CURRENT ISSUEIssue 4/2022
Criminal law instruments of the adequacy of environmental protection. The norm and praxis of Republika Srpska
Author:
Milimir Govedarica, Ph.D.
University of Banja Luka
ABSTRACT: The questions that constitute the subject matter of this article are analyzed through three groups of questions and concluding remarks in which the basic findings reached in the professional-critical analysis of these questions are presented in the form of a summary. The first group of questions deals with general remarks about the environment and its adequate protection, specifically from two aspects (international law aspects and normative-practical aspects in Republika Srpska). The basic conclusion of the analysis of this group of questions is the necessity of ensuring (normative and practical) preconditions for the most adequate protection of the environment possible, and the instruments of criminal law (criminal legislature and its application) are among the crucial ones. The second group of questions is dedicated to the assumptions about the desired degree of adequacy of environmental protection (their notion and types). The basic conclusion of the analysis of this group of questions is that there are numerous assumptions about the desired degree of ensuring the adequacy of state reaction to ecological and other types of crime, whereby those that have the characteristics of criminal law deserve a special status. Bearing in mind precisely this significance of the norms of criminal law as instruments of environmental protection, the third group of questions is dedicated to the analysis (normative and practical) of the preconditions which determine the degree of adequacy of the instruments of criminal law for the protection of the environment. Viewed in isolation, these are the norm of criminal law; the adequacy of the application of the norms of criminal law; the efficiency of the procedure for discovering and demonstrating that ecological crimes were committed (the efficiency of the criminal procedure); efficient forfeiture of assets obtained through criminal activities belonging to this group of crimes. The basic conclusion of the analysis of this class of questions is that despite their diversity, these assumptions must be viewed through their shared properties. Only in cases when they are met simultaneously, both from the normative and from the practical aspect, is it possible to say that they are a function of the desired degree of adequacy of environmental protection, which is not yet the case with Republika Srpska, especially when it comes to their practical aspects.
Keywords: the environment, criminal law, the criminal law norm, crime, certainty of punishment, court, state prosecution, the police, the defendant, the efficiency of the criminal procedure, prevention
CURRENT ISSUEIssue 4/2022
Criminal law instruments of environmental protection. Norms and Practice of Montenegro
Author:
Jelena Đurišić, Ph.D.
University of Donja Gorica, Podgorica
ABSTRACT: Montenegro is constitutionally declared as an ecological country, and it is committed to sustainable development with the preservation of a healthy environment, biodiversity, preservation and improvement of the quality of water, sea, air, soil, space, and other natural resources for generations to come. Today, the field related to the environment and its protection is regulated by a series of sector-specific laws. However, in accordance with the principle that criminal law is the ultima ratio for the protection of certain social values, and with its fragmentary character, protecting the environment through criminal law represents the last line of defense. In this sense, this paper pays special attention to the protection of the environment through criminal law in accordance with the legal solutions in the criminal legislation of Montenegro. Criminal acts that belong to the chapter on criminal offenses against the environment and spatial planning provide protection to the environment, that is, the right to a healthy environment. In this sense, through the provisions of the general and special parts of the Criminal Code of Montenegro, a critical analysis of certain criminal offenses that belong to the chapter on criminal offenses against the environment and spatial planning was conducted. In the paper, other important issues regarding the protection and preservation of the environment were addressed and critically analyzed, as well as the importance of the criminal law instruments of protection in this regard. At the very end, it is noted that although Montenegro harmonized its national criminal legislation in this field to the greatest extent in 2010 with European and international standards and practice, certain problems in the field of practical application still exist, while the expected results are absent.
Keywords: environment, protection through criminal law, ultima ratio, criminal offense, prevention, Montenegro, court
CURRENT ISSUEIssue 4/2022
Transboundary issues and cooperation in the domain of environmental protection in the legislations of Croatia, Serbia, Montenegro and Bosnia and Herzegovina
Authors:
Dragoljub Todić, Ph.D.
