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Principle of legality and crime against humanity proceedings in Bosnia and Herzegovina 波斯尼亚-黑塞哥维那的合法性原则和危害人类罪诉讼
Pub Date : 2021-01-01 DOI: 10.5937/crimen2102182s
Olivera Ševo
The paper deals with the principle of legality from the perspective of crime against humanity proceedings in Bosnia and Herzegovina (BiH). During the armed conflict in BiH many war crimes were committed, among all others, a lot of crimes against humanity. In the time when the crimes were committed, a crime against humanity was not prescribed by the in effect criminal code. Despite that fact, criminal courts in BiH convicted numerous offenders for crimes against humanity on the basis of its prescription in international law. That led the author to the question: what was the path of crime against humanity proceedings in BiH? In the first part of the paper, the author gives an overview on the matter of jurisdiction for crime against humanity in BiH and position of principle of legality in the BiH legal system. That part also contains the insight into the main characteristics of the principle of legality's understanding in different legal traditions, but also the insight into this principle understanding in the international (criminal) law. In the second part, the author analyses Court of BiH's judgments in order to find out what was the source of law used by this court for its crime against humanity convictions. Thereafter, the author analyses Constitutional Court of BiH's decisions related to the alleged breach of BH Constitution and ECHR in relation to the principle of legality regarding crime against humanity proceedings. At the end, the paper gives the overview of ECtHR case law related to the crime against humanity proceedings in BiH - Šimšić v. BiH and Maktouf and Damjanović v. BiH cases. In the last part, the author, taking into consideration understanding the principle of legality in BiH legal tradition, presents the main conceptual problems that were raised from the crime against humanity proceedings in BiH.
本文从波斯尼亚-黑塞哥维那(波黑)危害人类罪诉讼的角度探讨合法性原则。在波黑武装冲突期间犯下了许多战争罪,其中包括许多危害人类罪。在犯罪发生时,现行刑法并未规定危害人类罪。尽管如此,波黑的刑事法院根据国际法的规定,判定许多罪犯犯有危害人类罪。这使作者提出了这样一个问题:波黑危害人类罪诉讼的道路是怎样的?本文第一部分概述了波黑危害人类罪的管辖权问题以及合法性原则在波黑法律体系中的地位。该部分还包括对不同法律传统中对合法性原则理解的主要特征的洞察,以及对国际(刑法)法中对这一原则理解的洞察。在第二部分中,作者分析了波黑法院的判决,以找出该法院对危害人类罪的定罪所使用的法律来源。此后,撰文人分析了波黑宪法法院关于违反波黑宪法和欧洲人权公约有关危害人类罪诉讼合法性原则的决定。最后,本文概述了欧洲人权法院与波黑危害人类罪诉讼程序有关的判例法- Šimšić诉波黑案和Maktouf和damjanoviki诉波黑案。最后,笔者从对波黑法律传统中合法性原则的理解出发,提出了波黑危害人类罪诉讼中存在的主要概念问题。
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引用次数: 0
Criminal legal challenges in Republic of Serbia during COVID-19 pandemic COVID-19大流行期间塞尔维亚共和国的刑事法律挑战
Pub Date : 2021-01-01 DOI: 10.5937/crimen2103259d
Ivan Đokić, Dragana Čvorović
The pandemic caused by the spread of the infectious disease COVID-19, which affected the entire planet, caused not only the global health crisis, changing the usual way of life of the majority of the world's population, but also affected almost all areas of the state and social system. The health systems were most affected; however, in addition to them, the effects of measures adopted by national legislators or other competent authorities to eliminate or reduce the risk of spreading the disease have affected, inter alia, economic stability, but also challenged the judicial authorities given that in the new circumstances it was not easy to ensure their normal functioning. This primarily refers to the criminal justice, given the importance of cases and the need for urgent action, since it is necessary to ensure the conduct of trials and the work of all procedural entities in conditions that, at least in one period, implied drastic restrictions on some basic civil and human rights and freedoms. In that context, it is especially important to review the justification and legality of the measures introduced in the Republic of Serbia during the state of emergency with the aim of more or less normal operation of the judicial system in conditions when social life was almost completely paralyzed. In addition, there is the question of what challenges and controversial issues are generally posed before criminal law in a pandemic, as well as the analysis of data on the crime rate and the overall crime situation in the Republic of Serbia in the period since the introduction of the state of emergency and during the pandemic.
