalyst for constitutional changes, as constitutional changes are "necessarily evil" for this decision to be implemented and the state to continue to function. However, it is very certain that the problem will be solved by imposing a High Representative's decision that would become a permanent interim solution and where there would be no comprehensive review of the constitutional structure in BiH and the possibility of constitutional changes.

More...

Analysis of Media Legislation in the Republic of Serbia

Analiza medijskog zakonodavstva u Republici Srbiji

Author(s): Predrag Dimitrijević,Jelena Vučković / Language(s): Serbian

Keywords: Serbia; media; media legislation; Regulatory authority for electronic media; media pluralism;

Development of media legislation in Serbia begins after social changes in 2000. Media law in Serbia is regulated by media laws adopted in 2014. Fundamental media laws are the Law on public information law and media, Law on electronic media and the Law on public media services. Even at the time of the adoption of these laws, the individual experts and media workers expressed concerns over how the particular insufficiently explicit provisions should be interpreted and applied. Current media laws in Serbia show a certain discrepancy and retrograde tendency, which further complicates their application and absence of case law. Poor condition in the media is a consequence of growing political influence on the media, as well as a very high concentration of ownership which violates media pluralism principle. The findings of the research show that there are pressures on the media in Serbia, that there are censorship and self-censorship, that representatives of the authorities interpret critically-minded media as their political opponents and that specific media are the means for political propaganda and crackdown of political opponents. This further complicates a realistic state and application of media legislation. Several important problems arise in the implementation of media legislation, namely: transparency of ownership and financing of private media; the need for efficient supervision of state funding and co-financing of the media; strengthening the independence and capacity of the regulatory authority for electronic media; attacks and intimidation of journalists and the need for protection of journalists.Development of media legislation in Serbia begins after social changes in 2000. Media law in Serbia is regulated by media laws adopted in 2014. Fundamental media laws are the Law on public information law and media, Law on electronic media and the Law on public media services. Even at the time of the adoption of these laws, the individual experts and media workers expressed concerns over how the particular insufficiently explicit provisions should be interpreted and applied. Current media laws in Serbia show a certain discrepancy and retrograde tendency, which further complicates their application and absence of case law. Poor condition in the media is a consequence of growing political influence on the media, as well as a very high concentration of ownership which violates media pluralism principle. The findings of the research show that there are pressures on the media in Serbia, that there are censorship and self-censorship, that representatives of the authorities interpret critically-minded media as their political opponents and that specific media are the means for political propaganda and crackdown of political opponents. This further complicates a realistic state and application of media legislation. Several important problems arise in the implementation of media legislation, namely: transparency of ownership and financing of private media; the need for efficient supervision of state funding and co-financing of the media; strengthening the independence and capacity of the regulatory authority for electronic media; attacks and intimidation of journalists and the need for protection of journalists.

More...

Administrative dispute costs

Troškovi upravnog spora

Author(s): Predrag Krsmanović / Language(s): Bosnian

Keywords: costs of disputed administrative proceedings; courts of Bosnia and Herzegovina; Supreme Court of BiH; Federation of BiH; law;