Institute of International Politics and Economics
Jelena Todić
Bar Association of Belgrade
ABSTRACT: The article discusses the normative framework of cooperation in the domain of environmental protection among four countries in the region of Southeastern Europe. One of the countries is an EU member (Croatia), two others have the status of a candidate country (Serbia, Montenegro), and the fourth one is in the process of receiving the status of a candidate country (Bosnia and Herzegovina). The introduction highlights the importance of transboundary issues in the domain of environmental protection and lays out the methodological remarks. The first part of the article is dedicated to the most significant international agreements of global, (sub)regional, and bilateral character on the basis of which these four countries have an obligation (and the right) to cooperate. In the second part of the article, we provide an overview of the most significant norms of domestic law in the domain of environmental protection (basic laws), which are related to transboundary issues and the obligation of cooperation among countries. The goal of the article is to establish the existence of the obligations of countries to cooperate in the domain of environmental protection. We consider the thesis that the obligation of cooperation among countries in solving transboundary issues is clearly recognized in the relevant international agreements and the character of that obligation should be interpreted in the context of specific rights and obligations of signatory states for each international agreement in its own right. The obligations (and rights) of cooperation are also prescribed in the domestic legislatures of all four countries and the differences could be interpreted on the basis of specific circumstances within each of them.
Keywords: environment, transboundary issues, the principle of cooperation, international agreements, domestic regulations, Serbia, Croatia, Montenegro, Bosnia and Herzegovina, EU
CURRENT ISSUEIssue 4/2022
Protection of the environment against noise through misdemeanor law
Author:
Mirjana Martić, Ph.D.
Union University
ABSTRACT: Misdemeanors are often said to represent the gateway to criminal liability. From that point of view, the purpose of punishing someone for a misdemeanor becomes especially important in fields such as environmental protection, bearing in mind the irreversible, sometimes incalculable damage that can occur as a consequence of a criminal offense. By imposing liability for misdemeanors, further illegal activity and possibly more serious damage can be prevented. Environmental protection is regulated through a large number of laws and bylaws, with special emphasis on the implementation of the Law on Environmental Protection as a systemic law in this field. On the other hand, the analysis of the application of sectorspecific laws, which regulate specific approaches to environmental protection in more detail, deserves attention precisely because of its specificity and a particular focus on certain forms of violations. Therefore, the focus of this paper is sector-specific protection of the environment against noise and research on how to apply regulations in practice.
Keywords: noise, violation, environment, public order and peace
CURRENT ISSUEIssue 4/2022
Citizens’ awareness of the importance of environmental protection and prevention of environmental crime
Author:
Zoran Pavlović, Ph.D.
Union University
ABSTRACT: Ensuring the right to live in a healthy environment is not solely the explicit responsibility of the state and public authorities. It is also the individual responsibility of citizens who are holders of this right. Raising awareness about all aspects of environmental protection is the responsibility of each individual It is not just the responsibility of professionals and institutions to provide this right to current and future generations in equal measure. Legislation on environmental protection is harmonized to the greatest extent with international standards and represents a comprehensive system of protection that is constantly being improved upon, especially through instruments of criminal law and special and general prevention of environmental crimes.
Keywords: the right to live in a healthy environment, citizens’ awareness, prevention of environmental crime
CURRENT ISSUEIssue 4/2022
The spatial characteristics of crime against the environment committed in Hungary
Author:
Mátyás Szabolcs, Ph.D.
National University of Public Service in Budapest
ABSTRACT: This study examines the spatial characteristics of crimes that have been committed against nature and the environment. In Hungary, research in the domain of the geography of crime is truly rare, and the number of researchers who have dared to tackle the spatial properties of crimes against nature and the environment is even lower. The author’s hypothesis is that correlation between certain crimes and socio-demographic characteristics can be established, so the spatial distribution of these crimes differs significantly. The temporal interval of the study includes the period between 2017 and 2021, and the data that was used comes from publicly available databases.
Keywords: the preservation of nature, environmental protection, crime, the geography of crime, spatiality
CURRENT ISSUEIssue 4/2022
The organizational system of nature protection law enforcement. The Role of the Nature Protection Service in Nature Conservation in Hungary
Authors:
Miklos Tihanji, Ph.D.
National University of Public Service in Budapest
Sandor Kovacs, Ph.D.
National University of Public Service in Budapest
ABSTRACT: There are several groups of questions that make up the subject of this critical and expert analysis of the problems of the organizational system of law enforcement regarding nature protection – the role of the nature protection service in nature protection in Hungary. Special attention is paid to the reasons for the need for environmental protection and the presentation of key laws and bylaws that regulate the protection of the natural environment in Hungary. In addition, there are questions about the role of the nature protection service as a special organizational law enforcement unit in Hungary, primarily: Organizational systems of the nature protection service and its functions and duties; Means for their functioning; Requirements that must be met by members of the service; The principles of its functioning – first of all, the principles of necessity and proportionality; Measures that the nature protection guard can take – their numerous powers for achieving the desired level of environmental protection, etc. The key result of the analysis of the issue in question is that, although nature protection transcends national borders, this in no way means that states do not have a clear duty to protect exceptional natural goods on their territory. On the contrary, this protection is a societal obligation. The state’s obligation of institutional protection manifests in the creation of a legal order and an institutional framework that can provide adequate protection. One of the ways to achieve the desired degree of nature protection, when it comes to Hungary, is introducing special services within the police force that are in charge of law enforcement with a specific system of tasks – rights and obligations.
