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This article aims to discuss the main differences between amnesty and pardon, as well as their effects. The elements of legislative technique used over time in drafting amnesty and pardon laws are also being evaluated.
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This paper firstly points out to historical and comparative state of parole in American and European law, which is an introduction into analysis of transformation in its regulation in criminal substantial, procedural and enforcement law in Serbia. Today there are two models (obligatory and discretionary) of parole, which is allowed after 2/3 of the served sentence of imprisonment. At the same time special Code on prevention of sexual victimization of juveniles – contrary to the Criminal Code– abolishes a possibility of earlier release of all offenders of sexual crimes against juveniles. The author argues in favor of abolishment of parole prohibition for any category of offenders; restoration of the rule that half of the served sentence of imprisonment is a condition for consideration of request to be released on parole (only exceptionally for recidivists and those whose criminal habit has been proven conditional release would be allowed after 2/3 of served sentence); proposes specification of substantial requirements for approval; retention of solution that the court decides on conditional release, but with obligatory invitation of convicted person who would be entitled to comment on allegations made at hearing; judge for execution should also attend the procedure; an explanation must be justified by precise reasons which were decisive for the court; the appellate court should not only deal with formal aspects of procedure in deciding on contested verdict, but also with merits of arguments on which it is based; politicians should publicly explain the importance of parole in situations that make the public concerned because of media reporting about incidents in which conditionally released persons commit serious crimes; finally criminological sciences should be engaged in research that would help in searching for a suitable model of parole, which would be in accordance with international instruments and jurisprudence of the European Court of Human Rights.
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Patria potestas appears in the tradition in two aspects: as the father’s right to put his son to death and as the right to dispose of the family property. All examples concerning the murder of the son (or daughters) known to the Roman authors are from the time of the Roman Republic. The father’s right to dispose of the property even when the son is an adult lasted until the Later Empire. In a detailed study W. V. Harris limited his disucussion to ten examples of the son’s murder and three of the daughter. They are mostly not qualified as the ius vitae ac necis by the Roman authors. It is important to stress: a) That these examples mainly illustrate the father’s right in charge as the high magistrate. In putting their sons to death the fathers magistrates did not use the vitae necisque potestas of the father but the authority of supreme state officers. The crimes of which the sons were accused belonged not to family affairs but to offenses against the military discipline and State interests. b) The only condition in applying the vitae necisque potestas was a moral one, the existence of the iusta causa. Even then it was not unpunished, and in many cases the father went into exile. c) The father’s power existed only over legally born children within a legal marriage. Legal marriage was the privilege of patricians until 444 BC. That means that the patria potestas was originally limited only to patrician families. Biological kinship was not a decisive factor in the restitution of the father – children connection. d) The main right of the pater in the family was not to kill its members, but to preserve his position in economic control and to dispose of the property which was once common and eventually to control the moral behavior of the family members.
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By opting for the approach based on the dichotomy of individual criminal responsibility for the act of genocide and the responsibility of the State in both the Bosnian and Croatian Genocide cases, the International Court of Justice enabled the establishment of a jurisprudential connection with the judgments of the International Criminal Tribunal for the Former Yugoslavia. After outlining the reasons for adopting such an approach, which are classified as both positive and negative, the author offers an extensive analysis of the differences between the ICJ and ICTY, stressing the necessity to take these differences into account when considering the interconnection between the “World Court” and the ICTY as a specialized tribunal. The paper focuses on the need for a balanced and critical approach to the jurisprudence of the ICTY as regards genocide, by differentiating between the Tribunal’s factual and legal findings.The author insists that a substantive criterion, not a formal one, must be applied with a view to the proper assessment of the factual findings of the Tribunal in accordance with the standards of judicial reasoning of the ICJ. As regards the treatment of the ICTY’s legal findings which relate to genocide, it is stressed that their uncritical acceptance would compromise the determination of the relevant rules of the Genocide Convention by the Court. Namely, the law applied by the ICTY as regards the crime of genocide is not equivalent to the relevant law established by the Convention and may be understood as its progressive development rather than its application.
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Serbian Criminal Code (CC) provides in art. 32 that offender who voluntary withdraws from an attempted offence can be released from punishment. CC distinguishes between two different types of attempt, unfinished and finished attempt. For both types CC prescribes that withdrawal must be voluntary. In earlier theory the distinction between voluntariness and involuntariness was made on the basis of the so-called Frank’s Formula (the withdrawal is voluntary if the perpetrator says: I don’t wish to complete the offence if I could, whereas it will be involuntary if he thinks: I cannot complete the offence if I wanted to). This theory has been abandoned in the modern criminal law doctrine. The requirement of voluntariness is usually interpreted according to psychological and normative approach. According to art. 32 (2) CC there is no voluntariness if it is impossible for the offender to commit the offence or if there are some obstacles which make significantly difficult the commitment of the criminal offence. Serbian jurisprudence holds a restrictive approach to the requirement of voluntariness despite the fact that CC unlike the law of some other countries doesn’t prescribe that withdrawal leads to a full acquittal from the charge based on the attempted offence.
