HISTORY

The Glasnik of the Bar Association of Vojvodina was founded as a professional journal on June 1st 1928 by the Bar Association in Novi Sad, currently the Bar Association of Vojvodina. It is one of the oldest legal journals not only in Serbia, but in the region of the former Yugoslavia, which has been continually published. Since 1981 it has been classified as a journal of legal theory and practice. In the first half of 1996 it established criteria that apply to the rank of scientific publications, while since 2004 it has had the status of a scientific journal, in accordance with the criteria set by the Ministry of Science of the Republic of Serbia. The journal publishes original scientific articles, discussions, legal essays, case studies from the history of law, book reviews, texts which relate to the legal practice and reports on the work of the Bar Association of Vojvodina. The Glasnik primarily publishes legal scholars, professors and assistant professors form faculties of law, together with lawyers and judges, as well as other legal experts, but also experts whose practice relates to law. The journal is published quarterly.

The Bar association of Vojvodina

CURRENT ISSUEIssue 2/2021

The concept of knowledge as a subjective element in the criminal offense of crimes against humanity

Author: Olivera Ševo
Faculty of Law, University of Banja Luka

ABSTRACT: The subject of this paper is the analysis of knowledge as a subjective element in terms of crimes against humanity in international criminal law. Starting from the fact that committing an act within a widespread or systematic attack against a civilian population is a circumstance that turns a “common” crime into a crime against humanity, the paper seeks to answer the question of whether knowledge of committing an act within such an attack is an independent subjective element and whether there is a unified position regarding the necessary content of knowledge in international criminal law. The paper is based on a linguistic, normative, systematic and comparative legal analysis of relevant provisions of international criminal law sources, a documentary analysis of sample judgements of the three most important international courts, as well as a case study which analyzes this subjective element in the legislation and case law of Bosnia and Herzegovina. The results of the research show that in terms of the independence of knowledge as a subjective element in crimes against humanity, there is a relatively consistent position in international criminal law, while in terms of the content of knowledge there is no such agreement.
Keywords: knowledge, subjective element, crime against humanity, constructive knowledge, willful blindness, international criminal courts

CURRENT ISSUEIssue 2/2021

Compensation for material damages in Serbian industrial property law

Author: Bojana Spajić
Ph.D. student of the Faculty of Law University of Novi Sad

ABSTRACT: In the era of the digital revolution and the global market economy, the economic interests of holders of industrial property rights face threats from new and advanced forms of infringement. In order to guarantee the safeguarding of the material status of the rightsholders, standards of protection have been set at the international level as well as within the European Union – with harmonization expected to take place on a global scale. These standards, related to compensation for material damages due to the infringement on industrial property rights, largely deviate from the general rules on compensation for damages. The reason for the deviations lie in the specifics of the authorizations that are inherent to these rights and the intangible nature of the intellectual property that is the subject of the protection: hence the need for specific methods devised to calculate the compensation of damages caused by the infringement on industrial property rights. This paper analyses special rules on compensation for material damages caused by infringement on industrial property rights, observed in domestic law as it has developed from 1995 and onwards. The subject of the analysis are the relics of previous positive law, i.e., triple compensation, and compensation for up to three times the amount of the license fee, as well as the current regulations on the damages set as a lump sum compensation, under which it may not be less than the compensation for the legal use of the subject of protection and compensation equal to the tortfeasor’s gains. The aim of this paper is to propose de lege ferenda norms for an enhanced regulation of the matter of compensation for material damages in the field of industrial property.
Keywords: industrial property law, compensation for material damage, multiple compensation, punitive damages, lump sum compensation

CURRENT ISSUEIssue 2/2021

Initiating the reorganization procedure according to the Law on Bankruptcy. Reorganization vs. prepackaged reorganization plan

