Strani Pravni Zivot

Published by Centre for Evaluation in Education and Science
Print ISSN: 0039-2138
The purpose of this paper is to highlight the significance of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) in the overall system of personal data protection, especially from the perspective of non-EU countries that are members of the Council of Europe. This is attempted primarily through the evaluation of correlation between the Convention 108 and ECHR and GDPR in its segment that regulates relationship between the EU and third countries. The interest for the issue of personal data protection has been increasing among legal and ICT professionals, academics, government officials and even a general public over the years. This has been particularly intensified by adopting General Data Protection Regulation (GDPR). However, the adoption of the GDPR did not diminish importance of the Convention 108. On the contrary, it seems that the 'adequacy' principle regarding the third countries proclaimed by the GDPR, stresses its importance. The paper begins with the brief overview of the Convention 108 principles and the modernization that is brought by Protocol of 2018, which coincides with the entry into force of much-mentioned GDPR. It continues with analysis of the relationship between the GDPR and Convention 108, with focus on elements decisively influencing the assessment of the adequacy of the level of protection. Even though there is no sign of equivalence between the right to privacy and personal data protection these matters inevitably intersect in practice. Therefore, the final section of the text summarizes the cases of the European Court of Human Rights invoking Convention 108, with the aim to demonstrate how it is interpreted by the highest judicial instance in Europe.
Protocol No. 16 to the European Convention on Human Rights and Fundamental Freedom prescribes that the highest courts and tribunals of the High Contracting Parties, may ask from the European Court of Human Rights for advisory opinion within the interpretation or application of the rights and the freedoms that are defined by the Convention or its protocols. Potential problems, after Protocol 16 enters into force, could occur in a situation where the Supreme Court or a court with the right to seek an adverse interference, is obliged to apply for a preliminary ruling to the EU Court of Justice in the sense of Art. 267 of the Treaty on the Functioning of the EU. As Protocol 16 allows the highest courts of a Member State to apply to the Strasbourg Court for advisory deliberations on the basic consumers of the affair or the rights and freedoms guaranteed by the Convention and its protocols, and, as, on the other hand, EU law orders the courts, for that purpose, to apply to the EU Court of Justice previous decision based on the article. 267 UEFU, the issue of the efficiency of preliminary procedure and the autonomy of Union law, could be questioned.
The COVID-19 disease pandemic has opened a number of legal issues, one of which is the need to define COVID-19 as a possible consequence of performing work. In that sense, the question arose whether it could be qualified as an injury at work or as an occupational disease. When it comes to the comparative law, this need to put COVID-19 in a professional context has already been answered in various ways, and the wandering in that process (due to the complexity of the issue) is probably best illustrated by the fact that in some systems it takes on the nature of a legal chameleon that is adjusting itself to a sector of work or to a period of exposure to the virus. In the Republic of Serbia, on the other hand, the controversy on this issue is still ongoing - which is also the reason why a review of comparative legal experiences is necessary. And while the qualification of COVID-19 as an injury at work is problematic due to the fact that it is hard to define an event that could be characterized as an accident at work that produced such a consequence, the qualification of COVID-19 as an occupational disease encounters other problems. Most of those problems in the Republic of Serbia, on the other hand, are systemic in nature and, therefore, require fixes of the existing legal gaps and systematic changes of the existing regulations by the Serbian lawmaker. Additionally, when it comes to COVID-19, the one question that arises is the question of causality - having in mind that in this day and age we are all in contact with the SARS-CoV-2 virus to a greater or to a lesser extent. In that sense, occupational medicine will be entrusted with the difficult task of determining the occupational origin of this disease - since it does not seem fair to recognize the status of an occupational disease to an employee if there are reasonable suspicions on the matter whether the infection took place during his performance of his work tasks.
The concept of national human rights institutions (NHRIs) as known today originated under the auspices of the United Nations. Although national human rights institutions in the contemporary context have been the subject of a growing body of literature, the evolutionary path of the very idea of their creation has remained largely unexplored. The aim of this paper is to fill this literature gap by analysing key United Nations documents from the end of World War II to the adoption of the 1978 Geneva Guidelines. The paper reveals how the very concept of national human rights institutions had evolved over time, how it had been understood, which functions had been tied to these institutions, and which organizational forms had been taken as models. The paper explores the changes in the attitudes of UN Member States in relation to a given issue and provides a better understanding of the context in which this idea developed. In this regard, the paper also offers new insights into how the process of negotiating the core UN human rights conventions has influenced the evolution of the idea of creating national human rights institutions, a factor that has been rarely considered.
