CURRENT ISSUEIssue 1/2023
The principle of mortgage extensiveness with regard to buildings and separate parts of immovable property under construction
Authors:
Radenko Jotanović, Ph.D.
Bosiljka Čubrilović Stamenić
Faculty of Law, University of Banja Luka
ABSTRACT : In accordance with the principle of legal unity of immovable property, immovable property consists of parcels of land and everything permanently connected to it, whether on the surface or underground. The reform of the system of real property law in the Republic of Srpska established the legal unity of immovable property between land, building, and separate parts of immovable property, making the owners of separate parts of immovable property (co)owners of the entire immovable property (land and building). Immovable property, which is identified with land, is the object of property rights and the object of a mortgage. In accordance with the principle of extensiveness, a mortgage exists with respect to immovable property as a whole, which means that a mortgage constituted on a land also covers the building as well as the separate part of the immovable property (apartment, business space, garage, etc.). Acquisition of property rights and acquisition of a mortgage on immovable property as a whole is possible on the basis of the principle of reliance, which takes precedence over the principle of Nemo plus iuris ad alium transferre potest quam ipse habet. When it comes to buildings and separate parts of immovable property under construction, the application of the principle of mortgage extensiveness or the principle of reliance depends on the moment the property rights or a mortgage are acquired. The principle of mortgage extensiveness takes precedence if the owner of the land managed to register the mortgage before the sale of the building or separate part under construction, and vice versa, the principle of reliance takes precedence if a conscientious buyer of an apartment in a building under construction managed to register ownership before the mortgage was constituted on the land.
Keywords : immovable property, legal unity of immovable property, principle of reliance, mortgage, mortgage extensiveness, condominium, building and separate part of immovable property under construction
CURRENT ISSUEIssue 1/2023
The relationship between domestic and international law in accordance with the Constitution of Montenegro
Author:
Miloš Rajović
Faculty of Law, University of Belgrade
ABSTRACT : The relationship between domestic (state) law, or more precisely domestic laws, and international law is one of the most complex and dynamic issues, both in foro interno and in foro externo, resulting in different and numerous theoretical and practical solutions. Beginning with basic theoretical starting points (monism and dualism), through comparative constitutional practice, this paper seeks to provide a detailed analysis of the provisions of the Constitution of Montenegro from 2007 concerning the relationship between domestic and international law, especially Article 9. Opting for a monistic approach with a relative primacy of international law, the Montenegrin Constitution prescribes that international treaties and generally accepted rules of international law are an integral part of the internal order. The analysis of the Constitution in the manner of de lege lata pointed out some basic errors and shortcomings of the positive legal solution of the relationship between domestic and international law found in Article 9, and resulted in a proposed correction in the manner of de lege ferenda, with the aim of reducing the potential international legal responsibility of Montenegro.
Keywords : Internal law; International law; Monism, Constitution of Montenegro; Article 9 of the Constitution.
CURRENT ISSUEIssue 1/2023
Some legal dilemmas regarding the moratorium on employment in the public sector
Author:
Danica Radovanović
Faculty of Law, University of Belgrade
ABSTRACT : In 2013, the National Assembly of the Republic of Serbia passed amendments to the Budget System Law prescribing the measure of the moratorium on employment in public services. The implementation of this measure was directed towards controlling (i.e. cutting) expenses and reducing the number of employees in the organizations financed from the government budget. Despite the analysis of the measure under scrutiny pointing out a lack of systematic, argumented and reliable reports and objective analyses of both positive and negative consequences of this decision, it appears that its application was associated with more negative consequences than positive ones whilst the largest and most significant effects were suffered by the sectors of healthcare, social protection and education. In addition, the negative consequences of the measure had a direct impact on women and young members of the workforce. The extension of this measure, in several iterations, has manifested itself through significant obstacles in the provision of services as well as a reduction in the quality of these services. Therefore, it is worthwhile to examine the content and the consequences of the application of the measure of the moratorium on public employment, certain legal dilemmas in relation to it, as well as whether the autonomy of public services has been restored following its repeal.
