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.

Using the most recent archive sources, the author describes the organization of the judiciary and the courts in Zadar and Dalmatia after the Italian occupation in 1918. In violation of the Ceasefire agreement, the Italian occupational authorities reorganized the judiciary institutions, defined the new territorial jurisdiction of courts in order to establish judiciary control over both the occupied and the unoccupied parts of Dalmatia. The purpose of this new organization of the courts and the constant propaganda was to prove that Zadar and Dalmatia belonged to Italy - culturally, civilisationally, and politically. (SOI : S. 222)

The author is of the opinion that experts in international law are not broad-minded regarding the establishment of a state. Most legal experts take for granted the statements of the international judiciary on the existance of certain rules of general international law and consider them validated and indisputable. This faction has been given support by states since they uphold those legal statements that suit their interests. The author analyses the Opinions of the Arbitration Committee on the process of the disintegration and the criteria for the dissolution of the former Yugoslavia as well as the criteria for the creation of the new states. He considers this precedent as central for international judiciary law. (SOI : PM: S. 187)

A decade ago, Serbia has carried out the reform of judicial control of public administration - by establishing the new Administrative Court. The expected results, however, have not been achieved and the problems that caused the reform have not been resolved. Therefore, a decade later, a new reform is in sight. The planned changes include establishing more administrative courts and introducing a two-instance administrative dispute. The aim of this paper is to discuss these changes, but in a slightly different way. Instead of their uncritical acceptance and justification by European legal standards, they are analysed having in mind the legal nature of the administrative dispute. Successful administrative dispute reform cannot be achieved if European legal standards are blindly accepted and copied literally from classical court proceedings. Only the legal nature of the administrative dispute and the features that make it special and different from the usual court disputes can lead us to a successful implementation of the changes.

The author analyses the role of the constitutional judiciary and the traditional theory of the tripartite division of power. His radical conclusion is: the division of power in Montesquieu's sense, as a tool of control and balance in modern state, does not exist. There is no social violence to which such balance, control or correction could be applied to. In such circumstances, the role, selection and work of constitutional judges is of utmost significance for the control, correction and balancing of political process. (SOI : PM: S. 87)

Mixed government, which is commonly regarded as a distinctly medieval form of government, is relevant also to contemporary constitutional states. It is the best form of government, since the aristocratic element is a continuous source of virtue, especially of justice, and a check not only on the executive, as the monarchical element which is the seat of political power, and the legislature, as the democratic element which expresses the will of the majority, but also groups and institutions that have the might and will to impose themselves as oligarchies. Mixed government is also the form of government that is practised by most developed contemporary constitutional states: USA, UK, France, Switzerland, Germany etc. European nobility is the original aristocratic institution, by virtue of the fact that it was a system for the transfer of both virtue and general conditions of life. Three institutions that emerged in the late Middle Ages assumed structures and functions of the nobility. + The first is the clergy. When, as a result of the differentiation of feudal society ethical and intellectual virtues of the nobility could no longer maintain general conditions of life, the clergy, by virtue of their abstract knowledge that ranged from philosophy and theology to law and medicine, became a class of new experts in generalities and thereby a new aristocracy. The second modern aristocratic institution is the judiciary, which has a structure and function similar to earlier aristocracies. The task of judges is to establish the highest virtue o constitutionalism. It is justice by law, which regulates general conditions of life in the state and society. What qualifies judges for the task is expertise in the new generality. The expertise includes not only education and experience in law but also impeccable private life and demonstrated professional ethics. + The third modern aristocratic institution is the profession, whose most important instance is the legal profession. It shares its structure and function partly with the judiciary and partly with other professions. It seems that modern professions are degenerating. In the key area of data processing, due to rapid changes of technology, professions as systems of the transfer of virtue do not even seem to be possible. Professional aristocracies are replaced increasingly by oligarchies of capitalists and technocrats. (SOI : PM: S. 111)

