The Bar association of Vojvodina

CURRENT ISSUEIssue 2/2022

The effectiveness of the domestic claims protection system for employees in the event of employer bankruptcy

Author: Tijana Kovačević
Ph.D. Student Faculty of Law University of Belgrade

ABSTRACT: In this paper, the author analyses the ways in which the claims of employees in bankruptcy proceedings against their employer are protected. The first part of the paper discusses various modalities of protection that are applied alone or in combination with other means, all in order to provide a better protection framework for employees in bankruptcy. The central part of the paper is dedicated to the issue of the effectiveness of the Serbian protection system, which is measured by the number of settled claims of this type for creditors in bankruptcy proceedings, i.e. the number of upheld claims before the Solidarity Fund. In order to achieve the desired goal, it is necessary to place the protection of employees’ claims in a broader context, which implies the harmony of the institutes of labour and bankruptcy law. As this is not the case in Serbia, the author points out a number of problems that arise in practice as a result, which were identified through interviews with employees of the Solidarity Fund and an analysis of reports on the work of this institution published since its establishment. At the very end, a comparative review shows that labour law mechanisms for the protection of employees are limited, and that, in that sense, expanding them to employers who have not initiated formal bankruptcy proceedings could be considered (with adequate adjustments). It is a unique theoretical proposal that deserves attention since the paper starts from the hypothesis that the system of protection of employees in terms of unsettled claims would be much more effective if they were more familiar with the work of the Solidarity Fund and if the way in which the Fund’s work is organized was different.
Keywords: employees, bankruptcy, Solidarity Fund, priority claims, guarantee of payment of unsettled claims, Republic of Serbia

CURRENT ISSUEIssue 2/2022

The use of software for monitoring employees’ work performance and the termination of employment

Author: Darko Božičić, Ph.D.
Faculty of Law, University of Novi Sad

ABSTRACT: The widespread use of information technologies has significantly changed how people live and work. Modern production links cannot be imagined without the presence of various IT solutions in the work process. Their main feature is that they speed up and facilitate the work process itself, making it more productive. However, the use of such technology also raises various legal issues. One of them concerns the application of various software solutions for monitoring employees’ work. The data obtained by the employer using such software solutions can lead to termination. This paper attempts to point out the key labour law issues in the termination of employment contracts due to the use of various software for monitoring the performance of employees, as well as to offer answers to overcome them.
Keywords: termination, monitoring, software for monitoring the performance of employees

CURRENT ISSUEIssue 2/2022

Non-competes in employment contracts – (un)justified restrictions on the freedom to work

Author: Mina Kuzminac
Ph.D. Student Faculty of Law University of Belgrade

ABSTRACT: The author analyses the normative and practical aspects of non-competes as a labour law institute. The hypothesis presented in the paper is that although non-compete clauses should exist, there is a need to further limit the inclusion of such clauses in employment contracts (especially post-contractual non-competes), so that there would not be an unjustified limitation on the freedom to work. The aim of the paper is to present the advantages and disadvantages of non-competes from the (opposed) perspectives of the employer and employee, and to indicate which provisions in the Serbian legal framework should potentially be revised in order to avoid employers abusing non-competes in practice. The paper contains an analysis of the legal framework in Serbia and a brief overview of solutions from certain European Union member states which could be utilized as guidelines for amending Serbian legislation, as well as an analysis of the results of a survey conducted through a questionnaire which demonstrates that employees are not very familiar with non-competes. Finally, the author conducted interviews with respondents who have or have had non-competes in their employment contract. Based on the interviews, it was concluded that employees agree to the non-competes out of fear of not getting employed, despite believing that there is no justified basis for such a clause.
Keywords: non-compete clause, employment contract, loyalty to the employer, freedom to work, forced labour

CURRENT ISSUEIssue 2/2022

Prohibition on the burning of crop residues on agricultural land

Author: Sofija Nikolić Popadić
Institute of Social Sciences

ABSTRACT: Burning plant residues is a practice that some farmers apply on agricultural land after the harvest. It causes numerous harmful effects on the land, environment, climate, and can endanger the lives of people, animals and property. This paper analyzes the legal regulations of the European Union and individual member states in order to find an answer to the question of how to regulate the ban on burning crop residues. Given that a large number of fires occur in the Republic of Serbia every year in the post-harvest period, special attention is paid to the analysis of domestic regulations to find answers to the question of whether this decades-long problem is caused by inadequate legal regulations or whether the existing regulations are not applied properly.
Keywords: agricultural land, burning of crop residues, fire protection, Common Agricultural Policy of the European Union, cross-compliance, environmental protection