The matter of working time is an essential in labour law, considering dignified work as a labour work principle. It took a long time to achieve the standard of eight hours of work, eight hours of free time and eight hours of sleeping. Since the salary depends on worked hours, it was necessary to regulate working time by law. Even though, there are some misunderstandings in labour practice referring to overtime work. It is crucial to pay special attention to night work, as a work in difficult conditions. Considering health protection measures, it's important to di stinguish part time job and those jobs where working time is cut because of the harmful effects of the work place.
The state of emergency which lasted for almost two years represents an unprecedented event in the constitutional history of the French Fifth Republic. In addition to being characterized by unduly long, it also debilitated judicial and parliamentary mechanism for scrutiny of the president's powers, as well as those of police and security forces. At the same time, the executive has shown a tendency to exert scope of authority in the manner that is excessive in comparison to its constitutionally designed emergency prerogatives. Additionally, fundamental individual rights, and not only those contained in rules on guarantees of fair criminal procedure, have suffered limitations that are not easily justifiable by the need to protect the highest values of the Republic. This article is dedicated to examining the introduction of legal and factual conditions for the potential long-term disturbance of some of the basic components of the constitutional order of France.
This erratum concerns a correction in the article KONTROLA STRANIH DIREKTNIH INVESTICIJA U PRAVU EU U USLOVIMA KRIZE IZAZVANE PANDEMIJOM published in Strani pravni život, Vol 65, no. 3, 2021, pp. 361-374 (doi: 10.5937/spz65-33936). On page 361 in the course of editorial process a footnote was omitted. The missing footnote should state the following: ** Rad predstavlja rezultat projekta Pravnog fakulteta Univerziteta u Beogradu "Epidemija. Pravo. Društvo" za 2021. godinu. The corrected version of the article was published on the website of the journal: The error lies solely on the editorial board, and the author bears no responsibility. We would like to apologise for any inconvenience caused.
A basic human right - the right to life, even today faces numerous questions when it comes to its scope. One of those questions is the issue of the right to abortion, which is the subject of numerous controversies among lawyers, philosophers, medical workers, theologists, as well as among citizens in the broadest sense. Debates that exist in various scientific disciplines indicate the complexity of these issues that needs to be legally regulated at the domestic and international level. For that reason, it is necessary to follow and study the judgments of international bodies that have been passed in connection with this issue. As the most developed system of Human Rights protection has been established within the European Convention on Human Rights, and at the same time the most relevant for our country, in this paper the author studies the current practice of the European Court of Human Rights related to the right to abortion. It is evident, from the case law presented in this paper that the Court had a very delicate and difficult task to balance between diametrically opposing rights and interests of various interested parties. The Court's judgments show a consensus only regarding the question of the existence of the right to abortion in cases where the right to life and health of women is endangered. Opponents of abortion claim that in this case, it is not the right to abortion, but the right to life of a woman and that only then an abortion is allowed and justified to be performed, as well as that it is a conclusion that can be deduced from the Court's case law. However, the author of this paper believes that even though the practice of the court is quite neutral, it still tends more towards granting the right to safe abortion.
SLAPP (Strategic Lawsuits Against Public Participation) is a phenomenon that has been present around the world for decades, threatening various human rights and freedoms and undermining the very meaning and the purpose of judicial protection of rights. Considering that conducted research indicated a high probability of their presence in the Republic of Serbia, the aim of the paper is to present and analyze the notion of SLAPP, as well as to deliberate over some potential solutions that can be implemented in order to prevent use of this legal tool. After presenting numerous SLAPP examples from comparative case-law and analyzing the SLAPP concept, the paper turns to the rights that are most endangered by the submission of these lawsuits and provides an overview of relevant jurisprudence of the European Court of Human Rights. Results of the research show not only that ratified international instruments require prevention of abuses embodied in SLAPP suits, but also that the real purpose of these lawsuits can be achieved by using other methods, that will be more complicated to suppress. Finally, given that the initiative to combat this legal anomaly has already been launched within the European Union, the paper concludes that the Republic of Serbia should use the momentum and start tackling this issue sooner rather than later.
This article discusses a concept of legally permitted and limited offsetting in bankruptcy according to the law of the Republic of Serbia, with comparison to earlier regulations where the offsetting occurred by the force of law, as the legal consequence of initiating bankruptcy proceedings. Legal provisions, legal practice, opinion of the jurisprudence on general and special terms about the right to offset the claims in bankruptcy in the Republic of Serbia, as well as in the countries in the region, have been presented. Relevant legal solutions from laws on bankruptcy of Montenegro, Republic of Srpska, Republic of Croatia, and the Republic of Slovenia have been reviewed. Offsetting claims in bankruptcy proceedings are in principle allowed in regional countries as well. Regarding the effect of bankruptcy on the right to offset the claims, there is a great similarity among the legal solutions in regulations of above mentioned countries, except for the Republic of Slovenia. The Republic of Slovenia retained the broadest concept of legal compensation as a legal consequence of initiating bankruptcy proceedings, which constitutes an important difference compared to restrictive solutions of the Serbian bankruptcy law and regional legislation. This article aims to show to the business entities operating in the region, through comparative legal analysis, different conditions and procedure of offsetting in bankruptcy in national legislation, bearing in mind the importance of this legal institution, which allows the creditors to fully collect their claims outside the bankruptcy payment lines, and regardless of the number of available funds in the bankruptcy estate.
