Suchergebnisse

Rad istražuje ulogu i doprinos razvojne pomoći u procesu programiranja i implementacije pravosudne reforme u Srbiji od 2002. do 2012. godine. Pojam razvojne pomoći u ovom radu obuhvata donacije i projektnu pomoć međunarodnih partnera u širem smislu, što obuhvata kako međunarodne organizacije tako i razvojne agencije i/ili programe stranih država. Pod pravosudnom reformom rad primarno podrazumeva postizanje nezavisnosti pravosuđa u čijoj je osnovi stručnost nosilaca pravosudne funkcije. Stoga, posebno mesto u istaživanju zauzima jedinstveni slučaj transformacije Pravosudne akademije od projekta do državne institucije u funkciji osnaživanja kriterijuma stručnosti. Osnovna hipoteza rada je da je uspešnost reforme pravosuđa uslovljena primenom kriterijuma stručnosti u izboru, vrednovanju i napredovanju nosilaca pravosudne funkcije. Sprovedeno istraživanje potvrđuje hipotezu i donosi zaključak da nije postignut značajan uspeh u reformi pravosuđa u Srbiji. Utvrdili smo da su stagnaciji reforme doprineli, u jednakoj meri, s jedne strane, međunarodni partneri nekoherentnim pristupom programiranju reforme, a s druge, nacionalni partneri u Srbiji nedostatkom stvarne potražnje za reformom. Sadejstvom ovih razvojnih partnera u primeni tehnika izomorfne mimikrije i preuranjenog opterećenja došlo se do mešovitog rezultata - kapaciteti pravosuđa u Srbiji su u izvesnoj meri uvećani ali nezavisnost suda nije. Rad na osnovu ovih nalaza daje preporuke za unapređenje programiranja i realizaciju reforme pravosuđa kao što su koherentni strateški mehanizmi, koordinacija razvojnih partnera i depolitizacija reformskog procesa. ; The study explores the role and contribution of development assistance within the process of programming and implementation of judicial reform in Serbia from 2002 to 2012. The notion of development assistance, according to the study, includes donations and project assistance from international partners in a wider sense such as from international organizations, development agencies and/or bilateral assistance. The study defines judicial reform as the independence of the judiciary, which is based on the competency of judges and prosecutors. Thus, special attention is given to the unique case of the transformation of the Judicial Academy from a project to a state institution with the mandate to enhance the competency criteria and the merit based system for judges and prosecutors. The basic hypothesis of the study is that the success of judicial reform is conditioned by the application of competency criteria in the appointment, evaluation and career advancement of judges and prosecutors. The research confirms the hypothesis and leads to the conclusion that the judicial reform in Serbia did not achieve significant successes. It concludes that both the international and national partners contributed equally to the stagnation of the judicial reform process. While international partners applied incoherent approaches, through their reform programming, the national partners exercised a lack of genuine reform demand and commitment. The joint actions of these development partners in the implementation of techniques of isomorphic mimicry and the premature load bearing led to mixed results – the capacity of the judiciary in Serbia has been increased to a certain extent, but the independence of the judiciary has not been reached. The study, based on these conclusions provides recommendations for the improvement of programming and implementation of judicial reform such as through a coherent strategic programming mechanism, coordination of development partners and depolarization of the reform process.

The Mediation Act has been applied in the Republic of Serbia since 2005. In the past period, the application of this Act has pointed out to a number of drawbacks and deficiencies in the system of resolving disputes through mediation. The dominant features of the current mediation system are some inadequate legal solutions, poor organization and insufficient preparation of the courts to internalize mediation, failure to provide relevant information about mediation to litigants and other participants in the judicial process, insufficient judicial training and education of lawyers and parties on mediation and other ADR methods, etc. Considering that the primary purpose of mediation is to diminish the litigation caseload and reduce the costs of court proceedings, the basic goal of introducing mediation into the Serbian legal system has not been accomplished. In order to improve the mediation system, the Serbian authorities launched a public debate in 2010 on designing a new legislative act which would eliminate the shortcomings of previous act and improve the efficiency of mediation. After nearly four years, the extensive debate and confrontation of different mediation concepts led to adopting a new Draft Mediation Act in 2013. As compared to the applicable 2005 Mediation Act, the Draft Mediation Act contains some innovations, such as the enforceability of a mediation agreement under specific conditions and the opportunity of introducing mandatory mediation in some cases. In this paper, the author analyzes the above issues on the basis of findings of economic theory and the results of the empirical study on the efficiency of mediation in Serbia in civil matters. In this context, the author argues that the achievement of the above objectives (to reduce the caseload and legal costs] calls for establishing a sustainable mediation system. In addition to instituting good legal solutions (such as mandatory mediation], the system should be supported by joint efforts and financial resources of responsible institutions and individuals. In a nutshell, mediation may come to life only if the legislative efforts are accompanied by a large-scale social action aimed at promoting this form of dispute resolution.

