CURRENT ISSUEIssue 4/2023
Environmental Protection under Constitutional Law
Author:
Milan Škulić Ph.D
Faculty of Law, University of Belgrade
ABSTRACT: This paper explains the importance of the protection of the environment under constitutional law. In the context of the protection of the environment under constitutional law, the general ratio legis of the response of criminal law to environmental pollution is analyzed, which, as usual, is based on general constitutional provisions. The paper defines the basic elements of environmental protection rights both in national legal frameworks and from the perspective of the effects of relevant international legal sources, which are applied in accordance with constitutional rules, either through so-called implementation mechanisms or sometimes directly. The paper specifically explains the role of the Constitutional Court in the protection of the environment, illustrated by examples of relevant decisions of this Court, both in the realm of normative control of constitutionality and legality and in proceedings initiated through constitutional appeals.
Keywords: Constitution, environment, constitutional law, protection under constitutional law, protection through criminal law
CURRENT ISSUEIssue 4/2023
Victimological Analysis of the Risk of Victimization Due to Climate Change in Bosnia and Herzegovina
Authors:
Miodrag N. Simović Ph.D
University of Bihać, Faculty of Law
Marina M. Simović Ph.D
Pan-European University Apron in Banda Luka, Faculty of Legal Studies
ABSTRACT: The idea that every human being has the right to a clean and healthy environment has captivated the imagination of people worldwide. Is this the case with environmental human rights? The United Nations Charter (1945), the Universal Declaration of Human Rights (1948), and the two human rights covenants – The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (both were adopted in 1966 and entered into force in 1977) omit any reference to whether being human encompasses such a right. Socioeconomic and cultural rights include the rights to dignity, education, health, food, water, sick leave, family leave, and employment, while the right to a healthy environment presents a boundary between these and various other rights. In an attempt to address this issue, the authors first analyze the meaning of the right to environmental protection. They specifically scrutinize the outcomes of the European Climate Conference regarding the scientific contributions to climate change transformations on the European continent, held on May 15th and 16th, 2023, in Warsaw. Additionally, the paper presents insights into climate change and the victimization of citizens, along with the risks of victimization associated with these changes. Building on the discussion, special attention is directed towards the issue of the relationship between Bosnia and Herzegovina and the United Nations Convention on the Law of the Sea (UNCLOS). To achieve an adequate standardization and regulation level, urgent preventive measures are proposed to address victimization in the context of climate change in Bosnia and Herzegovina with the aim of ensuring the right of all citizens to live in a safe, clean, healthy, and sustainable environment.
Keywords: climate change, Bosnia and Herzegovina, victimization, environment, water
CURRENT ISSUEIssue 4/2023
Review of the Ecocentric Model of Environmental Protection in Croatian Criminal Law. Ten Years after EU Accession
Author:
Igor Vuletić Ph.D
University of Osijek
ABSTRACT: This paper discusses the issue of the protection of the environment through criminal law, which represents one of the problems of contemporary criminal law. With the entry into force of the new substantive criminal legislation in 2013, the Croatian legislator implemented the so-called ecocentric model of the protection of the environment through criminal law, fully adopting European and international standards. More than ten years later, case law has formed regarding certain offenses. However, for most of the offenses in this category, it has been observed that their practical applicability is virtually non-existent. The author analyzes the characteristics of those criminal offenses for which there is available case law, presents selected practical examples, points out the views of other authors, and offers personal observations on the effectiveness and experiences of applying the Croatian legislative model.
Keywords: environment, liability, culpability, attempt, punishment, intent, negligence, legal entities, criminal complaint
CURRENT ISSUEIssue 4/2023
Specialization of Justice System Officials and Citizen Awareness as Instruments for Combating Environmental Crimes
Author:
Ivana Miljuš Ph.D
Faculty of Law, University of Belgrade
ABSTRACT: Specialization, contentful training, and continuous professional growth of prosecutors and judges in the domain of ecological crimes, joint education programs for criminal justice organs, police officers and inspectors, the increase in material and human resources, especially in the domain of inspections, are all necessary requirements for the improvement in the detection, investigation, evidence collection, and prevention of ecological crimes. In this paper, the author first analyzes the significance of the specialization of public office holders, prosecutors and judges, when it comes to ecological crimes. One of the current priorities of the EU is the struggle against ecological crime, especially certain types of ecological crime. The specialization of criminal justice office holders, especially prosecutors, is the norm in certain countries. Insufficient public awareness about the consequences of ecological crimes and the damage they cause, their victims, their “profitability”, and their scope is a significant obstacle for the prevention, detection, and reduction of ecological crime. Numerous international legal documents emphasize the imperative of improving public awareness about ecological crimes. The author relates the improvement in public awareness with the right of “members of the public” to access criminal justice and the role of the “concerned public” in a criminal procedure, above all as persons filing criminal complaints, often in the form of citizen groups/associations or in relation to the participation in criminal procedures for these crimes.
