The Bar association of Vojvodina

CURRENT ISSUEIssue 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

CURRENT ISSUEIssue 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

CURRENT ISSUEIssue 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

CURRENT ISSUEIssue 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

CURRENT ISSUEIssue 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

CURRENT ISSUEIssue 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

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Issue 4/2021

The relationship between lis pendens and exclusive international jurisdiction based on a choice of court agreement in the law of the Hague Conference and Bosnia and Herzegovina

Author: Adis Poljić Ph.D.
Basic Court in Zvornik, Bosnia and Herzegovina

ABSTRACT: The subject of the paper refers to the analysis of the exercise of the will of the contracting parties regarding the jurisdiction of the court in the law of the Hague Conference and Bosnia and Herzegovina. The exercise of the will of the contracting parties may be limited by the institute of lis pendens, which makes it impossible to conduct two proceedings between the same parties simultaneously for the same claim based on the same facts, giving priority to the first one, regardless of agreed-upon international jurisdiction. By agreeing on the jurisdiction, the contracting parties decide which court will resolve their dispute, which is extremely important for them. Based on the analysis of the Hague Convention on Choice of Court Agreements, it is concluded that preference is given to proceedings before the chosen court, with certain exceptions when the agreement of the parties will not apply. The law of Bosnia and Herzegovina applies the rules of lis pendens which may prevent the application of the agreement of the parties.
Keywords: lis pendens, jurisdiction, agreement, contracted jurisdiction, stay of proceedings

Issue 4/2021

The rule of law in international law and its application in practice

Author: Stefan Dugajlić
Ph.D. Student, Faculty of Law, University of Novi Sad

ABSTRACT: The subject of this article is to point out that the rule of law, often characterized as a national concept, crosses the national borders of sovereign states, and that the field of the rule of law has a direct impact on international law, relations between states, individuals and states, and between individuals. The increasing and more frequent interaction of the above subjects in international relations has led to the need to constitute certain rules – regulations, more precisely international law, and to ensure its enforcement, and to protect the subjects from possible violations of it. The rule of law becomes even more represented at the international level, with the establishment and later with the activities of international organizations such as: the United Nations, Council of Europe, European Union. By acceding to those organisations, by actively participating in instituting regulations and applying them, directly or through ratification, states renounce the acts of their sovereignty in a certain manner, accepting and enforcing those regulations, thus giving them a higher place in the hierarchy of regulations than national law. This article describes the path of the rule of law from the Grand Charter of Freedoms (Magna Carta Libertatum), as a national concept, to the present, where the rule of law has a strong and indispensable influence in creation, enforcement and protection of international regulations.
Keywords: rule of law, international law, national law, hierarchy of regulations

Issue 4/2021

On the shortcomings of the plea agreement

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

ABSTRACT: The plea agreement is an institute of criminal procedure law that was introduced into the Criminal Procedure Code in 2011 as one of three agreements that can be concluded by the public prosecutor and the defendant. The author points out the shortcomings of the agreement in terms of the absence of a prescribed penalty as a condition for concluding an agreement, determining the sentence without presenting evidence, with an emphasis on extenuating and aggravating circumstances, and provides suggestions on how to prevent or eliminate problems that could occur in praxis by applying valid legal solutions. In order to obtain answers to some of the above questions, a research questionnaire was created on the basis of which the author collected data from a court and public prosecutor’s office in order to prove the presented hypotheses. From the methodological aspect, in addition to documentary analysis, the comparative and historical method, prediction strategy and the medium-scale method were used for the purpose of the research.
Keywords: plea agreement, criminal proceedings, severity of the criminal offense, determining the sentence

Issue 4/2021

Legal inheritance mechanisms for the protection a decedent’s family members in Czech law

Author: Ivana Đokić
Ph.D. Student Faculty of Law, University of Niš

ABSTRACT: The subject of the author’s attention in this paper are certain regulations regarding legal inheritance in Czech law. We will try to give insight into inheritance mechanisms that are meant to protect the family members of a decedent, both through the prism of those regulations and that of Czech legal literature and the position of the highest court of the Czech Republic. We will pay special attention to the hereditary position of those subjects to which the decedent provided subsistence during his life and those persons who lived in a joint household with the decedent.
Keywords: inheritance, subsistence, life partnership, special rights, inheritance

Issue 4/2021

Nullity as a prerequisite of contract conversion

Author: Dražen Mijanović
Ph.D. Student, Faculty of Law, University of Novi Sad

ABSTRACT: Although it has been legally recognized since 1978, the conversion (lat. Conversio – conversion) of contracts is one of the institutes to which no deserved attention has been paid in domestic theory. In textbooks that cover the general part of civil law, and those used for teaching the law of obligations, this institute is, with certain exceptions, presented rather briefly – usually, beside the legal definition, we find only the field of application and examples of conversion. We were unable to find monographs on the subject of conversion. On the other hand, in foreign literature, mostly German and Italian, we find a large number of monographs on the topic of conversion. The suject of this paper is one part of the norm that prescribes the conversion of a contract, and that is the nullity of a contract, which is provided as a precondition for the application of the institute. The scope of application of conversion seems to be precisely and clearly defined, especially having in mind the text and the place of the norm within the Law Contracts and Torts, and in this paper we will see if that is actually the case. In the search for the answer, we also used the comparative legal method. The area of application of conversion was considered – and we did not limit ourselves only to null and void contracts, but we considered
the possibility of its application to non-existent, null and void, voidable contracts, then to partially null and void contracts, but also to valid contracts. Within null and void contracts, special attention is paid to those illegal and immoral, and within non-existent ones – to a simulated contract.
Keywords: conversion, nullity, voidability, relative simulation, requalification

Issue 4/2021

The Freedom of expression of lawyers through the practice of the European Court of Human Rights

Author: Dimitrije Đukić
Bar Association of Vojvodina

ABSTRACT: Freedom of expression represents an important aspect of liberty that has had a profound influence on the development of human society. Also, the protection of this freedom been explicitly stated in numerous national and international legal acts. This paper presents an analysis of the way in which the right to freedom of expression of a particular group of persons (i.e. lawyers) is protected through the practice of the European Court of Human Rights. The author’s view is that lawyers have to enjoy a higher degree of protection of the right to freedom of expression than other persons because of the importance of their role in society. Consequently, the limitations of this freedom should be restricted. Furthermore, the manner in which freedom of expression is protected by the European Convention on Human Rights and the practice of the European Court of Human Rights is analysed. Finally, a special emphasis is placed on the possibility of limiting this freedom through an analysis of the European Court of Human Rights’ verdicts on this matter.
Keywords: European Court of Human Rights, European Convention of Human Rights, communication, freedom of expression (Article 10), lawyer, court