Keywords: nature, police, protection, coercive measures, principles of functioning, protection service, Hungary
CURRENT ISSUEIssue 4/2022
Criminal offenses against the environment. Criminal legislation of Serbia and International Legal Standards – in Compliance or not?
Author:
Miroslav Alimpić
Judge at the Appelate court in Novi Sad President of the Higher Court in Novi Sad
ABSTRACT: The issue of criminal offenses against the environment from the aspect of the criminal legislation of the Republic of Serbia and international legal standards – in this paper, their mutual compliance is expertly and critically analyzed through seven groups of questions, introductory considerations, and concluding remarks given at the end of the text. There are four groups of issues that the paper focuses on in terms of topicality and scope of research. These are issues concerning: Ecology and environmental protection in general (its importance, universality, and reasons for the necessity of protection; International legal standards of environmental protection; The legal framework for environmental protection in the Republic of Serbia – its constitutional and criminal law aspect; The analysis of the application of criminal law provisions on environmental protection in the practice of detecting and proving these criminal offenses within the territorial jurisdiction of the Appellate Court in Novi Sad. The professional and critical analysis of the issue in question has yielded three key results. Firstly, the Constitution of the Republic of Serbia recognizes the right to a healthy environment as one of the basic human rights and provides a good legal framework for the detailed regulation of this important issue. Secondly, the criminal legislation of the Republic of Serbia is largely aligned with international legal standards related to environmental crimes and provides an excellent basis for improved environmental protection. Thirdly, as with many other legally regulated spheres of life, the application of regulations in practice lags behind legal regulation. Finally, a multidisciplinary approach is necessary in resolving criminal cases of environmental crime, and specialized teams composed of judges, prosecutors, and police officers should be formed at higher courts and trained to handle such cases more adequately.
Keywords: ecology, environment, Constitution, criminal legislation, criminal acts, multidisciplinary approach, international legal standards, specialized teams, Serbia
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Issue 3/2022
The environment and criminal law instruments of protection. The norm and praxis of the Republic of Croatia
Author: Igor Vuletić Ph.D.
Faculty of Law in Osijek Josip Juraj Strossmayer University
ABSTRACT: The paper provides a concise presentation of the main features of Croatian substantive criminal law as an instrument of social protection. The author describes the most important determinants of the general and special part of the Croatian Criminal Code, analyses the most important case law examples, points out selected theoretical controversies and positions of primarily Croatian but occasionally foreign theorists, and on such a basis expresses his opinions on the observed problems. On this foundation, the author draws a conclusion about how and to what extent Croatian criminal substantive law fulfils its social role in the context of existing social circumstances and needs.
Keywords: sanction, penalty, guilt, criminal act, purpose of punishment, general prevention, retribution
Issue 3/2022
Protection of flora and fauna in international and Hungarian law
Authors:
Vince Vári, Ph.D.
Csaba Zsigmond, Ph.D.
Faculty of Law Enforcement
ABSTRACT: The subjects of this analysis are normative acts and their practical applications in the protection of wild flora and fauna, that is, international and Hungarian regulations on the protection of nature. Naturally, the laws on protecting the environment are much wider in scope than the subject matter of this article, as they include the protection of the elements that constitute the environment as well as sanctions regarding behaviours related to waste disposal. In describing the regulations that protect the environment, we have primarily focused on analysing the criminal law situation. Then, we present the regulatory solutions of the European Union and international law in detail, with an accompanying analysis of the most important international organizations. The final part of this paper is dedicated to a description of the domestic organizations charged with processing criminal offences against the environment.
Keywords: natural environment, CITES Convention, preservation of nature, plant and animal species, Hungary, European Union, criminal responsibility, legal entities
Issue 3/2022
Should negatory action against immissions be reformed in the light of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Right to live in a Healthy Environment?
Authors:
Gabrijela Mihelčić, Ph.D.
Maša Marochini Zrinski, Ph.D.