Keywords: ecological crimes, specialization of prosecutors, specialization of judges, persons filing criminal complaints, “concerned public”
CURRENT ISSUEIssue 4/2023
European Convention for the Protection of Human Rights and Fundamental Freedoms and the Right to a Healthy Environment
Author:
Jelena Kostić Ph.D
Institute of Comparative Law, Belgrade, Serbia
ABSTRACT: The right to a healthy environment is not explicitly mentioned in the European Convention for the Protection of Human Rights and Fundamental Freedoms from 1950. The mentioned right is more recent and belongs to human rights of the third generation In the final Declaration of the United Nations conference on the human environment held in Stockholm in 1972, the basic human right to freedom, equality and adequate living conditions in an environment that allows an individual to live in dignity and wellbeing is mentioned for the first time. Although the right to a healthy environment is not mentioned in the European Convention for the Protection of Human Rights and Fundamental Freedoms, it is still given importance through the judgments of the European Court of Human Rights, which is responsible for considering violations of the said Convention. The protection of that right is linked to other rights guaranteed by the Convention, such as, for example, the right to life, right to private and family life, etc. The aim of the research in this paper is to indicate the importance of establishing a guarantee of the right to a healthy environment, as well as the increasing importance of its protection as a prerequisite for the enjoyment of some other basic human rights. The paper uses the method of content analysis. In addition to the analysis of the Draft Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, we also analyze the content of the verdicts of the European Court of Human Rights.
Keywords: European Convention for the Protection of Human Rights, right to a healthy environment, right to life, improvement of protection
CURRENT ISSUEIssue 4/2023
Efficiency of the Protection of the Environment through Misdemeanor Law in Belgrade from 2017 to 2022
Authors:
Aleksandar Stevanović
Institute of Criminological and Sociological Research
Vera Stanković, Ph.D.
Institute of Criminological and Sociological Research
ABSTRACT: The authors aim to present the mechanism for the protection of the environment through misdemeanor law in Belgrade for the period from 2017 to 2022, analyzing its effectiveness in broad terms. The five-year period covered by this study is determined as a period in which certain trends can be recognized and followed, both in terms of the structure of prohibited behaviors directed against the environment and regarding the activities undertaken by competent administrative authorities and misdemeanor courts as a form of formal response. The study begins with the concept of the environment defined in the Environmental Protection Law1. The study analyzes those misdemeanors whose commission changes and/or can change the states and conditions in the environment. The effectiveness of protection through misdemeanor law is analyzed in three aspects. First, the scope of the prescribed offenses is considered. On the other hand, the complete absence of prescribing certain actions directed against the environment as misdemeanors is observed. Further, the quality of the misdemeanor provisions themselves is considered, especially in terms of their sufficient specificity to ensure their straightforward application by administrative and judicial authorities. Finally, the outcomes of misdemeanor proceedings related to offenses against the environment are analyzed. Aiming to further dispel the myth of “environmental crimes” as victimless crimes, the authors cite and explain the effects of the most common misdemeanors on both the environment and human life and health.
