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As a result of a criminal offense or petty offence, application of penal (criminal or petty offence) sanctions against its perpetrator occurs. They usually consist of deprivation or restriction of the right of the convicted person - the right to freedom of movement - for some time, as determined by the court judgment. But it is possible that the previously imposed penalty sanctions is revoked later in the proceedings on extraordinary remedies. It is the case of aill-foundedly convicted (in criminal law) or ill - foundedly punished (in the petty ofence law) of a person. Certain rights, aimed at protection of his rights and freedoms, consisting of complete or partial removal of all harmful consequences of prior conviction or sentence imposed, belong to such a person. And this paper is about the concept, characteristics, manner and procedure of exercising the right of persons ill-foundedly convicted and groundlessly detained in a criminalor ill-foundedly penalized in petty offence procedure.
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In the positive law of the Republic of Srpska administrative matter is not normatively defined. In theory of administrative law there is no consent regarding the constituent elements of this term. Jurisprudence comes to administrative matters is characterized by inconsistency, propensity to an administrative matter is determined on a case-by-case basis, without sufficient and valid arguments. Therefore, this paper aims to draw attention to the need for an adequate legal definition of this term in order to facilitate the work of public administration bodies and judicial instances in every day activities.
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At the beginning of the XXI century has changed radically criminal procedural legislation in BiH. One of the most important novelties is the procedure of issuing a criminal warrant. This procedure has been accepted solely under various foreign influences. Although it is a new procedure, it is applied massively. Approximately in half of the indictments the prosecutor files an application of issuing a criminal warrant. However, this procedure has caused numerous dilemmas, both in theory and in practice. It is obvious a need for amendments of the provisions that regulate it in order to standardize it more accurately, better and more completely. This task can certainly contribute to the study of this process in other legislations. In comparative legislation particularly significant is Swiss Strafbefehlsverfahren. It has influenced the emergence of this process in all other legislations, including in Bosnia and Herzegovina. This fact points to the need for knowledge of basic characteristics of this famous Swiss procedure. It is the most representative of the traditional form of procedure of issuing a criminal warrant, which is commonly called mandatory procedure, which exists in most jurisdictions. There, a penal order represents a particular court and extremely prosecutorial decision, which is adopted on the basis of files, without direct contact between the court and the parties. The procedure of issuing a criminal warrant in BiH is significantly different from the mandate procedure. The main difference is in the fact that issuing a criminal warrant is preceded by a hearing in which the defendant explicitly declares whether he will accept the proposal of the prosecutor. Some solutions of the Swiss procedure of issuing a criminal warrant are affordable and could improve this procedure in BiH.
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The author points to the legal problems arising in the application of law in connection with the „Swiss franc loans“ case and explains the basic legal categories relevant to the understanding of the issues in the judicial practice. It is a problem in terms of the loan agreement with foreign currency clause in Swiss franc incurred due to the jump of the Swiss franc. The accent is put on the study of judicial practice in the Republic of Serbia, Montenegro, Bosnia and Herzegovina (RS and FBiH) and the Republic of Croatia (and the EU). The author, with the synthetic view on the current judicial practice available in selected countries, segregate from the numerous court decisions, legal issues that were dealt with by courts, citing the courts and the arguments that he considers relevant for the understanding of the views expressed. The courts of those countries, sometimes, had a different answer to the controversial(contract law) matters, and the author recognizes these differences, but also common features and tries to comment on the situation in the jurisprudence.
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Review of: УРОШ ПЕНА, БРАНИСЛАВ ПАВЛОВИЋ: „РЕГИОНАЛНА ПОЛИЦИЈСКА САРАДЊА“, Завод за уџбенике и наставна средства, Источно Ново Сарајево, 2016, стр. 240.