Keywords : moratorium on public employment, public services, healthcare, education.
CURRENT ISSUEIssue 1/2023
Domestic violence between felony and misdemeanour law of the Republic of Srpska
Author:
Ljubana Sladić
Faculty of Law, University of East Sarajevo
ABSTRACT : Since May 2020, a new legal solution which treats domestic violence exclusively as a felony has been in force as part of the legislature of the Republic of Srpska. In this article, the author argues against the exclusive treatment of domestic violence as a felony by pointing out that it should also be treated as a misdemeanour but with a clear dividing line. This article presents the results of research conducted to establish the attitudes of judicial bodies concerning the felonization of domestic violence and also present the statistical data from the Basic Court in Bijeljina in connection with this crime. By interpreting the results of the survey, it was concluded that the participants were familiar with the new legal solution regarding the felonization of domestic violence and the consequences that such solutions produce in practice. The majority of them are of the view that the solution that treats domestic violence exclusively as a felony is not beneficial nor is it beneficial for the court to issue urgent/protective measures in misdemeanour procedures. Instead, the court should issue such measures in felony procedures. Also, the participants agree that there has been no increase in the number of prison sentences nor a more stringent penal policy with regard to the perpetrators of domestic violence, and they agree that these individuals typically receive suspended sentences, which is supported by the abovementioned statistical data.
Keywords : domestic violence, felony, misdemeanour, family member, protective measures, emergency measures
CURRENT ISSUEIssue 1/2023
Similarities and differences in the issuance of securities and digital assets – The issue of legal responsibility of the issuer
Author:
Ranko P. Sovilj
Institute of Social Sciences, Belgrade
ABSTRACT : The evolution of the financial market has given rise to new instruments of trade – digital assets. Considering the diversity and inhomogeneity of digital assets, the author analysed the legal position of digital tokens compared to that of securities, including their resembling features. Therefore, in the first part of the paper, the author analyses the issuance of digital assets. The central part of the paper is dedicated to a critical review and analysis of the issuer’s legal responsibility for a faulty or deficient prospectus, that is, a white paper, with particular reference to the network of (passively) responsible individuals. Hence, this research aims to highlight the similarities and differences accompanying the issuance of securities and digital assets (tokens). Finally, using the normative and comparative method, the author concludes that despite the many advantages of legalizing the issuance and secondary trading of digital assets, the issuance of digital tokens is accompanied by risks and certain inequalities compared to the issuance of securities.
Keywords : issuer’s responsibility, securities, issuance of securities, prospectus, digital assets, digital tokens, initial coin offering, white paper
CURRENT ISSUEIssue 1/2023
Jurisdiction of the International Criminal Court over crimes committed on the territory of Afghanistan
Author:
Jelena S. Radmanović
Faculty of Law, University of Novi Sad
ABSTRACT : The subject of this paper is the territorial and personal aspects of the jurisdiction of the International Criminal Court regarding crimes committed on the territory or in connection with the armed conflict on the territory of Afghanistan. In 2020, the International Criminal Court determined that the conditions had been met for initiating an investigation into crimes committed in Afghanistan, or in connection with the armed conflict in Afghanistan. The paper is based on the analysis of positive regulations in the field of public international law and international criminal law, as well as linking the relevant provisions with the circumstances under which crimes were committed on the territory of Afghanistan and drawing conclusions about the fulfillment of necessary conditions for initiating criminal proceedings before the International Criminal Court. The result of the analysis leads to the conclusion that the conditions have been met for initiating an investigation into crimes committed in Afghanistan or in connection with the armed conflict on the territory of Afghanistan. The initiation of an investigation is particularly important in the context of the withdrawal of US military forces and the Taliban’s takeover of power in Afghanistan. Namely, there is a real possibility that the newly formed government in Afghanistan will not be willing to cooperate with the prosecution and provide the necessary evidence related to the crimes in question, which directly affects the importance of conducting proceedings before the International Criminal Court.