Keywords: misdemeanors, environment, legal protection, harmful consequences
CURRENT ISSUEIssue 4/2023
Decision of the Assembly to File a Lawsuit (Initiate a Dispute) for the Expulsion of a Member from a Limited Liability Company
Author:
Vladimir Marjanski Ph.D
University of Novi Sad
ABSTRACT: The expulsion of a member from a limited liability company is one of the bases for the termination of membership in multi-member limited liability companies. The Company Law distinguishes between two procedures for the expulsion of a member from a limited liability company: 1) expulsion of a member by the decision of the assembly (so-called extrajudicial expulsion) and 2) expulsion of a member by court decision, depending on the reasons for the expulsion. The decision of the assembly to file a lawsuit (initiate a dispute) for the expulsion of a member from the company is, in Serbian law, a fundamental prerequisite for conducting litigation proceedings for the expulsion of a member when the company appears as the plaintiff. Although this decision represents only an initial act that creates the authorization to file a lawsuit for the expulsion of a member from the company, its detailed analysis opens up a range of significant issues. Regarding the decision of the assembly to file a lawsuit (initiate a dispute) for the expulsion of a member from the company, the paper analyzes several of the most significant issues: the legal nature of this decision and its connection with the content of the lawsuit for the expulsion of a member, issues related to the process of making this decision (the issue of competence, quorum, majority required for making a decision, persons authorized to vote on making this decision, the issue of who can initiate the making of this decision), as well as the issue of its content.
Keywords: expulsion of a member, decision of assembly to file a lawsuit for expulsion, lawsuit for the expulsion of a member from a company, limited liability company
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Issue 3/2023
Safeguarding Individual and Collective Employee Rights in the Event of a Transfer of Undertakings
Author:
Tijana R. Kovačević
University of Belgrade
ABSTRACT: This paper meticulously analyzes the mechanisms for safeguarding the individual and collective rights of employees in the event of a transfer to a new employer. In this context, the protection of employees is facilitated through the rules governing the automatic transfer of employment contracts from the “old” to the “new” employer while maintaining identical working conditions. Consequently, the status of employees remains unaffected irrespective of any alterations in the activities undertaken by the new employer and decisions concerning the company transfer. In this sense, the assurance of job security serves as a counterbalance to the managerial authority of the employer and the freedom of entrepreneurship. The essence of the principle of employment security is encapsulated in the prohibition of initiating dismissals by the employer in the event of structural changes. Accordingly, the successor employer assumes the rights and obligations of the predecessor while preserving the legal status, thereby safeguarding the employees impacted by the transfer. Furthermore, legal continuity remains unbroken, even in terms of rights and obligations emanating from collective labor agreements, which continue to produce legal effects even under the successor employer.
Keywords: transfer of undertakings, transfer of company, employment contract
Issue 3/2023
Working Outside the Employer’s Premises. Legal Regime and Organizational Challenges During and After the Pandemic of the Infectious Disease Covid-19
Author:
Andrijana Ristić
University of Belgrade
ABSTRACT: The outbreak of the epidemic of the infectious disease Covid-19 has resulted in greater relevance for working outside an employer’s premises all around the world. As, until then, this way of organizing work was not so frequent, due to the cautious attitude of employers and employees towards it, the regulation of this issue was not given adequate attention at the domestic and international levels. In this paper, the author will try to answer the question of whether the attitudes of employees and employers towards this manner of organizing work have changed after the emergence of extraordinary epidemiological circumstances and whether, as a result, it will become more frequent in the future. In addition, the author will try to determine whether work outside the employer’s premises is adequately regulated in the Republic of Serbia, as well as whether and which issues need to be more comprehensively regulated in light of its increased importance. To obtain answers to the abovementioned questions, the author conducted a survey with employees who, due to the introduction of the state of emergency in the Republic of Serbia, began to work outside the employer’s premises. The stated results will be evaluated in light of the results of surveys conducted at the level of the European Union, while the regulations regarding this way of organizing work will be considered via an analysis of laws and by-laws that regulate this issue in the Republic of Serbia.
Keywords: work outside the employer’s premises, infectious disease Covid-19, workplace, work from home, remote work
Issue 3/2023
The Relationship Between Disciplinary and Dismissal Procedures in the Labor Law of the Republic of Serbia
Author:
Milica Midžović
University of Pristina
ABSTRACT: In the labor law of the Republic of Serbia, in the general employment regime, the institute of disciplinary liability is regulated within the institute of termination of employment, i.e., legal provisions on termination of employment contracts due to violation of work obligations and non-compliance with work discipline. However, the process of establishing employees’ liability for severe breaches of work obligations and failure to adhere to work discipline during the employment contract termination notice period may not constitute an adequate solution. Firstly, this is due to the relevant regulations not addressing, even at a fundamental level, the specifics of the disciplinary procedure. Instead, they establish liability for work obligation breaches and failure to comply with work discipline within the termination procedure, where disciplinary actions are also determined and applied. Given that the mechanisms that limit the abuse of the employer’s disciplinary powers are significantly weakened, the author points out the necessity of re-examining the concept of disciplinary liability and disciplinary procedure. Although disciplinary and dismissal procedures have certain similarities, they are two distinct labor law institutes with different objectives. By applying the normative and comparative legal methods, and analyzing the results obtained through empirical research and case law, the author will present the observed problems related to the current regulation of these institutes and propose potential solutions de lege ferenda.