An analysis of not only domestic but also comparative legislation indicates the continued presence of the former trend in regulation of insurance contract law, which reflects the legislator's tendencies to protect the insurer from the policyholder's fraudulent conduct. However, certain legal systems have begun to amend their regulations in order to keep up with contemporary tendencies, reflected in providing the necessary protection to the weaker party, i.e. consumer. Therefore, the author analyses the mechanisms of protection of this contracting party presented in the Principles of European Contract Law on Insurance, because it is a source of soft law, whose authors sought to sublimate as many well balanced provisions as possible in order to achieve a higher level of protection for the weaker contracting party. The Paper analyses only some of the provisions of the Principles that strive to ensure the expansion in the scope of the policyholders' rights, while reducing their duties, on one hand, and excluding too severe sanctions in case of their misconduct, on the other hand. Even though it is high unlikely that any steps will be taken towards PEICL enactment by EU regulations, at least in the near future, there remains possibility for their impact at the legislative and scientific level. This is also testified by this paper, which can contribute to the review of current domestic legal solutions.
The case law of the European Court of Human Rights (ECtHR) pertaining to human rights protection of legal persons, including corporate entities, is well developed and extensively analyzed in legal literature. The international law of human rights is in the process of transformation from imposition of obligations only on States, to gradually taking into consideration the accountability of non-State actors, particularly corporate entities. The objective of the paper is to analyze the conceptualization of corporate accountability for violations of human rights in the case law of the ECtHR. The paper shows that the ECtHR thus far has approached the corporate accountability and has called for regulation of corporate activities at the national level by means of applying the doctrine of horizontal effect of rights guaranteed by the European Convention on Human Rights (ECHR) referred to as Drittwirkung and the doctrine of positive obligations of the states. The authors argue that the ECtHR so far in its jurisprudence has missed to fully take into account the overarching social and policy developments, and that it should take a more proactive role in conceptualizing its approach to violations of human rights committed by corporate entities.
Last two decades EU intensifies regulation of specific criminal law matters, both substantive and procedural. Although the EU was relay on Council of Europe and its instruments, adoption of Maastricht Treaty in 1992 and Amsterdam Treaty in 1997 reveal the fact that the EU will intensify legislative activities in this area. EU legislator was focused on protection of EU interests, improvement of security and strengthening of police and judicial cooperation in criminal matters. In parallel, the Court of Justice case law and legal instruments were shaping principle of mutual recognition in criminal matters. Preconditions for mutual recognition is mutual trust, to ensures smooth implementation of foreign decisions. In addition, it was necessary to develop minimal standards for protection of suspects and accused rights, as one of the elements of fair trial. After initial failure, in 2010 member states agreed on Stockholm program and Roadmap on strengthening of procedural rights in criminal proceedings. In line with Roadmap, during 2010-2016 six directives were adopted that regulates specific rights of suspect and accused persons. In the article, author analyses scope of directives, as well as case law of Court of Justice. Adoption of directives is important for establishment of legislative framework, but member states have obligation to transpose directives and implement them in practice. Effects of the directives on rights of accused and suspect should be assessed in the future.
This paper is dedicated to the analysis of the Council of Europe's activities concerning harmful actions of new religious movements. Within the first part of the paper, the author analysed Council of Europe's recommendations directed towards new religious movements. Within the second part, the causes for such Coucil's activism were examined. The third part is focused on establishing the relationship between the activities of the Council of Europe and national anti-cult strategies. Inside the final part, noticed tendencies and regularities were highlighted, together with the general summarization of the achieved insights. Among other things, it was concluded that the Council took a very cautious, liberal and tolerant attitude in relation to the matter of new religious movements. By recommending Member States exclusively to study these issues and educate the population, the Council clearly suggested the avoidance of legislative and other invasive anti-cult measures. Hence, the potential impact of the Council's recommendations can be sought exclusively within those countries that hold similar, liberal and non-invasive approach. By contrast, it is not justifiable to link such Council's influence with the policies of those countries that, contrary to recommendations 1178 and 1412, have opted for more radical (legislative and other) steps. On the other hand, it seems reasonable to assume that, on the contrary, countries with anti-cult legislation and other invasive anti-cult measures could easily influence the radicalization of the position of the Council of Europe, which can be noticed within the latest, yet not officially adopted, documents of the Council: Document 12595 and Report 13441.