The author discusses provisions of the German Constitution and the practice of the German Federal Constitutional Court relevant for ratification of the Maastricht treaty and German membership in the European Union. In that context, the Manfred Brunner case decided by the Federal Constitutional Court is discussed. The mentioned decision has removed constitutional obstacles and has confirmed the constitutionality of the ratification of the Maastricht Treaty. The author suggests that the Constitutional Court has strengthened its position and defined itself as a safeguard of German state sovereignty and an obstacle for creeping extension of powers of the Union at expense of its Member States. At the same time, Constitutional Amendments were adopted in order to protect the German federal structure and affirm the role of the German Federal Countries in supranational decision making processes. The author suggests that the practice of the German Federal Constitutional Court fits well into the general trend of strengthening the role of the judiciary within both the national and supranational balance of power. (SOI : PM: S. 255)

Predmet rada su činioci i struktura političke kulture mladih u Srbiji. Politička kultura shvaćena je kao sveukupnost političkih i politički relevantnih orijentacija među pripadnicima jedne političke zajednice koja obuhvata nekoliko tipova orijentacije: kognitivne, afektivne, motivacione, vrednosne i ponašajne. ; The paper explores the factors and structure of youth political culture in Serbia. Political culture is defined as a comprehensive sum of political and politically relevant orientations of the members of a political community and comprises several types of orientations: cognitive, affective, motivational, evaluative and behavioural. Accordingly, five components of youth political culture were distinguished and operationalised by a large number of indicators. The empirical basis for the thesis is a survey conducted in 25 randomly selected secondary schools from the city of Belgrade. The total of 788 students from four different types of secondary school participated in the research: grammar schools (N=202), technical (N=207), economic (N=211) and medical (N=168). The sample was restricted to students of the final year (average age M=18.10, SD=.40). Three-quarters of students (75%) in the sample attend urban secondary schools and one quarter suburban (25%). There were more female participants (58%) than male (42%). Research results indicate that the level of youth political knowledge is low. The majority are not informed about topical social and political issues nor acquainted with certain basic rules regarding the functioning of the Serbian political system, such as the election threshold, government composition or the number of MPs. The prevailing feelings towards numerous analysed political objects are negative. Young people are highly dissatisfied with the current socioeconomic situation. The President, the Government, the Parliament, police, judiciary, the European Union or NATO, are not much trusted. Political cynicism is dominant, while for the majority politics is not the field of interest nor is considered important in life. Most students believe that they cannot influence political affairs (however, surprisingly, they are ready to vote in the following elections) while their opinions on social activism are divided. The attitude towards pro-system values is often ambiguous and vague. The attitude towards democracy is predominantly positive. However, the majority of students do not perceive favourably the newly established mechanisms and institutions of market economy and are hence more inclined towards the socialist than (pro-)market orientation. It can be said that they do not support the freedom of speech, multi-party system and rule of law.