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This article traces the legal framework in the Republic of Bulgaria regarding the concept of "personal data". The author analyzes the importance and powers of the Commission for Personal Data Protection as an independent national supervisory body in the Republic of Bulgaria in the implementation process of the General Regulation for the Personal Data Protection. The importance of the lawful processing of personal data and the criteria for qualifying the leak of personal data as breach are indicated. The article presents an analysis of the National Revenue Agency leaks case, essential for the Republic of Bulgaria. The author traces the arguments of the Bulgarian court in the direction of defining security breaches as illegal leaking of personal data. It is made an assessment of the independent supervision carried out by the Commission for Personal Data Protection regarding the legality of the personal data processing by the individual administrators. The more important powers of the Commission for Personal Data Protection in connection with the fulfillment of its obligation to carry out independent supervision under the General Regulation on the Protection of Personal Data are also examined.
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This article presents a retrospective analysis of the results obtained from all preliminary and analytical data of case studies for drugs of abuse (DoA) by drivers in the Forensic Toxicology Laboratory (FTL) atMilitary Medical Academy - Sofia (MMA) during the period 2020-2021. A total of 1,975 drivers from 26Regional Directorates of the Ministry of Internal Affairs (RDMIA) were examined. A negative result for the DoA was obtained in 53.8% (1062 cases) of all examined persons, and in 12.3% of them (131 cases) the presence of DoA and/or metabolite/s was found only in the urine sample. A positive result for the DoA was proven in 46.2% (913 cases) of all examined persons. In 62.3% (410 cases) of all positive examinations for the DoA by motor vehicle drivers with prior information, a complete match between the test "on the road" and the laboratory testing was established and proved. Coincidence between these two results, but with established use of another DoA in the laboratory analysis, is found in 19.5% of all positive expertise with preliminary information (128 cases).
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According to the traditional belief, based on the texts from the Justinian compilation, there dominated in Roman Law throughout its long history the rule that the risk of accidental destruction of sold property from the moment of entering into the contract is borne by the buyer (periculum est emptoris). The author, on the contrary, is of the opinion that this is a Greek principle, which the compilators imposed by interpolating classical texts, while classical law observed the contrary principle, that up to the handing over of the sold property the risk of accidental destruction of the same is borne by the seller. Pointing out the already noted descrepancy between the principle „periculum est emptoris” and the principle of mutual dependence of obligations in synallagmatic contracts, the author comments that its application results in absurd and unfair consequences, which are not characteristic of the Roman Classical Law. Besides that, the reverse principle — „periculum est venditoris” — may also be found in some of the texts of Digesta which have evaded the compilators (for example D-18. 6. 13 and 15; 19. 2. 1, 33), as well as in „Summa Perusina”, a medieval summary of codification which, falsifying the text of the law, virtually expresses the true tradition of the classical law. The author challenges the credibility of the new, improved version of the traditional belief as well, according to which the general theory of risk originated in as late as the Justinian Law, vhiile classical law offered versatile solutions in each particular case, so that both principles had their own spheres of implementation (Rabel). The texts based on this interpretation, in the opinion of the author, are partly interpolated and therefore cannot provide the basis for reaching conclusions, and partly do not refer to the risk accidental destruction of sold property at all. The undisputed texts, on the contrary, clearly evidence that the principle — „periculum est venditoris” is applied in classical law.
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In this article, which is devoted to the codification of civil law in Yugoslavia between the two World War's the author emphatically reacts the point of view according to which the Austrian Civil Code should be considered as the basis of the Yugoslav Civil Code. This would predominantly be a national and political error. Yugoslavia should have a Yugoslav civil code, which would comply with the needs of the Yugoslav circumstances. It is not convenient to incorporate the spirit of a deposed order into a new, revolutionary one, such as had been the newly formed state. Victorious Rome had a bad experience with defeated Greece. Likewise, Austrian literature and the practice of Austrian courts would be of little and to the implementation of the code in Yugoslavia, since the language is alien to the majority of the judges. Next, court practice is valid only if it is formed gradually and with regard to the domestic circumstances and needs. Foreign practice, and literature, if the intention is to take them as an example provoke sterility in the work of the imitator, instead of helping him. If the Austrian Code were to be adopted, there lurks the dangerous possibility of a split between Yugoslav theory and practice, for it is reasonable to assume that the courts would interpret the law independently, while theory would for long still remain deprived of this independence, that is, under the influence of Austrian theory. According to the author Bogišić’s General Property Code for Montenegro, with several necessary alterations, could be spread to the whole country. That Code, the pride of the creator as well as his people, is one of the best in the world; foreign jurists have also considered it among the best. This Code stresses the author, has been created by our own compatriot, who had excellent know-how, for the benefit of a part of our people the spirit of which is much closer to the wast majority of our people than the Austrian. The fact that the Montenegrian community is primitive does not mean that the Montenegrian Code would be unsuitable for the rest, culturally more developed regions of Yugoslavia, for this Code is more progressive than the Austrian Civil Code.