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The author deals with civil aspects of international child abduction, regulated by the Convention on the Civil Aspects of International Child Abduction signed in 1980, and ratified by former Yugoslavia in 1991. The author analyzes two situations: the first, when a child is wrongfully removed from one contracting state to Serbia, or wrongfully retained in Serbia, and the second, when a child is wrongfully removed from Serbia to another contracting state, or wrongfully retained in another contracting state. Serbian authorities presently work on a Draft Act on Implementation of the Convention. The aims of this Act are: to enhance uniformity of the practice of Serbian courts in this area, to enable the courts to act promptly, and to regulate procedural issues. Furthermore, pursuant to Articles 75 and 78/3,4 of the Family Act of Serbia, removal or retention of the child is considered wrongful if parents are not in agreement on relocation of the child, regardless of whether they exercise parental rights jointly or independently. This rule causes problems of interpretation for foreign courts. In the end, the author draws attention to the difficulties of proving that a parent has given consent to relocation, as one of the most complicated issues in judicial practice. In conclusion, author pledges for wider use of mediation in abduction cases.
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Medical error may come about as an action or omission of a medical doctor, which is contrary to the medical standard of conduct, or duty of care. Irrespective of its form and shape, an error in itself does not necessarily lead to either civil or criminal liability. Liability may be established only if medical error resulted in death of a patient, or if it caused harm to patient’s health. This type of causation may not be legally presumed. The proof of causal link between medical error and death or harm to health is hard, as it is based on medical assumption of probability. The proof of causal link here boils down to the evidence of hypothetical causation. It reflects relation between the existent and the non-existent, and has nothing to do with the notion of causation in science and logic, but with the legal assessment, which allows the failure to prevent harm to be considered a cause of such harm.
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A thorough re-organization of the preliminary stage of criminal proceedings is announced as one of the most important changes in the future reform of Serbian system of criminal procedure. On this point, the essential novelty would consist of abolition of the investigating judges, and giving more investigative powers to the public prosecutors. This paper deals with international standards and requirements, directly or indirectly related to preliminary criminal proceedings. The author pays special attention to standards and requirements of the European Convention on Human Rights, the case law of the European Court of Human Rights and the Acquis Communautaire, particularly when it comes to legal status of the victim and the accused in the pre-trial and investigation stages. The author juxtaposes two models of criminal justice systems – the liberal model and the human rights model.
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This paper offers an analysis of the position of women in penitentiary institutions. The authors firstly explicate data on the increase in number of incarcerated women in Serbia in the last decades, and clarify the results of the research related to the effects of such penal policy. The second part of the paper contains information obtained on the account of the opportunity to communicate with a female ex-inmate of the Penal Correctional Institution in Požarevac, Serbia. After a thorough documentary analysis of her case records, a series of semi-structured interviews with the former inmate were performed „face to face“, allowing her to put across a traumatic experience of her stay in the penal facility. This account was carefully and accurately noted down and later subjected to content analysis, in order to determine both cognizant and subliminal messages of the interviewee. The authors made an effort to avoid the mistake of generalization, and tried not to make wide-ranging conclusions regarding the existing penal system based on the experiences of one (though atypical) incarcerated person. However, and taking into account the conclusions of other researchers arrived at in other parts of the world, it may be inferred that a penal system which easily resorts to imprisonment as a form of punishment, hardly can achieve the goals put before it by the society. It is obvious that, instead of their re-socialization, a tough penal system imposes passive submission on the convicted individuals, and pushes them toward hypocrisy, paranoid attitudes and mortification of identity. For this reason, one should not be puzzled by the high rates of penitentiary recidivism in contemporary societies.
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It is a long time ago now since legal science has marked several obstacles to development and formation of the international criminal law. This paper intends to clarify the relationship between the politics, as one of the most powerful obstacles of that kind, and the international criminal law and the institutions of its system of justice. History of the international criminal law is the history of political influence on its formation and application. However, politics has a two-sided impact on the international criminal law. It is a burden for the international criminal law, but it is also a prerequisite of its existence. It stimulates and inhibits its promotion at the same time. The law and the politics are permanently interconnected in this sphere. They are indispensable to each other, as international criminal law cannot take effect without politics. They are also in constant dispute, in which politics may often prevail and hamper the law.