Корупција представља једну од најважнијих тема међународне политике сузбијања криминалитета. Управо нас она упућује, заједно са савременим облицима коруптивног деловања, на потребу увођења одговорности правних лица за дела корупције. Дуго година владајућа максима societas delinquere non potest, која је одбацивала идеју о кривичној одговорности правних лица, у савременом кривичном законодавству је доведена у питање. О неопходности законског уређења проблематике одговорности правних лица за кривична дела говоре многобројни међународни документи које је наша земља ратификовала и на тај начин преузела обавезу имплементације норми међународног права. Овом приликом проблематизујемо питање које се односи на одговорност правних лица за кривична дела и кривичноправно сузбијање корупције. На овом месту размотрићемо да ли је потребно да се говори о кривичној одговорности правних лица, или је примереније терминолошки и са становишта теорије говорити о казненој одговорности правних лица. ; Corruption is considered a social problem not only in Serbia. This phenomenon is given more and more attention at the international level as well. This primarily means coordinated efforts in opposing this obstacle and threat to the development of every country. It is surprising how material-criminal legal norms were narrowly determined in the field of one of the most important topics of international and national policy of crime suppression. For decades, and particularly thanks to sensations of the last years, the practitioners, especially those in the field of judiciary and police, have been warning of corruption and the need of its suppression and limiting. The connection between corruption and organized crime has intensified even more the discussions on counter measures that could be incorporated into the existing laws and remove their weaknesses. Every country should undertake a number of measures and activities in the field of battle against corruption taking into account the international standards in this field. These measures may be of preventive or repressive character. This paper deals with criminal legal intervention that represents ultima ratio, i.e. the last resort that should not be used until all other means and manners to protect someone have been exhausted. Our legislator has responded in the meantime, removed the most important flaws that distort the picture about our criminal legal regulations and incriminated corruptive behaviour, taking into account at that the obligations undertaken based on international conventions. Very delicate field of the responsibility of legal persons for criminal act remains unregulated. In this paper we point out to the need and state the reasons, with parallel study of the achieved solutions in some countries and Anglo-Saxon and continental legal culture, why the issue of responsibilities of legal persons for acts of corruption and even more widely should be regulated by a separate law.

The development of both conventional and written legal rules that were governing the roots of the administration, has run in parallel with the development of the country. The development of legal state was going parallel with the development of constitutional state. The legal state can not be imagined without pandering Administration under the law, but precisely because of it stems judicial control of management, which is necessary for the full realization of the principle of legality and the protection of rights and legal interests of citizens. Administrative action presents a means to protect the rights and interests of citizens, but on the other hand it is also an effective tool for ensuring the legality of administrative operations. Pandering administration under the law is linked to the French Revolution from 1789, in this respect, France is a country that is the first to introduce an administrative dispute. The development of an administrative dispute in France can be followed through the occurrence and development of the State Council, which was formed during Napoleon time in 1799. The legal institutionalization of the administration is not done in the same way everywhere, in that sense we distinguish two big legal systems, Anglo-Saxon and European-continental. In Anglo- Saxon law legal institutionalization of the administration included the procuring administration under the legal norms of general law, management control exercised by courts of general jurisdiction. In the European-continental law legal institutionalization of the administration departs from pandering Administration under the legal standards that belong to a specific branch of law administrative law. In the European- continental system there is a difference between private and public law, and an important part of the legal regime are special administrative courts. The development of an administrative dispute actually juridical control of administration in Serbia can be traced back to the second half of the 19th century. Although Serbia has created very early the State Council following the example of France, in a formal sense the administrative dispute in Serbia was fully introduced by the Constitution from 1869. At our place administrative activities are controlled by the courts, which are an integral part of the judiciary and acting under special rules, rules of administrative law. Depending on the positive law of certain countries, the subject of administrative dispute is defined broadly or narrowly. According to French positive law the subject of administrative dispute may be not only single authoritative legal acts of administration, but also the general acts of administration - implementing regulations issued by the administration, as well as administrative objections. According to French positive law the subject of administrative dispute is defined very broadly, unlike the German and Austrian positive law, where an administrative dispute can not be conducted against all acts of general administration. Regarding that in the comparative law we meet a number of different solutions, we believe that in our country we should choose the one that would be the best way to provide protection for the rights of citizens. We lead the administrative dispute in the first place about the legality of final administrative act against other individual legal acts because of the silence of administration, and it may be decided on the request for the return of items and damages. The results of scientific studies will confirm the importance of the need that the subject of the administrative procedure should be complied with the case of an administrative dispute. All acts adopted in the administrative procedure should have directly open the way so the control of legality can be accomplished in administrative proceedings in front of the competent administrative court. What is certainly a major challenge is a control of the legality of administrative contracts. Extended subject of administrative dispute will strengthen the position of the parties in the administrative procedure, in order to guarantee them the quality of court protection in front of the Administrative Court.