由新型冠状病毒病(COVID-19)蔓延引起的全球大流行,影响了整个地球,不仅造成了全球卫生危机,改变了世界大多数人口的日常生活方式,而且影响了国家和社会系统的几乎所有领域。卫生系统受到的影响最大;然而,除此之外,国家立法者或其他主管当局为消除或减少这种疾病传播风险而采取的措施的影响,除其他外,影响了经济稳定,但也对司法当局提出了挑战,因为在新的情况下,要确保司法当局的正常运作并不容易。鉴于案件的重要性和采取紧急行动的必要性,这主要是指刑事司法,因为必须确保审判的进行和所有程序实体的工作至少在一个时期内意味着对某些基本的公民权利和人权及自由的严格限制。在这方面,特别重要的是审查塞尔维亚共和国在紧急状态期间采取的措施的理由和合法性,这些措施的目的是在社会生活几乎完全瘫痪的情况下使司法系统或多或少正常运作。此外,还有一个问题是,在大流行病期间,刑法通常面临哪些挑战和有争议的问题,以及对塞尔维亚共和国自实行紧急状态以来和大流行病期间的犯罪率和总体犯罪情况的数据进行分析。
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引用次数: 0
The influence of criminal career on the manner of perpetrating street robbery 犯罪生涯对街头抢劫行为方式的影响
Pub Date : 2021-01-01 DOI: 10.5937/crimen2102132b
B. Banović, Ž. Braković
Street development is a form of development and content of all elements of a significant criminal offense and was committed against one or more persons, who walked, known or unknown to the executor, performed in public places that should become proposed, parks, public garages, entrances and stairs in residential buildings, etc.). They belong to the more frequent types of robbery, characterized by less sophistication in execution and direct confrontation that determines the quantity of fear suffered, the scope and intensity of the studied consequences. The aim of the research was to examine the influence of the previous experience of the perpetrators of the robbery on the way of choosing the victim, the place of victimization and the presence of other persons who would be in the immediate or close environment of the street robbery victim. The sample consisted of 42 respondents who committed street robbery out of 120 examined perpetrators of the crime of robbery and serious cases of robbery and robbery, who were serving a prison sentence in the penitentiary in Sremska Mitrovica. Data were collected through an anonymous survey. The results show that there will be differences in the approach to victim first choice, place of execution, internal and external presence of others, between executor who have already and those who have no previous experience in development research. The executors of robbery who have already committed this act are not more inclined to type a potential victim, but they would rather decide to immediately commit a street robbery by encountering a victim with whom the "prey" is visually noticeable. When choosing the place where the crime was committed, they are more inclined to emphasize the possibility of safe removal, but they are more inclined to say that when they commit the crime at night, it will still be in a place that is not lit. Experience predisposes them to pay less attention to the external presence of other persons, while perpetrators who commit robbery for the first time give priority to victimization when the victim is alone. Proper understanding of these indicators can contribute to the qualitative improvement of the analysis, which will facilitate our identification of key starting points in the selection of the best solutions for effective intervention, in order to reduce street robberies.
街道开发是一种形式的开发和内容的所有要素的重大刑事犯罪,是对一个或多个人犯下的,谁走,知道或不知道的执行人,在公共场所,应该成为拟议(公园,公共车库,入口和楼梯在住宅楼等)。它们属于较常见的抢劫类型,其特点是执行不那么复杂,直接对抗,这决定了所遭受的恐惧程度、所研究后果的范围和强度。研究的目的是检查抢劫犯以前的经历对选择受害者的方式、受害地点和其他可能在街头抢劫受害者的直接或近距离环境中的人的存在的影响。样本包括在斯雷姆斯卡米特罗维察监狱服刑的120名抢劫和严重抢劫案件的罪犯中的42名犯了街头抢劫的回答者。数据是通过匿名调查收集的。研究结果表明,有开发研究经验的执行人与没有开发研究经验的执行人在被害人的第一选择、执行地点、他人的内部和外部存在等方面存在差异。已经实施这一行为的抢劫犯不会更倾向于输入一个潜在的受害者,但他们宁愿决定立即实施街头抢劫,遇到一个受害者,“猎物”在视觉上是明显的。在选择犯罪地点时,他们更倾向于强调安全撤离的可能性,但他们更倾向于说,当他们在夜间犯罪时,仍然会在没有灯光的地方。经验使他们倾向于不太注意其他人的外部存在,而第一次实施抢劫的犯罪者在受害者独自一人时优先考虑受害。对这些指标的正确理解有助于从质量上改进分析,这将有助于我们确定在选择有效干预的最佳解决办法时的关键起点,以减少街头抢劫。
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引用次数: 0
Violation of labour rights and social security rights: The problems in practice and the need for revision 劳动权利与社会保障权利的侵害:实践中的问题与修正的必要性
Pub Date : 2021-01-01 DOI: 10.5937/crimen2102167s
A. Stevanovic
The aim of the paper is to determine the main characteristics of the crime in question. It was pointed out that this is a criminal norm that provides protection to labor relations in a general way, i.e. workers' rights. Therefore, there are numerous ambiguities in judicial practice, mostly concerning the legal qualification of the violation of labor regulations and issues of proper application of the ne bis in idem principle. The paper specifically points to de lege ferenda legal solutions that would aim to more clearly determine the scope of labor rights that are protected by the relevant criminal norm.
