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.
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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.
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
The state of exception at the legal boundaries. Re-evaluation of a critical concept
Alpar Losoncz, Ph.D.
Corresponding member of the Serbian Academy of Sciences and Arts University of Novi Sad, Faculty of Technical Sciences
Mark Losoncz, Ph.D.
Institute for Philosophy and Social Theory in Belgrade
This article focuses on the notion of the state of exception, accounting for its legal and political meanings. In discussing Agamben’s analysis of the state of exception, the article provides an alternative genesis of the state of exception, with a special focus on the role of liberalism, nuclear war, and the sources of the state of exception that was instituted in the U.S.A. after the terrorist attacks on September 11. The article stresses that the state of exception should not be described as an “anomic state” that suspends the law, but that the relationships are much more complex, wherein the legal and non-legal “organically” intertwine. The article ends with an analysis of the neoliberal relationship to the state of exception.
Keywords: state of exception, illegality and anomie, Agamben, liberalism, nuclear war, neoliberalism
Existing outside of the law. Kafka’s philosophy of law
Author: Dragan Prole, Ph.D.
University of Novi Sad, Faculty of Philosophy, Department of Philosophy
Variations of the idea that regardless of how bad things are in the world of man, man’s tendency to protect himself by creating illusionary presentations about it is worse, exist in many places in Kafka’s works. If the origin of the leading among the fatal illusions of the present is connected to the need for security, safe haven, protection – the same need that laid the foundation for the necessity to introduce laws and develop a legal system – then important pages of Kafka’s literature can be read in light of a type of negative anthropology. Its premises seem as if to testify to the betrayed human urge to protect every individual via courts and laws. The author pays special attention to the question of what it means to be outside of the law, stressing that the man from the country who remains before the law metaphorically represents Jewish refugees from Galicia who remained before the gates of Prague in 1914.
Keywords: Kafka, philosophy of law, security, existing outside of law
The notion of the right of necessity (Notrecht) in Hegel’s philosophy
Author: Nevena Jevtić, Ph.D.
University of Novi Sad, Department of Philosophy Faculty of Philosophy
This article deals with researching the meaning and importance of the right of necessity (Notrecht) in Hegel’s philosophy of right. The first part of the paper introduces the basic motifs of Hegel’s abstract and legal category of possession, as well as the debate with Savigny – the fundamental historical and philosophical framework of this right. The second part of the paper provides an overview of Kant and Fichte’s understanding and definitions of the right of necessity within practical philosophy. A socio-political dimension will be underlined as a topic of analysis in the third part of the paper, as a key characteristic that differentiates Hegel’s notion of the right of necessity from those of his predecessors.
Keywords: Philosophy of Right, civil society, Hegel, Notrecht, necessity, possession
Elements of the philosophy of human rights
Author: Mina R. Đikanović, Ph.D.
University of Novi Sad Faculty of Philosophy, Department of Philosophy
The paper investigates the possibility of establishing the philosophy of human rights as a distinct philosophical science. Contemporary thematizations of problems related to human rights are called philosophies, but they are not philosophical in their essence. Following Hegel’s understanding of the modern ethical order and Aristotle’s teaching on the four causes, an attempt is made to give a framework for exploring the possibility of establishing the philosophy of human rights as a particular philosophical science. The framework includes considerations of the definition of the subject matter and methods, as well as an attempt to practically apply Aristotle’s teaching on the four causes to the notion of human rights.
Keywords: philosophy of human rights, human rights, law, morality, science, Aristotel, Hegel, four causes
The phenomenology of guilt. Some remarks on Jaspers’ and Hegel’s notion of guilt
Author: Tanja D. Todorović
Bar Association of Vojvodina
Jaspers inquires into the problem of guilt in closer relation with the idea of communication, which finds its metaphysical foundation in the unspecified idea of humanity. His distinction between the four types of guilt can find its foundation in metaphysical guilt. In his philosophical conception, Jaspers manages to adopt certain insights of Kant’s ethics; in this context we shall emphasize the connection between moral and metaphysical guilt. In the framework of Hegel’s critique of Kant we shall explicate how the four types of guilt that Jaspers distinguishes (moral, metaphysical, criminal, and political) can be reduced to moral and legal guilt.
Keywords: guilt, communication, metaphysics, morality, law
A critique of the jusnaturalist notion of marriage. A view from Italian legal practice
Author: Aleksandra Prelevic Palladino
Ph.D. student at the Faculty of Law University of Belgrade
This paper attempts to answer the following research question: What is modern marriage? The author combines the critical analysis of the jusnaturalist view, more precisely the notion of marriage in the work of Robert George, with a conceptual analysis of marriage in the process of its transformation. In order to do this, the author examines the case of Italy, a society with a traditional, Catholic jusnaturalist conception of marriage, which enables testing the jusnaturalist view of marriage and pointing out what makes it dysfunctional in practice. Then, I examine how wellfounded the constituent components of the notion of “real marriage” are, both in the context of modern marriage and within George’s conception of marriage itself. The paper’s central argument is that marriage is a legal institution undergoing the process of redefining that involves an expansion of participants and a redistribution of the hitherto known functions of marriage. It is the author’s standpoint that there is a methodological possibility to functionally yet neutrally explain the nature of law, and so the institution of marriage. Thus the author arrives at the new function of modern marriage and brings a value-neutral definition of modern marriage based on the idea of a privileged emotional relationship.
Keywords: modern marriage, new function of marriage, privileged emotional relationship, jusnaturalism, the concept of marriage, the concept of marriage in Italy, real marriage, family and marriage, marriage as a value in itself, functional methodology, value neutrality
The formulation of the idea of justice in the “Poem on Justice”
Author: Željko Kaluđerović, Ph.D.
Faculty of Philosophy, Novi Sad