Keywords: breach of work obligation, non-compliance with work discipline, disciplinary liability, disciplinary procedure, dismissal procedure
Issue 3/2023
The Importance of the Principle of Equal Treatment of Men and Women in European Union Law
Author:
Jovana Rajić Ćalić
Institute of Comparative Law in Belgrade
ABSTRACT: The issue of equal treatment of men and women represents an inexhaustible topic for research. Since the problem of gender-based discrimination is closely related to the establishment of equal treatment, the investigation of this topic should begin at the supranational level, as is the system of law in the European Union. The origin and development of the principle of equal treatment within the community of European states was gradual, leaving room for further refinements. However, the normative framework that was set was not accompanied by practical changes in providing equal opportunities for women in employment and at work, hence scholars continue to deal with the phenomenon of the gender pay gap, job segregation, the glass ceiling, and the problem of reconciling family and professional life, as a consequence of the unequal position of men and women in society. This paper examines the origin and development of the principle of equal treatment within the European Union, with the initial hypothesis that even the current normative framework is not capable of preventing the consequences of gender-based discrimination that exist in practice.
Keywords: equal treatment, gender equality, European Union law, prohibition of discrimination
Issue 3/2023
Substantive Criminal Law of the Medicrime Convention and the Criminal Legislature of Bosnia and Herzegovina. The Ratio of Harmony and Disharmony
Author:
Filip Novaković
The Institution of Human Rights Ombudsman of Bosnia and Herzegovina
ABSTRACT: The trade in counterfeit medical products is a growing global crime industry (especially in the domain of organized crime), which represents a big threat to natural persons, i.e., patients, but also to healthcare systems. The circulation and sale of counterfeit medical products takes place through unregulated channels (on the side of the road, in a marketplace, online, or even in bars, nightclubs or bakeries). The Convention of the Council of Europe on counterfeit medical products and other illegal acts that include threats to public health represents the first international agreement of that kind, that is, an international instrument that establishes a legal framework for the fight against this criminal black market. It criminalizes certain actions, prescribes certain provisions related to the criminal justice procedure, protects the rights of victims and improves national and international cooperation in criminal justice matters.
Keywords: counterfeit medical products, transnational crime, prohibition against discrimination, the responsibilities of legal persons, Council of Europe
Issue 3/2023
Administrative, Institutional and Political Budget Control. Theoretical Aspects with a Short Overview of some Positive Law Solutions of the Republic of Serbia
Author:
Stefan Milić
Faculty of Law, University of Niš
ABSTRACT: The modern state plays a significant role in securing public resources in order to provide them to all of its citizens. The state needs to secure a certain amount of income to perform this function. The institution that best exemplifies that manner in which the state acquires and directs its income is the budget. Given that a budget sets forth the financial plans for a specific period in detail, the process of creating and controlling a budget is very significant. An efficient mechanism of controlling the creation and implementation of the budget needs to exist in order to ensure that the acquired state income is managed to the benefit of the citizens. Budget control can be performed by administrative bodies, independent bodies and the parliament, as the body that adopts the budget and the final financial statement. Thus, the subject of this paper is administrative, institutional and political budget control. Throughout the paper, the author will also provide a brief overview of some positive law solutions from the Republic of Serbia. Administrative control is based on the hierarchical principle, institutional control is performed by auditing institutions, while political control is conducted by the parliament, as the highest representative body.
Keywords: budget, budget control, administrative budget control, state audit institution
Issue 3/2023
Criteria for Assessing the Best Interests of the Child in Proceedings for the Protection of Children’s Rights
Author:
Ljubica Mihajlović
Basic Court in Niš, Faculty of Law in Niš