Die Arbeit behandelt das Problem der Erstattung der verschiedenen Kosten von streitigen verwaltungsrechtlichen Verfahren vor den Gerichten von Bosnien und Herzegowina. Der Autor stellt Lösungen aus der Region vor und kommt zu dem Schluss, dass die Praxis des Obersten Gerichtshofs der Föderation von BiH aus mehreren Gründen rechtlich problematisch ist. Die Rede ist von Fällen, in denen ein Verwaltungsakt aufgehoben und an das erstinstanzliche Organ zurückverwiesen wird, das ihn erlassen hat. Die Gerichte folgen der Meinung des Obersten Gerichtshofs der Föderation von BiH und weigern sich die Kosten der Partei zuzusprechen, die ihr Ziel erreicht hat: Aufhebung oder Aussetzung eines Verwaltungsakts. Nach Ansicht des Obersten Gerichtshofes der Föderation von BiH sind die Kosten des Rechtsstreits nicht der Partei zuzuerkennen, die den Prozess "gewonnen" hat, weil der Verwaltungsakt aufgrund der Aufhebung und Zurückverweisung nun aufgrund eines Urteils neu zu erlassen ist. Der Autor zeigt, dass eine solche Position weder in den Lehrpositionen noch in den Gesetzen begründet ist und schlägt eine Änderung des bestehenden Gesetzes und die Änderung der Gerichtspraxis in der Föderation BiH vor. Das streitige verwaltungsrechtliche Verfahren ist keine Fortsetzung des Verwaltungsverfahrens (oder einer der Verfahrensphasen), sondern eine besondere Art von Gerichtsverfahren. Wenn das Gericht der Forderung des Klagsantrags auf Aufhebung des strittigen Verwaltungsaktes stattgibt und die Sache wieder dem Verwaltungsorgan zurückschickt (zB aufgrund der unvollständigen und fehlerhaften Ermittlung des Sachverhalts), ist die Partei vollumfänglich im konkreten verwaltungsgerichtlichen Verfahren erfolgreich gewesen. Daher hat sie auch das Recht, die Kosten des Verfahrens zugesprochen zu bekommen, die die gegenüberliegende Seite (dh die Verwaltungsbehörde) verursacht hat und das unabhängig von dem letztendlichen Erfolg in einem späteren ein- oder mehrmaligen Verwaltungsverfahren oder in einem streitigem verwaltungsgerichtlichen Verfahren.

More...

Alumininij d.d. Mostar at the expiration of the mandate of the FBiH Government - October 2018 -

Aluminij d.d. Mostar na isteku mandata Vlade FBiH - Oktobar 2018. godine -

Author(s): Samir Mušović / Language(s): Bosnian

Keywords: Aluminij d.d. Mostar; pre-election campaign; Bosnia and Herzegovina; social and economics problems;

Nije rijetkost da se značajni društveni i privredni problemi, slučajno ili namjerno, lansiraju u javnost usred predizborne kampanje ili u prva 3-4 mjeseca novog mandatnog perioda. Podešavanje objave vijesti o krupnim aferama i krupnim društvenim problemima u predizbornom periodu ili u prvim mjesecima novih mandata nije slučajno: javna pažnja je zasićena izbornom kampanjom i dodatno, kao u ovom slučaju, dokazanim odsustvom javne pažnje uobičajenim za mjesece ljetnih godišnjih odmora (dovoljno se prisjetiti najpoznatijih vremenskih podešavanja objave loših vijesti u slučajevima poskupljenja osnovnih namirnica i usluga, koje se ćešće objavljuju u trećem večernjem dnevniku, a znatno rjeđe u udarnom terminu drugog TV dnevnika). Tako su vijesti, objavljene krajem mjeseca juna 2018. godine, vezane za smjenu direktora Aluminija d.d. Mostar i istovremena objava vijesti da to preduzeće ima akumulirani gubitak blizu 180 miliona Eura, zadržale javnu pažnju na problemima preduzeća Aluminij Mostar čak i kraće od «tri dana BiH čuđenja», koliko se BiH javnost uobičajeno zadržava na tzv. udarnim problemima.

More...

The Law on State Aid System in Bosnia and Herzegovina - de lege lata and de lege ferenda

Zakon o sistemu državne pomoći u Bosni i Hercegovini - de lege lata i de lege ferenda

Author(s): Samir Sabljica / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; EU; field of state aid; Law on the State Aid System in B&H; European integration;

Based on the various international agreements it has signed, Bosnia and Herzegovina has committed itself to establishing an appropriate normative and institutional framework in the field of state aid. Such a framework should eventually become a compatible to state aid system that is in force in the EU, since Bosnia and Herzegovina's primary goal is to become a member of the EU. The author analyzes the current Law on the State Aid System in B&H. The law has defects in terms of non-compliance with primary and secondary sources of EU law. The author points out such shortcomings as the process of European integration requires full harmonization with the acquis communautaire. The paper gives brief explanations of the origin of state aid from the aspect of economic science, the definition of state aid according to EU rules, the structure of B&H law and recent solutions under the applicable law. Also, the author offers solutions in order for certain provisions of the law to be re-defined in accordance with the acquis communautaire.

More...