Keywords : International Criminal Court, Afghanistan, jurisdiction, territorial jurisdiction, personal jurisdiction
CURRENT ISSUEIssue 1/2023
The request for the protection of legality. Theoretical and practical aspects
Author:
Jelena Stanković
Faculty of Law, University of Novi Sad
ABSTRACT : In this article, the author has examined an extraordinary legal remedy which is the last defence of legality, the request for the protection of legality in the positive criminal procedure legislation of the Republic of Serbia. The principle of legality is one of the foundational principles of the legal system, which also helps to achieve the basic purpose of criminal procedure, i.e., that no innocent person is convicted and that perpetrators are sentenced under the conditions prescribed by criminal law based on a legal and fairly conducted procedure (Article 1, paragraph 1 of the Criminal Procedure Code of the Republic of Serbia). In this manner, the request for the protection of legality, as an extraordinary legal remedy, gains in importance. The subject of the article is an analysis of the theoretical conceptions and positive law solutions in the criminal procedure legislation of the Republic of Serbia, as well as the application of the request for the protection of legality in practice, bearing in mind that the request for the protection of legality has undergone the most significant changes, some of which have raised contentious issues, and in such a situation judicial practice deserves special attention because it will play a key role.
Keywords : criminal procedure, legal remedy, extraordinary legal remedy, request for the protection of legality
CURRENT ISSUEIssue 1/2023
The National Assembly of the Republic of Serbia and the German Bundestag. A comparative legal analysis
Author:
Aleksandra Toroman
Ph.D Student at the Faculty of Law, University of Novi Sad
ABSTRACT : The Bundestag, as the legislative body of the Federal Republic of Germany, represents its most important institution. The National Assembly in the Republic of Serbia also has significant influence and plays a crucial role. As legislative bodies represent the people, and the people are the bearers of a state’s sovereignty which they do not exercise directly but through the operations and activities of the parliament, legislative bodies in certain states represent the highest authority. In this regard, the purpose of the legal research and analysis in this paper is to provide a parallel presentation of the activities of the legislative bodies and their influence in their respective states. Furthermore, each institution has its own unique characteristics that distinguish it from others. Therefore, the aim of this paper is to highlight the particularities and similarities of both legislative bodies.
Keywords : Bundestag, parliament, National Assembly, Republic of Serbia, Federal Republic of Germany, jurisdiction
CURRENT ISSUEIssue 1/2023
Advanced techniques in the analysis of traffic accidents
Author:
Ištvan Bodolo
Faculty of Economics and Engineering Management Associate Professor
ABSTRACT : Modern vehicles in road traffic are equipped with mutually integrated electronic devices used for managing systems. A chip in the airbag module identifies collisions and, at the same time, memorizes key parameters prepared for the analysis of traffic accidents. After the transfer of data, it is possible to make an undoubted temporal-spatial analysis and give answers to all those questions which the previous practice had no answers for and instead relied on the principle of in dubio pro reo. The paper describes the current cognitive methods, presents modern digital forensics devices, its history, organization of digital forensics systems, highlights the formal and factual dilemmas of this novelty, describes the technique and method of data access as well as different perspectives. A list of questions that have not been answered by previous practice is provided, as well as several examples from practice, demonstrating the advantages that digital forensics achieves in relation to the traditional way of working. Applying the results of digital forensics will undoubtedly have a substantial effect on eradicating false accusations, erroneous verdicts, and unnecessary lawsuits. It will completely change the work of traffic-technical experts by eradicating all known weaknesses, reduce the number of lawsuits, and largely shorten the existing ones, which will affect the economy of proceedings in this area.
Keywords : Traffic accidents, digital forensics, EDR, CDR
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Issue 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
Issue 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
Issue 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
Issue 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
Issue 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
Issue 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
Issue 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
Issue 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