CURRENT ISSUEIssue 2/2022

Between democracy and dictatorship – Hybrid Regime and rule of law

Author: Marica Mišić
Ph.D. Student Faculty of Law University of Niš

ABSTRACT: Past and on-going political affairs linked to the pandemic, particularly in Serbia (which fits the concept of a hybrid regime), created discussions among some lawyers on whether the President’s declaration of a state of emergency was constitutional or not. This is the motivation for a Kelsen – Schmitt debate about who ought to be the guardian of the constitution and drawing some parallels with contemporary hybrid regimes. Some of the problems that arise in hybrid regimes are in relation to the rule of law, the role of the parliament and the constitution. Most contemporary constitutions are based on the rule of law, which is exercised through pluralism, free and fair elections, constitutional guarantees of human and minority rights, separation of powers, an independent judiciary and obedience of the constitution and the law. Using Serbia as an example, we can notice that the rule of law and the role of parliament as the bearer of constituent and legislative authority are endangered by potential dictatorships in hybrid regimes.
Keywords: dictatorship, democracy, rule of law, hybrid regime, constitution

CURRENT ISSUEIssue 2/2022

The interpretation of Andrić’s doctoral dissertation through the theory of historical institutionalism

Author: Benjamin Nurkić
Ph.D. student Faculty of Law in Tuzla

ABSTRACT: Andrić’s doctoral dissertation, titled “Development of spiritual life in Bosnia under the influence of Turkish rule,” has so far initiated many discussions, mostly criticism of the methodology used by Andrić in this dissertation, but also many criticisms related to challenging the scientific character of the dissertation itself. In this paper, the author focuses on a completely different segment of Andrić’s dissertation, which previous analyses and critiques of Andrić’s dissertation have not covered. The problem of corruption in the Ottoman Empire shall be the subject of the analysis, and certainly the problem of corruption in Bosnia as part of the Ottoman Empire. The paper analyses the scientific basis of Andrić’s claims in the dissertation on the ubiquity of corruption in the Ottoman Empire, and the possible impact of the corruption of Ottoman institutions on the development of institutions in Bosnia and Herzegovina. The author explains the importance of Andrić’s dissertation for a better understanding of the problem of corruption in the functioning of the institutions of Bosnia and Herzegovina with the theory of historical institutionalism.
Keywords: Ivo Andrić, corruption, Ottoman Empire, historical institutionalism, the rule of law

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Issue 1/2022

The patrimonial ecclesiastical court in Dušan’s Code

Author: Stefan V. Stojanović
Research Assistant at the Innovation Center, University of Niš

ABSTRACT: In medieval Serbia, in addition to administrative and economic immunity, the Church also enjoyed judicial immunity. It had the right to judge the clergy (class court), all Orthodox believers in certain civil and criminal matters, but like any feudal lord, it also had jurisdiction over the inhabitants of church and monastery estates (church people), judging them as a patrimonial court. The subject of the research is the ecclesiastical patrimonial court in Serbian medieval law. First, a legal-historical analysis of this institute from monastery charters will be performed and then from the most valuable Serbian medieval legal monument, Dušan’s Code. The basic question is whether the Code only confirmed the existing jurisdiction of the ecclesiastical patrimonial court or whether it introduced certain changes in this area. If there were any changes, it is important to recognize what they were, what they consist of and what the basic motive of the legislator for prescribing them was. The ecclesiastical patrimonial court was without a doubt competent for internal disputes between people of the same monastery, but it should be determined how the jurisdiction in the, so-called, mixed disputes was determined. Further, did Dušan’s Code give over jurisdiction to the Church regarding disputes that were otherwise the domain of the ruler’s court? Finally, the role and importance of the procedural institutions of appeal, transference and supplication in Serbian medieval law are emphasized.
Keywords: church, trial, Middle Ages, Dušan’s Code, Serbian medieval law

Issue 1/2022

Efficiency in the conduct of public enforcement officers in a special enforcement procedure for the purpose of settling monetary claims arising from utility services and related activities. The example of Serbian law

Author: Stojana Petrović, Ph.D.
Faculty of Law, University of Banja Luka

ABSTRACT: Public enforcement officers were introduced into the law of Serbia and into the legislation of countries in the region with the aim of establishing a more efficient system of enforcement. In contemporary legal history, the first public enforcement officers in Serbia were appointed in 2012. However, so far no study, based on scientific methodology, on whether their appointment has achieved the set goal has been published. Domestic procedural theory is still largely based on the almost dogmatic assumption that entrusting judicial procedural powers to public enforcement officers has contributed to efficiency, especially in enforcement proceedings for settling monetary claims arising from utility services and related activities, compared to the previous inefficiency of the courts. The t-test determined the statistical significance of the correlations of individual efficiency variables set by CEPEJ, on a sample of public enforcement officers appointed for the territories of selected courts in Serbia. By applying statistical methods, it was examined whether a satisfactory clearance rate was achieved in the enforcement procedure, whether this special enforcement procedure was expedited, and whether the number of unresolved cases was reduced in these proceedings, which would indicate the efficiency of public enforcement officers regarding these procedures wherein they decide on the motion for enforcement and conduct the enforcement. The determined values of the observed variables in the observed sample indicate that the legislator in Serbia, by introducing public enforcement officers, did not achieve the promised efficiency of this special enforcement procedure.
Keywords: efficiency of the enforcement procedure, public enforcement officers, CEPEJ methodology for determining efficiency

Issue 1/2022

Sentence mitigation for the criminal offence of aggravated theft in the case law of the Basic Court in Niš

Author: Anita Ilić Antanasijević, Ph.D.