After the Lisbon Treaty has entered into force, the process of concluding treaties between the EU and third countries or international organizations has sustained significant changes. The most important procedural novelty is the establishment of the ordinary procedure that covers almost all agreements the EU concludes with third parties. Under the Lisbon Treaty, this procedure involves a number of stages: negotiations, signing the agreement, and decision to conclude the agreement. For agreements whose subject matter exclusively or predominantly falls into the domain of common foreign and security policy, there are several derogations from the uniform rules of the ordinary procedure. The same provision of the founding treaty regulates the procedures for amending and suspending the agreement in force, as well as the judicial control procedure of those agreements that are yet to be concluded. The ordinary procedure does not cover two subject-specific proceedings pertaining to relatively narrow areas of EU action. More specifically, they refer to the conclusion of agreements in the area of common trade policy and agreements on the exchange rate of the Euro against the currencies of non-member states. The exclusion of trade agreements is probably the result of the differences that still exist in the division of competencies between the Member States and the EU regarding trade in the area of some services. On the other hand, the enactment of a special procedure for agreements on the Euro exchange rate in relation to the national currency rates of third countries stems from the need to ensure the Union's unique position in this field. On the institutional level, the most important actors in the process of concluding EU agreements are the Council, the Commission and the European Parliament. The Council has retained the central role in all types of treaty procedures, and it decides on essential issues related to the course and outcome of the process. The Commission has retained the major role in initiating and negotiating the agreements, but it is no longer the exclusive initiator and negotiator in the agreement process. Namely, depending on the subject of the treaty, new entrants in that role are the High Representative for Foreign Affairs and Security Policy, and the European Central Bank. The European Parliament has strengthened its position in the procedure for concluding EU agreements and can, therefore, be considered the largest 'net' winner of the Lisbon Treaty reform. This is partly due to its new role in the course of negotiations, which implies the right to be immediately and fully informed about all stages of the proceedings, but to a much greater extent it refers to the powers that this body has in the final stage preceding the conclusion of the agreement. Finally, the EU Court of Justice has an important role in this process; its task is to control the compliance of the EU agreements with the founding treaties prior to their conclusion.

This work is aimed at analysing the factors imposing limitations on the legislative function of parliament in the modern constitutional state. The legislative function has clearly been loosing its initial quality of the original and exclusive parliamentary function, because there is a number of legal and political limitations: the judicial review by the constitutional court; the role of the government in the legislative process; the internal organization of parliament, as well as the position of a member of parliament in the parliamentary groups. The constitutional court, through its interactive relation with parliament, has specific task to have a retroactive influence on the lawmakers. The strong domination of the government over the legislative activity expressed through the legislative initiative, an influence on the order of priorities in decision-making processes, to participate in discussions without any limitations and to eventually influence the outcome of the decision-making process using the motion of censure as a means of exerting pressure on the members of parliament, especially those belonging to the parliamentary majority. Taking into account the range and the strength of the impact that the parliamentary committees have, parliaments could be divided into 'the working assemblies' and 'the talking assemblies'. Finally, the nature of the parliamentary mandate (an MP's term of office) is no longer related to certain traditional values of the representative democracy. The significance and the character of the term of office are adjusted to the political framework of parliament in a contemporary constitutional state. It is the question of the relation between the people represented and the ones who represent them. .