Adequate representation of persons of minority origin in public sector bodies is one of the conditions for their effective participation in public affairs, as prescribed in Article 15 of the Framework Convention for the Protection of National Minorities. To establish whether a State Party fulfils this requirement, the Advisory Committee for the Framework Convention has developed the standard of adequate representation. The aspect of the standard which concerns the adequate representation of persons of minority origin in non-elected public sector bodies is still vague and insufficiently developed. That is a source of uncertainty as to the obligations of the State Parties and the appropriate methods for their realisation. The paper investigates the nature, content and scope of obligations ensuing from this particular aspect of the standard of adequate representation with the aim to contribute to its further normative articulation. The investigation is carried out by analysing the thematic commentaries and country-specific opinions of the Advisory Committee.
The article points to the problem of a lack of adequate mechanism for correcting errors of state institutions in their performance of public administration functions. It analyses the legal regulation and case law on the above issue. The analysis of court cases identified in the paper shows that for a long time there was a tendency to place on the citizens the burden of correcting the mistakes made by state institutions. In this way, property rights on legally acquired property were restricted or invalidated. This problem was in the Lithuanian context broadly discussed by the international courts. The aim of the article is to present the scale of the problem and the evolution of legal regulation and case law aimed at remedying it.
The Article provides an insight in the scope of regulation of the Latvian Administrative Procedure Law and the use of e-services and other means of electronic communication in administrative procedure. The scope of regulation of the Latvian Administrative Procedure Law is mainly determined by the definition of an administrative act, which, in turn, is derived from the German administrative law. The adoption and application of the Administrative Procedure Law is generally regarded as very successful example of transformation of the legal system. For the past ten years the government has introduced various e-services and other electronic tools designed to facilitate electronization of administrative procedure. The article outlines basic legal regulation of these tools, as well as gives a short insight towards recent impact of the pandemic of COVID-19 on use of electronic communication between the government and private persons.
Institutions in the form of so called formulating agencies have greatly contributed to the harmonization of international trade law. Their efforts in finding common principles in different national trade laws are all in the service of providing international trade flow, increased law certainty and prevention of legal disputes. To achieve those goals, formulating agencies use different normative methods, both traditional (hard law) and alternative (soft law) sources. However, imprecise allocation of jurisdiction between these international organisations leads to unreasonable wastage of intellectual and financial capacities, but also to a serious problem of doubling legal acts with purpose of regulating the same questions at the international level. Influence of formulating agencies on modern normative processes is steadily growing, yet still there are steps to be taken in terms of clear coordination and separation of their activities.
Violent offences directed against bodily integrity of other persons are indisputably considered as the most dangerous forms and aspects of criminality. They are known as the offences against bodily integrity or 'blood offences'. Due to its significance, nature, characteristics and con­sequences, the crime of murder, for which all contemporary legislations prescribe the most severe types and measures of punishment, particularly stands out among these criminal offences. There are three types of murder. They include : a) ordinary (common) murder, b) murder committed under mitigating circumstances and c) murder committed under aggravating circumstances, for which the most severe punishment is prescribed. All contemporary criminal legislations, as a law of the Eastern-European states are familiar with various forms and aspects of the crime of murder under aggravating circumstances. Murders committed out of various (different) motives that inspired their perpetrators to cause the death of another person, particularly stand out among other types of murder. This paper discusses the term, contens, characteristics, forms and elements of the crime under aggravating circumstances in the criminal laws of Poland, Russia and Baltic state (Estonia, Latvia and Lithuania), from theoretical as well as practical aspect.
Collective bargaining is a process of joint decision-making in which the social partners, representing the interests of their membership, try, in good faith, to determine the content and conclude the collective agreement. In this sense, collective bargaining is a way to resolve many issues related to the work process, to the satisfaction of all parties. In a context in which labour markets are characterized by inequality and uncertainty, the extension of the collective agreement is a key public policy instrument for the promotion of collective bargaining in general. However, certain principles must be represented to allow as many workers as possible to be covered by the extended effect of the collective agreement. These principles are set out in Collective Agreements Recommendation no. 91 of International Labour Organization and need to be followed to ensure respect for the free and voluntary nature of collective bargaining. With the fourth industrial revolution, the world of work changed radically, but the institute of the extended effect of the collective agreement can offer some answers to new circumstances, such as the increase of flexible forms of work and employment, migrant workers, or posted workers.