ABSTRACT: The subject analysis of the criminal offense of aggravated theft in the case law of the Basic Court in Niš was performed in two ways, i.e., through two forms of research: insight into court cases and insight into court statistics from the annual work reports for the period 2010 – 2018. The institute of sentence mitigation, which was analyzed in connection with the abovementioned criminal offense, includes two segments of work. Namely, the analysis examined the ratio of the number of reported, indicted, convicted and acquitted persons, that is, persons whose sentences were reduced, and the application of certain mitigating circumstances which the Court took into account when mitigating the sentence was analyzed. When it comes to the application of certain mitigating circumstances which the Court took into account when mitigating the sentence, the research considered the following: a) age of the defendant, b) financial status of the defendant, c) personal circumstances of the defendant, d) family circumstances of the defendant, e) previous conviction of the defendant, f) behavior of the perpetrator after the committed crime, g) the relationship of the defendant with the injured party, h) confession, i) remorse of the defendant, and i) health condition of the defendant. The aim of the research was to analyze the application of the observed institute in practice by applying scientific methods and pointing out the existing problems in its implementation, in order to potentially eliminate them and possibly solve them in practice.
Keywords: aggravated theft, sentence mitigation, punitive policies, Basic Court in Niš

Issue 1/2022

Humanitarian intervention in the context of the crime of aggression under Article 8 bis of the Rome Statute of the International Criminal Court

Author: Jelena Radmanović
Ph.D. student Faculty of Law, University of Novi Sad

ABSTRACT: Even though it does not represent a new concept in international law, the notion of humanitarian intervention still causes numerous controversies when it comes to its content and applicability. Since this institute is tightly related to situations characterized by the use of force in international relations, the potential application of the institute of humanitarian intervention belongs to the domain of international criminal law, particularly in reference to the crime of aggression from Article 8 bis of the Rome Statute, which criminalizes the use of force outside of the boundaries set by the UN Charter. This article attempts to provide an answer to the question whether humanitarian intervention, if it were accepted as part of international customary law, can affect the application of the Rome Statute. In addition to the analysis of the significance of humanitarian intervention when it comes to the establishment of the elements of the crime of aggression, the article will point out the scope of this institute pertaining to the bases for the exemption from criminal responsibility according to the Rome Statute, referencing potential defence strategies in cases that could take place before the International Criminal Court.
Keywords: crime of aggression, Rome Statute, humanitarian intervention, Grotian Moment, criminal responsibility, International Criminal Court

Issue 1/2022

Detention observed through the prism of human rights

Author: Dragana Milošević
Ph.D. student Faculty of Law, University of Belgrade

ABSTRACT: The article contains an analysis of the reasons for detaining individuals and its more frequent application in light of the European Convention for The Protection of Human Rights and Fundamental Freedoms, with emphasis on Article 5. The human rights of detained individuals are analysed with a special focus on the ordering and extension of detention. The reasons why the extension of detention is requested need to be examined carefully because longer detention periods create the conditions for violations of human rights, which is why it is necessary to act on cases involving detention urgently and efficiency. The decisions of the European Court of Human Rights and the Constitutional Court which assessed the constitutionality of the provisions that define detention and the evaluation of constitutional appeals are analysed in the article.
Keywords: detention, ordering detention, the risk of repeat offending, European Convention for the Protection of Human Rights and Fundamental Freedoms, human rights, European Court of Human Rights, Constitutional Court

Issue 1/2022

Quackery as a criminal offence

Author: Dragana Milovanović
Ph.D. student Faculty of Law, University of Niš

ABSTRACT: Acquiring appropriate professional qualifications enables one to provide certain medical treatments or other medical services. As the acquisition of material gain is often the motive for committing numerous criminal offenses as prescribed by the Criminal Code of the Republic of Serbia, it is often so with the criminal offense of quackery found in Article 254 of the Criminal Code. The reason for prescribing this act and sanctioning the perpetrator is that undertaking actions that require special education in the field of medicine without having it can cause damage to the health of another person, to a higher or lower degree. However, the sanctions occur regardless of whether in the specific case there was a consequence in the form of damage to or deterioration of the health of another person, as well as in the case when the perpetrator did not obtain material gain by taking specific actions without proper professional qualifications. Despite the fact that are witness to numerous testimonies of victims through the media, who out of ignorance decided to entrust their health to persons without proper qualifications, practice shows that a small number of criminal complaints is received by competent prosecutor’s offices in Serbia and that a small number of court proceedings are conducted to prove guilt and the existence of a criminal offense.
Keywords: quackery, professional qualification, Criminal Code, criminal proceeding