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This article was written at a time when collective labour contracts became more frequently entered into in our country, as the result of strikes and activités of the trade unions of the organised workers, and it stesises that it is about a new significant manifestation of life which cannot be incorporated into the framework of any traditional legal system. It does not discuss the cotract in the classical sense of the term, but as an „agreement between a professional workers’ organisation, or a group of workers, and an organisation of employers, or one employer, concerning the conditions under which it would in future be possible to enter into individual labour contracts between individual workers and individual employers”. Teherefore, this contract does not refer to any concrete employment, it consists of abstract regulations, it only determines the framework of relations between workers and employers. On the other hand, these contracts, although very close to laws and decrees owing to their abstractness and generality, differ from the former by their flexibility. That is, they are created in particular circumstances as the result of a degree of pressure inflicted on the employer by the organised workers, „like the economic réconciliation contracts between antagonistic groups of workers and employers”, consequently they are altered under the impact of the change of circumstances. The clause „rebus sic stantibus’’ is completely applicable to' them. The specific nature of these contracts is discerned by the scrutiny of their substance, by the parties intering into the contract, by the parties to which it is applicable, its effect as well as the consequences of the breach of its provisions.
More...Привидно вътрешни ситуации в неуредени аспекти на материя, в която ЕС има компетентност, или в материи, в които няма компетентност
On the face of it, it makes most sense to assume that matters in which the EU does not have competence do not fall within the scope of EU law. The Court of Justice of the European Union, however, comes up with numerous disparate and at time sobviously conflicting views. Therefore, determining the existence of a link with EU law would take more than a mere formalistic approach.“Falling within the fields of competence conferred on the EU” or “being formally regulated by a Union legal act/Union law rule” would be insufficient to establish the existence of a link of a matter/situation with EU law. Conversely, it would not suffice to establish simply that the EU lacks competence in a particular matter in order to assume that this matter is not at all linked with EU law.
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This statement covers the cases in which, for the purposes of criminal proceedings, in cases of domestic violence, it is necessary to appoint forensic experts or specialists with in-depth knowledge in various areas.
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The article outlines the nature and types of legal interest of the substituted party in procedural substitution. It is argued that this interest is private and could be individual /personal or collective/group interest.
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This publication analyzes the results of a research survey on the formation and the subsequent changes in handwritten signatures, which was conducted in Bulgaria at the beginning of 2023. The author believes that the findings and the summarized results will increase the professional knowledge of the forensic handwriting experts and help in their work on pre-trial, penal and civil court cases.
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In the present study, an attempt is made to consider from a forensic point of view the organizational, tactical and procedural requirements for the interrogation of a witness with a secret identity in the investigation of crimes committed by organized criminal groups. It is established that the lack of sufficient investigative practice and research on this issue hinders the work of the pre-trial bodies, limiting the possibility of effective use of this specific procedural method of gathering evidence. In the present study, the basic requirements and steps for the emergence of the procedural figure of the witness room identity, as well as the prerequisites for the use of this legislative approach to witness protection are considered. Frequently used measures of various nature are inexhaustibly mentioned - organizational, tactical and procedural, which would "hide" from the accused the true identity of the witness. The study briefly examines the process of questioning the witness with his secret identity in its three main stages - preparatory, substantive and final, and made tactical recommendations to increase the effectiveness of the investigative action. The interrogation of a witness is also considered from the substantive side, with the main groups of circumstances subject to clarification in the case of crimes committed by organized criminal groups.
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