The right of the child to receive information about his donor and therefore his genetic origin is derived from the child's right to know who his parents are, as provided for by Article 7 of the Convention on the Rights of the Child. In order to understand Article 7 in an appropriate manner it needs to be interpreted with reference to Article 8 of the same Convention - the right of the child to preserve his identity, as well as Article 8 of the European Convention on Human Rights - the right to respect for private and family life. Regarding the rights of a child initiated by the assisted reproductive procedure to obtain information about his donor in comparative law, we encounter two opposing points. One group of legislation (Swedish, Austrian, German, British) provides unlimited availability of donor identification information, while another group (French, Danish, Norwegian, Russian) provides for an absolute prohibition of access to information on the provider of genetic material, with the exception of medical information. A special review was made regarding the legal solution envisaged in the law of Sweden as the state that first envisaged the right of the child to start assisted reproduction by obtaining information about his donor. The right of the child to obtain information on biological origin is derived from the child's right to know who his parents under Article 7 of the Convention on the Rights of the Child. In order to understand Article 7 in an appropriate manner it needs to be interpreted with reference to Article 8 of the same Convention - the right of the child to preserve his identity, as well as Article 8 of the European Convention on Human Rights - the right to respect for private and family life. Two judgements from European Court on Human Rights are an indicator of the development of thought in this matter. The significance of Odièvre's judgments in France and Jäggi in Switzerland is that the two judgments determine the scope of the right to information on genetic origin, but also indicate a possible extended scope of the right to information on genetic origin. These two judgments are also an indication of the extent to which children started with artificial insemination can rely on Article 8 as a means of obtaining information on the provider of genetic material An international act should be enacted that would allow children conceived with assistance of donor to get information about its biological origin.
Savremeni komparativisti Alan Votson i Patrik Glen, osnivači teorija pravnih transplantata i teorije tradicije, iako pripadaju istoj epohi uporednopravne discipline, veoma se razlikuju u načinu pristupanja savremenim pitanjima uporednog prava. Na početku rada je istaknuto pozajmljivanje pravnih tradicija kao jedini zajednički element ovih naučnika i istorija kao prelazna tačka i put „od slaganja ka neslaganju”. Autor se bavi analizom odnosa između teorija koje Votson i Glen zastupaju, sa posebnom pažnjom na razlike i suprotnosti koje u njima postoje. Prvo je naglašena razlika u shvatanju pravne istorije koja se javlja kao rezultat različitih pravnih teorija koje komparativisti zastupaju. Zatim autor ističe i analizira razlike u značaju i ulozi pravne tradicije i uporednog prava, koje predstavljaju nepremostiv jaz u gledištima ovih naučnika.
With the development of communication technologies, it has become clear that it is necessary to create an adequate legal framework in order to protect personal data. One of its indispensable elements is the creation of an independent supervisory body for the protection of personal data. By using comparative legal method, on the example of four neighbouring countries, of which all were members of the ex-communist bloc and are the EU membership candidates, author tried to find out certain common legal solutions within these countries regarding the election of their members seeking to achieve their independence. The author also gives appropriate critical view concerning certain solutions. These countries were chosen because, in the historical and social sense, they went and are going through what Serbia is going through in the process of joining the European Union. It has to be noted that the goals guaranteed and proclaimed by legal norms do not always have to be achieved in practice. However, one must also be aware that a valid legal framework is the first step, without which the proclaimed goals cannot be achieved. This is where the social justification of the scientific study of this topic is reflected.
The process of creation, development, adoption and enforcement of public policy presents an exceptionally challenging issue for several reasons. First of all, public policies are used to identify and resolve certain social problems and social issues, them being their primary aim. Furthermore, public policy articulates the aims of governing political subject, through which they strive to realize their programs. And finally, public policy satisfies certain needs of citizens and business community. It is therefore very difficult to achieve the full correlation of these three goals while simultaneously fulfill all genuine needs of society and ideological and political goals of governing elites. Something like this presents a challenge in the complex societies of post-conflict and countries of post-socialist transition, as Western Balkans countries are considered to be. Namely, for many decades such environments had a narrowly set and monolithic approach to the projection of public policy, though the concept of their strategic planning was radically revised a decade ago and entered into a completely different qualitative and quantitative phase. The subject of this paper is the Analysis of the alignment of public policies development in the Western Balkan countries with the European Union standards. The paper will envelop a brief review of public policy adoption process in Bosnia and Herzegovina, Serbia, Montenegro, North Macedonia and Albania. The pillar in the presentation of the said countries constitutes the existing criteria and tools which were projected and evaluated by SIGMA-OECD organization, with the aim to converge public administrations of Western Balkans countries with European administrative region. The paper uses the methods of legal exegesis, content analysis, comparative methods, principles and indicators of SIGMA-OECD, and provides an empirical review of the assessment of the situation conducted on the given thematic by the said organization.
