CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 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
CURRENT ISSUEIssue 3/2022
Totalitarianism, crowd psychology and collective responsibility
Author: Dragiša Drakić, Ph.D.
Faculty of Law, University of Novi Sad
ABSTRACT: In this article, the author examines related topics: totalitarianism, crowd psychology and collective responsibility. The subject matter of the paper is specified in the introduction. Then, the phenomenon of totalitarianism is defined and the possible reasons for its universal nature and longevity are listed. The second segment of the article is devoted to an analysis of mass psychology, as an inevitable companion of totalitarianism. This analysis serves to comprehensively examine the question of responsibility, which makes up the third and central segment of the article. The issue of collective responsibility in the context of crimes committed in the name of totalitarian regimes is stressed and paid particular attention to. This issue is developed gradually and conclusions are drawn, which finalizes this research into a comprehensive whole.
Keywords: totalitarianism, crowd psychology, collective responsibility, personal responsibility
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Issue 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
Issue 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
Issue 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
Issue 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
Issue 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
Issue 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