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This paper deals with the law and practice of the International Criminal Tribunal for the former Yugoslavia from the human rights perspective. In particular, the author tries to clarify methods by which the Tribunal has sought to protect human rights of parties in the proceedings. In that respect, the author criticizes the Tadic decision where the Trial Chamber held that it was not bound by universal human rights principles because of its unique structure and the nature of subject matter it dealt with. In his further analysis of the question whether the ICTY’s jurisprudence is in line with human rights standards, the author explores three sets of questions. First, certain substantive law issues are investigated in order to determine whether the ICTY is involved in the so-called progressive development, or this body merely applies the existing rules of International Humanitarian Law. Second, the author explores the equality of arms principle and concludes that it is one-sided, because there is no real possibility for the accused to properly examine all exculpating and mitigating materials. In addition, the author argues that in criminal matters, it is the ‘beyond reasonable doubt’ standard of proof rather than the ‘probability standard’ that should be preserved. Besides, the standard of appellate review uniformity applied by the Appeals Chamber significantly restricts the right of appeal. The author concludes that the ICTY’s jurisprudence is, and will be critically evaluated, particularly in attempts to build some solid basis for the imminent jurisprudence of the International Criminal Court.
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The principle of legality has always been considered one of the main principles in criminal law. Such approach has caused a relatively uncritical position towards the principle which has usually been considered a value which is not subject to any additional valuation. Nevertheless, in the paper the author considers the principle of legality from a different point of view – its power of resisting continuous evolutionary changes. Thus, he perceives that the principle of legality is an evolutionary phenomenon itself which, being such, necessarily competes with other evolutionary features of a specific moment. Thus, inalterability of written norms, being one of the main characteristics of the principle of legality, necessarily causes a tension towards products of the cultural evolution, the result of which is diminishing of the original significance of the very principle of legality, if understood in the classical sense.
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This paper comprises the comprehensive analysis of the weaknesses of the criminal sentencing in Serbia at the end of the 19th and at the beginning of the 20th century. It can be argued that the criminal sentencing was internaly weak due to the uncritical use of extenuating circumstances. The use of confession and good behavior was inappropriate and sometimes illogical. The firm evidence would sometimes show that the accused was innocent, but the court would nevertheless accept his confession. On other occasions, the judges would quote good behavior of the accused into the sentence, even though he was held on a charge of repeated violation of the law. Furthermore, the very execution of the sentences weakened them as convicts had spent idle days in the prison. For many convicts, the conditions of life were better in prison then outside.
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The author presents the state of research in the field concerning the reception in the Slovenian territory, concluding that in comparison with many other European countries this phenomenon in Slovenia has not been given enough attention. More systematic studies aiming at the analysis of specific legal sources as well as contractual and judicial practice should be carried out in the future. Only separate detailed studies, when combined, will ultimately give a clear picture of reception in the present day Slovenian territory and will thus also enrich the field of European legal history. The survey of the general evidence on reception is followed by the presentation of recent significant discoveries in the field of inheritance and criminal law. The reception of inheritance law for both testamentary and intestate succession in littoral communities reached its peak in the last quarter of the 14th century. Reception in the continental part of Slovenia was slower and more graduate. It seems that reception in these regions lagged behind other fields of civil law.
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The author reports on the insufficiently known handbook Pratica criminale pei cancelieri, which was written in the mid XVII century in Venice by Croatian lawyer and scholar Jerolim Mičelović – Michieli. There are indications that the work influenced criminal legal practice to a certain extent, and that it contributed to alleviate the severity of the inquisitorial procedure and criminal system, at least in some parts of the Venetian Dominium. Pratica criminale pei cancelieri is the subject of a research project being implemented at the Faculty of Law in Split, with the the task to explore in more details that estimation. Pratica criminale pei cancelieri is basically a theoretical text, but it is written in a dialogue form, and it probably had influenced future officials in some parts of the Venetian Dominium. The author launches some hypothesis considering that texts and its impact in legal practice, with the goal to provoke further discussion.
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Serbian word ruka literally means hand, i.e. part of the human arm beyond the wrist. The word could be found in its basic meaning in the Law Code of Stefan Dušan, in the articles ordering the cutting off of hands, as a corporal punishment for different crimes. But, in some charters issued before the Code, ruka means a guarantor when the first trial fails to reach a decision, in which case recourse was had to compurgators on oath.
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The purpose of the article is to examine the meaning of habeas corpus in the age of the war on terror and the detention camps at Guantanamo Bay. Since the war on terror was declared in 2001, the writ has been invoked from quarters not normally considered within the federal courts’ domain. In this article, I set out to do two things: first, I provide an overview of the writ’s history in the United States, and explain its connection to federalism and unlawful executive detention. I then set out to bridge the two meanings of habeas corpus. Second, then, I examine the cases that came out of Guantanamo Bay, and explain their connection to the writ’s true meaning. In conclusion, I find that there is no discrepancy between habeas as a tool of liberty for the guilty and for the detained.
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Решењем Општинског суда у Новом Саду П. бр. 6274/2005 од 30. септембра 2005. године одређене су привремене мере заштите од насиља у породици, па је туженом наложено да се одмах исели из стана који се налази у Новом Саду, у улици К. бр. 11, забрањено му је да након исељења из стана даље у њега улази, као и у постор око њега, забрањено му је да се тужиљи приближава на удаљености од 100 метара, као и свако даље узнемиравање које је на њу усмерено, а трајање мера одређено је до 18. октобра 2005. године.
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