The Baltic Sea, the heart of the Baltic region, is one of the most polluted seas worldwide. For the countries of the Baltic region, the relative importance of the Baltic Sea varies, but all coastal states of the Baltic Sea use the sea and influence it through their manifold activities. The protection of the Baltic Sea therefore is a shared concern for the coastal states. This shared concern has led to the emergence of a specific international legal régime governing the Baltic Sea. In this text, current threats to the Baltic Sea's natural environment and the international legal measures that are taken to protect the sea are described, in particular with a view to possible improvements. Particular emphasis will be placed on the northernmost part of the Baltic Sea, the sub-Arctic Bay of Bothnia that faces particular environmental challenges.
The specificity of the criminal law of the Nordic states is reflected in the fact that, in the trend of expanding punitiveness in the world and intensification in penal policy, one of the key features is avoiding the application of the prison sentence wherever it is possible and turning to its alternatives. Namely, the Nordic countries have remained on the same course for decades as regards the sanctioning of perpetrators of criminal offenses, and their mild penal policy, especially in the eyes of the Anglo-Saxon countries and countries under their influence, is directly related to high social spending in these societies and the existence of real social egalitarianism among citizens. The aim of this paper is to present a system of criminal sanctions in the law of the Scandinavian countries, with a key review of alternatives to prison sentence and their practical application, as well as to point out the reasons for the existence of such a system of sanctioning and its advantages in relation to legal systems with highly repressive elements in criminal policy.
This paper analyzes various conditions that one spiritual creation must provide in order to be considered an author's work, according to the law of the United States of America. Apart from the peculiarities that are the result of the Anglo-Saxon concept of copyright, there are other specifics such as the special, constitutionally provided, purpose of copyright in promoting learning, preserving the public domain and protecting copyright. Based on the provisions of the Federal Copyright Act (17 U.S.C.) and examples from the case law, the author explains how the originality of a work is interpreted, how the condition that the work must embody in a materialized medium is regulated and what are the typical types of copyrighted works. In addition, the author explains the main differences when it comes to American Copyright system and how the concept of registration is viewed, after the ratification of the Bern Convention, which is one of the most common causes of the problem of protection of works whose right holders are unknown, which is extremely notable when speaking of the protection of cultural heritage of marginalized groups in American society. The paper aims to point out the similarities and differences between the copyright of the USA and the law of the continental legal system in terms of the conditions for the protection of copyright works.
With a growing environmental degradation and the destruction of natural resources, it is increasingly recognized that criminal law protection is needed as the most repressive measure to protect the environment. This paper considers the criminal law protection of biodiversity in the Republic of Serbia, Republic of Croatia, Montenegro and Bosnia and Herzegovina, with an emphasis on the protection of wild plant and animal species that are particularly vulnerable to overexploitation, including strictly protected and protected wild species and forest ecosystems. The analysis covers various criminal offenses against biodiversity in the context of protection of wild plant and animal species, and discusses the effects of the implementation of relevant regulations. Comparative statistics on criminal charges, as well as accusations and convictions for these crimes in the last decade, indicate a worryingly mild penal policy and a lack of capacity of professionals to act in environmental criminal proceedings. Although statistics indicate that there has been an increase in the reporting of environmental crimes, the number of reported cases remains at a worryingly low level. A large number of criminal charges are rejected, and when criminal proceedings are initiated and conducted, mild criminal penalties are imposed, most often suspended sentences or fines. All this indicates that increasing the knowledge and capacity of professionals is needed in order to improve efficiency of criminal protection against the environment and biodiversity in practice.
The paper analyses the judgment of the International Court of Justice in the lawsuit of Qatar against the United Arab Emirates on the application of the International Convention on the Elimination of All Forms of Racial Discrimination and its contribution to the development of anti-discrimination law. The motives and procedural actions of the parties, the reasoning of the Court, and the consequences of the judgment are analysed, using legal, social, and philosophical methodologies. The research results in findings that the Court did not take into account the practice of human rights monitoring bodies. Instead, the Court teleologically interpreted the Convention and found that the substantive scope of the Convention does not cover nationality as a protected ground. This judgment does not give rise to optimism regarding further articulation and systematization of anti-discrimination law. Parochialism will certainly continue to prevail in the definition of the concept, protected grounds and relations, and purposes of protection against discrimination. Nevertheless, this judgment is useful in a few aspects: for the assessment of procedural prospects in the future similar proceedings, for understanding the scope of the Convention, and, in particular, for the understanding of various meanings of the notion of nationality within different contexts.