Author: Amina Kajević
Ph.D. student, Faculty of Law University of Belgrade

ABSTRACT: This paper discusses the initiation of the reorganization procedure by comparing the initiation of the “classic” type of reorganization and the initiation of the reorganization in accordance with the prepackaged reorganization plan. The analysis of the initiation of these two types of reorganization will be conducted based on an overview of the three elements most important for the initiation of the reorganization procedure within one legal system; namely, when the reorganization procedure is initiated, who is authorized to initiate this procedure and what the mandatory content of the reorganization plan is. The way in which these three elements are arranged can significantly affect the quality of the reorganization plan and its successful implementation. The aim of this paper is to analyze the initiation of two types of reorganization in the Serbian Law on Bankruptcy by comparing these three elements, as well as to point out some controversial issues that arise when initiating these two proceedings.
Keywords: initiating reorganization proceedings, prepackaged reorganization plan, contents of the reorganization plan

CURRENT ISSUEIssue 2/2021

(Il)Legal evidence in criminal procedures in the case law of the Supreme Court of Cassation in 2019 and 2020

Author: Milana Pisarić, Ph.D.
Faculty of Law, University of Novi Sad

ABSTRACT: The Criminal Procedure Code stipulates that court decisions may not be based on evidence which is, directly or indirectly, by itself or in the manner of obtaining it, contrary to the Constitution, this Code, other laws or the generally accepted rules of international law and ratified international treaties, except in proceedings conducted for the purpose of obtaining such evidence. Illegal evidence cannot be used in criminal proceedings and is therefore separated from the case file. If the judgment is based on illegal evidence, it can be challenged by the appeal against the judgment, but also by the request for the protection of legality. The subject of the paper is the analysis of the recent case law of the Supreme Court of Cassation (in the period from January 1, 2019 to December 31, 2020) regarding the requests for the protection of legality stated in connection with illegal evidence.
Keywords: criminal procedure, illegal evidence, Supreme Court of Cassation

CURRENT ISSUEIssue 2/2021

The protection of confidential communication between a lawyer and a client in the case law of the European Court of Human Rights

Author: Dimitrije Đukić
Bar Association of Vojvodina

ABSTRACT: Confidentiality of communication is a very important human right that gains in importance when the communication is conducted between a lawyer and a client. Namely, for a lawyer to be able to adequately represent their client, the client must be sure that the information they entrust to the lawyer will not reach third parties, i.e. that the communication will remain confidential. In this sense, protecting the confidentiality of communication between a lawyer and a client is very important not only for representing the client in each case, but also for the proper functioning of the legal system. This paper aims to establish which articles of the European Convention protect the right to confidential communication between a lawyer and a client and how this communication is protected in practice by the European Court of Human Rights. The paper also examines whether it is possible to prescribe a measure by which such an important right as the right to privileged and confidential communication between a lawyer and a client could be limited and if so under what conditions.
Keywords: European Court of Human Rights, European Convention on Human Rights, communication, confidentiality, right to privacy (art. 6), right to a fair trial (art. 8), lawyer, client

CURRENT ISSUEIssue 2/2021

The development of protections for the right to marry guaranteed by Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

Author: Jovana Vojvodić
Ph.D. student of the Faculty of Law University of Novi Sad

ABSTRACT: Starting from the 21st century, the European Court of Human Rights has changed the approach regarding the interpretation of the right to marry protected under Article 12 of the European Convention on Human Rights. The new liberal attitude towards the content of this right has opened up opportunities for new categories of persons to enter into marriage and start a family. The question arises whether the European Court of Human Rights will continue with this trend of interpretation and what consequences that could cause for the international understanding of marriage and family.
Keywords: European Convention for the Protection of Human Rights and Fundamental Freedoms, European Court of Human Rights, right to marry, Article 12.

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Issue 1/2021

THE EMPLOYMENT AND CONDUCT OF UNDERCOVER AGENTS Ethical challenges of legal solutions

Author: Marija Ljubinković
Ph.D. student University of Criminal Investigation and Police Studies