Faculty of Law, University of Rijeka
ABSTRACT: In this paper, the authors rely on the results of scientific research based on which they concluded that although there are notable differences between the Croatian national regulation of immission protection and the one provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and taking into account the role of the Convention (the principle of subsidiarity), it is not inconceivable that protecting this right (which all states are obligated to protect) strengthens the position of the authorized national representative for negatory protection (e.g., the possibility of determining the basis relevant for negatory action in a less complex way; removing discrepancies, such as, for example, the requirement that proprietary legal protection of ownership and other proprietary rights against immissions is preceded by protections pursuant to special regulations, etc.). In this light, the authors analyse recent Convention case-law and compare the regulation of negatory action (protection of property from harassment) with the protection of a specific right established by the Convention – the right to live in a healthy environment based on Article 8 of the Convention– the right to respect for private and family life, home and correspondence. Exhaustively analysing the right to live in a healthy environment, they explain the interpretative methods and principles used by the European Court in detail, continuing their research concerning this issue. The main focus is on exploring the features of previously postulated rights: the requirement that the human rights protected by the Convention are violated by adverse environmental factors (that is, the existence of a specific Convention causal link); the category of a minimum level of severity; oscillation of this “quantum” of the minimum level of severity within Convention “fluctuations” and the scope (and type) of protection of the right to live in a healthy environment through the paradigm of the positive/negative obligations of the contracting states; naturally, bearing in mind the more recent cases brought before the Court. In conclusion, the authors answer the question postulated in the title of the paper.
Keywords: the right to live in a healthy environment, negatory action, immissions, European Court of Human Rights
Issue 3/2022
Green criminology
Author: Mate Sivadó, Ph.D.
Faculty of Law, University of Budapest
ABSTRACT: As a science, criminology initially studied actions which violated the rules imposed by the criminal code, the perpetrators, and the victims of such acts. During its development, the subject of criminology was later expanded to include illegal acts not prescribed by the criminal code and the “perpetrators” of such acts, who, for whatever reason, cannot be held criminally responsible. In the 1980s, under the influence of environmental associations, the question of whether environmental protection could be an area of interest for criminology arose. Initial research into this subject encountered a problem related to the fact that environmental endangerment is most often caused by the actions of states and large companies, which are usually not sanctioned in any way. This worsens the quality of life and, in the worst-case scenario, makes a country unfit for life. As a result of contemplating this topic, green criminology was born, whose most important views I would like to present to you in this paper.
Keywords: green criminology, environmental endangerment, globalization, environmental protection
Issue 3/2022
Responsible water management. International and national legal and strategic frameworks
Author:
Mirjana Dokmanović, Ph.D.
Institute of Social Sciences, Belgrade
ABSTRACT: The subject of this paper is the international legal and political framework of the right to water and relevant regulations in the Republic of Serbia, and the focus is on the state’s responsibility for water management in accordance with the realization of the common good. The starting point of the paper is the position that access to water is a human right and that water can be managed only by the state and exclusively in the general interest. The first part of the paper discusses the risks of marketization, privatization and commodification of water for the realization of the right to water and the protection of this vital natural and strategic resource. The second part summarizes the activities of the United Nations related to the recognition of the right to water as a basic human right and the obligations of states in this sense. The third part analyses the normative and strategic framework of the Republic of Serbia in this area from the perspective of the right to water and responsible state management. Deficiencies in terms of the compliance with international human rights standards and the risks that the current regulation can produce for the population, water resources and the state are pointed out. No effective instruments have been envisaged for the protection of water from pollution, nor against commodification and marketization, while the privatization of water and public companies in this area threatens the sovereignty of the state over its natural resources. The goal of the paper is to point out the importance of establishing national regulations that will ensure sovereign and responsible management of water resources and protection of the right to water.
Keywords: human right to water, marketization of water, commodification of water, privatization of public companies, ecocide, water trading, water futures, public-private partnership, concessions
Issue 3/2022
The prevention of natural catastrophes and the protection of natural resources
Authors:
Miodrag N. Simović, Ph.D.
Faculty of Law in Bihać
Marina M. Simović, Ph.D.
Faculty of Legal Sciences, Apeiron University of Banja Luka
ABSTRACT: Victimological measures for the prevention of crimes provide the foundation for an all-encompassing and hopefully long-lasting approach to solving the risk of the public being victimized and assist the individuals “designated” to be victims of a crime. This article deals with the question of “ecological victimization” (the damages that an individual has endured as a result of ecologically harmful activities) and predicts the role that victimologists will have to play in preventing the consequences of climate change and other ecological degradations in the future.
Keywords: victimization prevention, green victimology, natural resources, ecology
Issue 3/2022
Totalitarianism, crowd psychology and collective responsibility
Author: Dragiša Drakić, Ph.D.
Faculty of Law, University of Novi Sad