Košarkaški arbitražni tribunal (BAT) predstavlja međunarodno arbitražno telo u svetu košarke, čiji je osnovni zadtak rešavanje sporova koje nastaju u košarci. Ovaj tribunal je u velikoj meri doprineo uređivanju odnosa u košarci kao profesionalnom sportu i poštovanju potpisanih ugovora. Kao nezavisno telo od FIBA, a ipak u sadejstvu sa krovnom košarkaškom organizacijom, BAT je omogućio svim akterima u košarci brzo, efikasno i jeftinije rešavanje sporova. Postupak pred Tribunalom je uređen BAT pravilima arbitraže, a odlikuju ga pravila o jednom arbitru, ex aequo et bono, izostanak saslušanja i druga pravila maksimalno usmerena ka skraćivanju i pojednostavljivanju postupka. Odluka Tribunala ima snagu presuđene stvari, a do sada je izgrađena respektabilna praksa u rešavanju sporova. Iako je novijeg datuma, Tribunal poseduje značajnu arbitražnu praksu u svom dosadašnjem radu. Zbog svega navedenog, ovaj rad će analizirati BAT arbitražna pravila i ukazati na najvažnije tačke ovog Tribunala u rešavanju košarkaških sporova. Ključne reči: sport, Međunarodna košarkaška federacija, Košarkaški arbitražni tribunal, BAT arbitražna pravila
The EU Treaties provide that only courts and tribunals from Member States may raise a question on the interpretation and validity of EU law to the Court of Justice of the EU (267 EU). The reference for a preliminary ruling is an important procedure whose aim is cooperation between judges at national and European level in order to ensure uniform application of EU law. The Court of Justice should reconsider its interpretation of Article 267 TFEU and allowed arbitration tribunal to put question. On that way, will be preserve unique and compact system of European law. On the other hand, the arbitration tribunals from non member states in every case don't have competence to put question before European Court of Justice.
U radu se polazi od odnosa stranaka arbitražnog postupka i strana potpisnica arbitražnog sporazuma, potom se isputuje da li je istovetnost strana potpisnica i stranaka u postupku isključiva ili je reč o pravilu koje dozvoljava određene izuzetke. Stranke arbitražnog postupka su najčešće, ali ne i isključivo, strane arbitražnog sporazuma. Praksa je pokazala da učesnici arbitražnog postupka mogu biti i lica koja se nisu eksplicitno saglasila sa arbitražnim sporazumom, kao što je to slučaj kod višestranačkih arbitraža u kojima učestvuje grupa kompanija (grupa društava). Kod multistranačkih arbitraža u kojima na jednoj od strana postoji množina subjekata u formi grupe kompanija postavljaju se brojna pitanja koja su predmet ovog istraživanja. Kao osnovno postavlja se pitanje da li lica koja nisu potpisala arbitražni sporazum mogu biti učesnici arbitražnog postupka. Odgovor na ovo pitanje traženo je u komparativnoj analizi normativnih pravila kojima se uređuje punovažnost arbitražnog sporazuma, kao i kritičkim tumačenjem arbitražnih sporova vođenih pred arbitražnim i sudskim većima. Rezultati do kojih smo induktivnom metodom došli ukazuju da potpis lica nije uslov za učestvovanje u arbitražnom postupku te da je moguće subjektivno proširenje dejstva arbitražnog sporazuma. Analiza novije arbitražne prakse i pretežnog dela teorije je pokazala da je u slučaju grupa kompanija rešenje diktirano praktičnim potrebama da se uvaže realni odnosi koji postoje u pravnom prometu nastali posebnom prirodom grupe kompanija koje se tretiraju kao „ekonomsko jedinstvo”. Rad je podeljen na četiri dela. Prvi deo posvećen je arbitražnom sporazumu kao osnovu konstituisanja nadležnosti arbitražnog tribunala; drugi analizira subjektivni domašaj arbitražnog sporazuma, dok je treći deo posvećen učešću „grupe kompanija” na strani jedne od stranaka u brojnim arbitražnim i sudskim postupcima. Poslednji deo se bavi zaključnim razmatranjima obrađene teme. U radu se polazi od odnosa stranaka arbitražnog postupka i strana potpisnica arbitražnog sporazuma, potom se isputuje da li je istovetnost strana potpisnica i stranaka u postupku isključiva ili je reč o pravilu koje dozvoljava određene izuzetke. Stranke arbitražnog postupka su najčešće, ali ne i isključivo, strane arbitražnog sporazuma. Praksa je pokazala da učesnici arbitražnog postupka mogu biti i lica koja se nisu eksplicitno saglasila sa arbitražnim sporazumom, kao što je to slučaj kod višestranačkih arbitraža u kojima učestvuje grupa kompanija (grupa društava). Kod multistranačkih arbitraža u kojima na jednoj od strana postoji množina subjekata u formi grupe kompanija postavljaju se brojna pitanja koja su predmet ovog istraživanja. Kao osnovno postavlja se pitanje da li lica koja nisu potpisala arbitražni sporazum mogu biti učesnici arbitražnog postupka. Odgovor na ovo pitanje traženo je u komparativnoj analizi normativnih pravila kojima se uređuje punovažnost arbitražnog sporazuma, kao i kritičkim tumačenjem arbitražnih sporova vođenih pred arbitražnim i sudskim većima. Rezultati do kojih smo induktivnom metodom došli ukazuju da potpis lica nije uslov za učestvovanje u arbitražnom postupku te da je moguće subjektivno proširenje dejstva arbitražnog sporazuma. Analiza novije arbitražne prakse i pretežnog dela teorije je pokazala da je u slučaju grupa kompanija rešenje diktirano praktičnim potrebama da se uvaže realni odnosi koji postoje u pravnom prometu nastali posebnom prirodom grupe kompanija koje se tretiraju kao „ekonomsko jedinstvo”. Rad je podeljen na četiri dela. Prvi deo posvećen je arbitražnom sporazumu kao osnovu konstituisanja nadležnosti arbitražnog tribunala; drugi analizira subjektivni domašaj arbitražnog sporazuma, dok je treći deo posvećen učešću „grupe kompanija” na strani jedne od stranaka u brojnim arbitražnim i sudskim postupcima. Poslednji deo se bavi zaključnim razmatranjima obrađene teme.
