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Lišenje života iz samilosti u Krivičnom zakoniku Srbije – odredba koja nije dobila svoje otelotvorenje u sudskoj praksi

Author(s): Dragana Z. Kolarić / Language(s): Serbian

In the field of substantive criminal law in the Republic of Serbia, a fundamental reform was made in 2005, and the Criminal Code of Serbia was passed. The Article 117 regulates a special, new form of criminal offence of murder, previously not contained in the Criminal Code of Serbia – mercy killing as a privileged murder. After almost nine years since the implementation of the Criminal Code, the author re-analyses the provision of Article 117 and tries to answer some questions. Aside from the fact that the application of this qualification has been extremely rare in the case law, the question related to the elements of this offense is often raised, and it refers to the observation that the current law is inconclusive when it comes to mercy killing. The author’s attention is also focused on a comparative review of specific foreign legislations when it comes to regulating the legal status of euthanasia. By analysing the above mentioned solutions, the author suggests several methods in the treatment of this delicate issue. The aim of this paper is to clarify some existing dilemmas regarding this privileged criminal offence. The emphasis is placed on the analysis of the provision of Article 117 of the Criminal Code of Serbia and its evaluation in terms of its acceptability or unacceptability when it comes to its applicability in practice. According to the data of the Statistical Office of the Republic of Serbia, since the entry into force of the Criminal Code of Serbia, there has been no final judgment on any criminal offense under Article 117. It is obvious that this provision has not been viable in practice. For this reason, a series of polemical issues are imposed, in terms of: the conditions under which a behaviour can be subsumed under the legal description of the mercy killing; determining the qualitative difference between this criminal offense and a plan murder; need for widening of criminal zone, etc.

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Zakon o političkim strankama pred Ustavnim sudom Srbije

Author(s): Vladimir Mikić / Language(s): Serbian

The article examines the perspectives of the decision-making of the Constitutional Court of Serbia in the case of examining the constitutionality of several important provisions of the Law on Political Parties of 2009. The constitutional and international legal framework for the exercise of freedom of association (and the establishment of political parties) is explored, and particular attention is given to examining the political and legal intentions and interests that stood behind the adoption of the Law, as well as the grounds for the criticism of its constitutionality. The key question rests in determining the appropriate measure of proportionality of legal measures aiming at reducing effectively the number of political subjects (parties) in Serbia. This author concludes that the bulk of provisions of the Law do not fulfill the request of proportionality and adequacy, particularly regarding the context of the protection of so-called small parties as well as of the parties representing national minorities. Therefore, the possibility of the Constitutional Court of Serbia deciding that the given provisions violated the Constitution of the Republic of Serbia exists and such a decision would be neither arbitrary nor legally unsound.

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Upis činjenica u matičnu knjigu rođenih – rešavanje problema lica koja nisu upisana u matičnu knjigu rođenih u Republici Srbiji

Author(s): Jasmina Benmansur / Language(s): Serbian

Population Registers are the main official records (and reliable information) on personal status of the citizens of the Republic of Serbia and every official record maintained on the citizens or public document issued to the citizens, are based on the personal informations collected and entered into the population registers. The Law provides the presumption of correctness of those informations so that the data contained therein provides legal reliability for any and all proceedings conducted by the competent state authorities related to the exercise and/or determination of civil rights or obligations. Particularly important place in the system of pupulation registers occupies the Register of Births that records all relevant changes to the pesonal status of any citizen from its birth through its legal personality to its death and/or the loss of legal capacity of any natural person. Bearing in mind the above mentioned and in the terms of a citizen that cannot exercise any of his/her rights regarding his/her personal status before the entry of his/her birth in the Register of Births and further in the terms of the government requirements to have available correct, true and precise information about any and all its citizens, it is of particular importance to establish a most expedient solution in normative and practical terms for this right to be exercised under the rule of the law and full legal reliability. Therefore, this paper analyses the legislation, current practice and the results achieved by the competent authorities of the Republic of Serbia in solving problems of the persons born on its territory whose birth was not entered within the statutory deadline in the Register of Births by the competent registrar.

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

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

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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Zaštita ljudskih prava: Kako to rade ombudsmani Bosne i Hercegovine

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

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

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

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

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

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

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

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

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

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

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

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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Pravna priroda ugovora o javnoj nabavi u hrvatskom pravnom poretku

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

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

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

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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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

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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Pravni aspekt isključenja iz političke stranke - slučaj Vuka Jeremića

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

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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Implementiranje antikoruptivnih standarda Ujedinjenih nacija iz perspektive pozitivnog zakonodavstva Republike Srbije

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

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.

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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

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.

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Izbor predsjednika Centralne izborne komisije – pravni aspekti i posljedice odluke

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

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.

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

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

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.

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Analiza medijskog zakonodavstva u Republici Srbiji

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

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.

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

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

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.

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