ABSTRACT: The challenge of proving the crimes of the 21st century lies largely with the constant progress and improvement of the methods and ways of action of the perpetrators, which is especially characteristic of the most serious forms of crime that threaten the security of the state and all its citizens. Therefore, there is a need for specific state action both in the prevention of these crimes and in their suppression. This includes the use of special evidentiary actions provided by law. As the most complex one, Serbian legislation provides for the action of employing an undercover agent. The key feature of the undercover agent’s actions is contained in Art. 185, para. 4 of the Criminal Procedure Code, which prescribes that it is prohibited and punishable for an undercover agent to incite the commission of a criminal offense. However, other legislatures, such as the U.S. one, are familiar with the institute of the agent provocateur. The question that arises is related to ethics, but also the efficiency of various legal solutions, and the aim of this research is a type of scientific explanation of the relationship of both legal solutions with ethics in general, but also with numerous legal institutes that may be in danger in case of provocation. In conducting this research, in addition to analytical-synthetic and inductive-deductive methods, the statistical method also had an important role, as a short survey was conducted with 82 random respondents.
Keywords: undercover agent, agent provocateur, special evidence gathering actions, ethics, comparative legislation, moral responsibility, legal responsibility

Issue 1/2021

The position of the injured party in a prosecutorial investigation

Author: Aleksandar Kvastek
Faculty of Security Studies, University of Belgrade

ABSTRACT: This paper will analyse the position of the injured party in an investigation conducted by the public prosecutor’s office, which was implemented in the Republic of Serbia in 2011. After we have given the definitions of the injured party and the difference with the term victim, as a criminological category, we will discuss whether the Serbian Criminal Procedure Code (2011) takes a step back when it comes to the position of the injured party in criminal proceedings. First of all, the ability of the injured party to become a subsidiary prosecutor was limited, as it was prescribed that the injured party can take over criminal prosecution only after the confirmation of the public prosecutor’s indictment, so the opportunity to acts as a subsidiary prosecutor does not exist in the manner in which it existed under the Criminal Procedure Code from 2001 of the Federal Republic of Yugoslavia. Then, we shall demonstrate how the position of the injured party was exacerbated in relation to deferred prosecution, as the injured party cannot submit an objection to the higher public prosecutor to re-examine the decision not to prosecute and the injured party’s consent is not needed for this decision. The research conducted among deputy public prosecutors and attorneys for the purposes of this paper confirms the presumption that the Criminal Procedure Code in force downgraded the injured party’s impact on the criminal proceedings.
Keywords: injured party, public prosecutor, investigation, objection, rights, duties

Issue 1/2021

THE GENERAL INEFFECTIVENESS OF THE APPEAL AGAINST THE CUSTODY ORDER Final Research Results

Author: Aleksandar Todorović, Ph.D.
Vojvodina Bar Association

ABSTRACT: This paper will present the results of the completed research which relates to the issue of the effectiveness of the appeal against the custody order pursuant to Article 294 of the Serbian Criminal Procedure Code. The research which the paper reports on was conducted on the entire territory of the Republic of Serbia, encompassed all Basic and Higher Courts, as well as a survey of more than 300 lawyers. Even though most colleagues will not be surprised by the results, the research has proven to be useful in multiple ways, primarily because it factually and comprehensively demonstrates the concrete situation regarding the effectiveness of the legal remedy in question. This research documents what was the general (but not empirically tested) impression in legal praxis.
Keywords: custody order, effectiveness, legal remedy

Issue 1/2021

Is a shop owner allowed to expel un wanted customers from his/her premises?

Author: Luka Breneselović , Ph.D.
Trainee Lawyer at the Bar Association of Belgrade

ABSTRACT: The aim of this paper is to try to correct the opinion present in the business practice of larger stores according to which the owners and users of business premises cannot expel unwanted customers / consumers from the facility. This question is currently relevant because of customers who refuse to wear protective face masks in supermarkets, pharmacies, and other stores. First, the paper demonstrates the importance of the concept of property as recognized in Serbian law, and afterwards the presentation is supplemented by comparative legal insights into foreign doctrine (the so-called privates Hausrecht of German law). The scope and limitations of the right to manage a facility, as a property right, and the issue of execution, i.e. factual protection of that right will be discussed. There are concerns that the lack of reaction of the responsible person in the store to non-compliance with epidemiological regulations could be the basis for material responsibility of the store owner and that person, but also a set of facts that increase the risk of exposure to criminal prosecution.
Keywords: property right, right to manage facilities, non-compliance with health regulations, corona virus, Hausrecht.