The paper analyses the European Arrest Warrant which is based on the principle of mutual recognition and the principle of effective cooperation, which represent the foundations of judicial cooperation in criminal legal matters. The authors analyse whether there are obstacles to mutual recognition of decisions and how effective cooperation is when it comes to the European Arrest Warrant. The paper includes the conducted research regarding appeals against the European Arrest Warrant addressed to the Supreme Court and the High Criminal Court of the Republic of Croatia. The aim is to use a random sample to determine which criminal offenses are most often the subject of the European Arrest Warrant, as well as the number of rejections or acceptance of appeals against the European Arrest Warrant. In particular, by using the case study method, cases were analysed in which the appeal was accepted, i.e., to determine the shortcomings of the first instance courts in making decisions. According to the available data, an analysis was performed on the number of issued and executed warrants for individual countries from 2014 to 2018, which shows the functionality of the implementation.
The paper analyses the contemporary security concept, with a special review of the security aspects of migrations. After the introduction, which primarily offers certain terminological concerns, and a review of the historical development of the term security, the paper points to the impact of globalization to national security, and the existence of interdependence of countries in modern age. For this reason, the paper especially emphasizes the importance of international organizations, as well as international documents, which present the basic guidelines for treatment of security risks modern society is facing. Although literature points to a series of security challenges and threats, it seems that in recent years the problem of mass migrations is a special problem, which was the reason for the other part of the paper to be dedicated to security aspects of migrations, in two basic directions: first, pointing to the principal problems appearing as the consequence of migrations, and second, presentation of the model for a response to the migration crisis. The last part of the paper is dedicated to conclusive contemplations.
The paper analyses the rights of members of closed companies originating from common law - drag along and tag along rights. Since they represent effective instrument of prevention of second agency problem of corporate governance, relating to the conflict of interest between majority and minority shareholder, as well as for resolving conflicts between members that may occur in case of the sale of a company's share, these rights were introduced in civil law countries as well. In recent years, drag along and tag along rights have become more significant in domestic practice, since they are often contracted between members of domestic companies. For this reason, it is important to understand the purpose of these rights and the interests that are protected by them. Therefore, the aim of this paper is to explain the concept and purpose of drag along and tag along rights.
With almost all public services delivered online, functioning system of e-residency and established 'data embassies,' Estonia is also home to blooming creative community and numerous companies ranging from small start-ups to tech giants. Apart from being the result of a clear and long-lasting political orientation, this success is strongly correlated with Estonian legislation and, more narrowly, its regulatory framework on both information/ digital society and protection of intellectual property rights (IPR). After examining the most relevant features of Estonia's legislation related to digital economy and society (Chapter 2), this paper analyses the country's regulatory framework on copyright (Chapter 3) and patents (Chapter 4) in the light of digital transformation. The author argues that there is a direct correlation between, on the one hand, regulatory framework dedicated to IPR protection on both EU and national level and, on the other, development of digital technologies. The study of Estonian legislation and practice in the field of copyright and patent protection has shown that, in numerous aspects, the country is largely dependent on the good functioning of wider EU legal and institutional framework, while, in the near future, the technological advance would require more supranational regulatory mechanisms.
Top-cited authors
Mario Reljanović
  • Institute of Comparative Law
Aleksandra Višekruna
  • Institute of Comparative Law
Milica Matijević
  • Institute of Comparative Law (Belgrade)
Hana Kovacikova
  • Comenius University Bratislava
Katarina Jovičić
  • Institute of Comparative Law