Issue 1/2021

Special protections against employment termination for workers with family responsibilities

Author: Kristina Balnožan
Ph.D. student, Faculty of Law, University of Belgrade

ABSTRACT: Loss of employment is one of the most stressful life events for everyone, especially for those with families. An employed mother – and increasingly a father – have family responsibilities towards their children, and these duties are often taken on, due to the decomposition of the family unit, by so-called single parents. Family responsibilities towards children are not, however, the only ones: one important segment of the responsibilities of the working-age population is the care for elderly and/or sick relatives and/or spouses. In this paper, it will be demonstrated that employees with family responsibilities are not a unique legal category. Family responsibilities must not, as such, constitute a valid reason for the termination of employment. The research below, therefore, seeks to present special protections against the termination of employment contracts of different categories of employees with obligations toward children, and to check whether and in what way such protections are provided to employees with obligations to other family members, since special protections against the termination of the employment contracts is explicitly guaranteed in Serbian law to the employees only during pregnancy and absence from work due to special/child care. In this regard, international standards relevant to the subject of the research are considered, as well as certain foreign systems that differently take into account the family situation of employees, using primarily the normative, comparative law method.
Keywords: termination of an employment contract, special protection, unjustified reasons for dismissal, workers with family responsibilities, child care, pregnancy, care and support of family members

Issue 1/2021

Problems with the execution of house arrest

Author: Marina Brašovan Delić
Ph.D. Student Faculty of Law, University of Belgrade

ABSTRACT: In the Republic of Serbia, out of all alternative sanctions, the courts have most often issued house arrest, in addition to a suspended sentence. Besides a review of the legislation governing the subject matter, the author attempts to point out the problems that the courts and trust agents encounter in practice when executing the sanction of house arrest. Inadequate application of the regulations governing the execution of house arrest, along with technical and personnel shortcomings faced by the Trust Agency of the Administration for the Execution of Penitentiary Sanctions in the Republic of Serbia, may lead to a partial or temporary inability to execute the sentence. By using the available statistics on imposed criminal sanctions, examining the opinions of the judges and the views of the trust agents, and evaluating data from other research conducted in this area, the author attempts to answer the question of whether and how the existing problems with house arrest in Serbia could be overcome. Eliminating the formal and technical deficiencies in the execution should demonstrate the extent to which the imposition of house arrest achieves the aims of general and special preventive measures, while bearing in mind that, in certain situations in practice, the sentence of house arrest remains unexecuted.
Keywords: house arrest, the manner of executing an imprisonment sentence, alternative sanctions, trust agent for execution

Issue 1/2021

RELEASE ON PAROLE Aspects of criminal law and procedure

Author: Svetlana Đuričić Ph.D.
Higher Court in Sremska Mitrovica

ABSTRACT: Release on parole dates back to the middle of the 19th century and has roots in the progressive and Irish systems for executing punishment regarding persons deprived of liberty. Namely, the third phase in the execution of the sanction of imprisonment in the progressive system is called – release on parole, while it was the fourth phase in the Irish system. The Irish system for executing imprisonment was accepted in a large number of countries, including pre-war Yugoslavia. Modelled on this system, several prisons were created in Yugoslavia – in Zenica, Sremska Mitrovica, and Lepoglava. The purpose of release on parole is for the convicted person to behave properly while serving the imprisonment sentence, fulfil their work obligations, and not commit another criminal act for the duration of the sentence, all with the goal of re-socialization. Consequently, expanding the prohibition on the release on parole for certain criminal offences is contrary to the primary purpose of punishment as prescribed by art. 42, para. 1, point 1 of the Criminal Code; which is preventing the perpetrator from committing criminal acts and influencing them to not commit criminal acts in the future. Sentencing and executing sanctions must not be in retaliation for the acts committed, as it would be aligned with the theory of intimidation by punishment which has long since been abandoned; at present, the modern theory on the purpose of sanctions is widely represented, the theory of re-socialization, which has the individualization of the punishment of deprivation of liberty at the forefront, and that individualization is important to the re-education of the convicted person.
Keywords: release on parole, punishment, the purpose of punishment, re-socialization, re-education