本文的目的是确定所涉犯罪的主要特征。有人指出,这是一项刑事规范,以一般方式保护劳资关系,即工人的权利。因此,在司法实践中存在着许多歧义,主要是关于违反劳动法规的法律资格问题以及一事即止原则的正确适用问题。本文特别指出了法理上的法律解决方案,旨在更明确地确定受相关刑事规范保护的劳工权利的范围。
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引用次数: 0
In rem contra culpam?: Extended asset confiscation in international and Bosnian-Herzegovinian criminal law 对物权罪?:扩大国际和波斯尼亚-黑塞哥维那刑法中的资产没收
Pub Date : 2020-01-01 DOI: 10.5937/crimen2002145d
Darko Datzer, Eldan Mujanović
It comes as no surprise that vast economic benefit is obtained through crime and that all necessary measures need to be taken in order to appropriate those ill-gotten gains. Deprivation of criminal assets assures effective prevention of their use in future criminal activities, simultaneously advancing the principle that crime does not pay. One of the fastest developing forms of deprivation is extended criminal confiscation, which is understood as recovery of property deriving from vague, assumed criminal activity. An important role in shaping the regime of extended criminal confiscation has been played by international and supranational organisations, hence the paper includes the analysis of relevant stipulations in five capital international documents, and, having in mind recent vivid legislative activities in Bosnia and Herzegovina, analysis of material criminal law norms in its four jurisdictions as well. Analysis includes discussion on a) the scope of crimes liable to extended confiscation, b) circumstances that could indicate on the criminal origin of the property, c) forms of procedural safeguards that are granted to confiscation subjects. International legal standards stipulate the option to utilize statutory legal presumptions and automatic reversal of the onus of proof, or circumstantial proof of illicit origin of assets and balanced onus. Both alternatives are present in Bosnia and Herzegovina, although none often used in practice. This unfavourable picture can be argued by inadequate elaboration of certain elements of the construct and, in some jurisdictions, restrictive approach in determining triggering offences. Improvement of normative framework, along with the other practical, organisational and other activities, is essential to fully utilize criminal policy potential this form of confiscation has.
毫不奇怪,通过犯罪获得了巨大的经济利益,需要采取一切必要措施来挪用这些不义之财。剥夺犯罪资产可确保有效防止其用于今后的犯罪活动,同时推进犯罪无利可图的原则。发展最快的剥夺形式之一是扩大刑事没收,它被理解为追回从模糊的、假定的犯罪活动中得来的财产。国际和超国家组织在形成扩大刑事没收制度方面发挥了重要作用,因此本文包括对五个资本国际文件中有关规定的分析,并考虑到波斯尼亚-黑塞哥维那最近生动的立法活动,分析其四个司法管辖区的重大刑法规范。分析包括讨论a)可延长没收的犯罪范围,b)可能表明财产犯罪来源的情况,c)给予没收主体的程序保障形式。国际法律标准规定可选择利用法定法律推定和自动撤销举证责任,或间接证明非法来源的资产和平衡的举证责任。波斯尼亚-黑塞哥维那有这两种选择,尽管在实践中没有一种经常使用。这种不利的情况可以通过对结构的某些要素的阐述不充分以及在某些司法管辖区确定触发犯罪的限制性方法来证明。改进规范框架以及其他实际、组织和其他活动对于充分利用这种没收形式所具有的刑事政策潜力至关重要。
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引用次数: 0
Media, crime and youth 媒体,犯罪和青少年
Pub Date : 2019-01-01 DOI: 10.5937/crimen1902174k
Aleksandar Kvastek
In this paper we have come to some important conclusions regarding the impact of media on young and crime. In the beginning, we have analyzed some principles of operant conditioning and social learning theory which can explain the influence of media on behavior of adolescents. After that is remarked that nowadays reality programs and social networks are especially dangerous in forming young's characters and some recommendations are given in order to improve this state. Regarding the relation between media and crime, it is discussed that moral panic and penal populism are one of the consequences of bad media's policy which is frequently caused by profit motive and inadequate perception of punitive penal policy. Finally, given examples of Je suis Charlie case and notorious story about Werther effect lighted up our explication of the importance of media in a contemporary society and confirmed the hypothesis that the media nowadays have incomprehensible power in forming people's behavior.
在这篇论文中,我们得出了一些关于媒体对年轻人和犯罪的影响的重要结论。首先,我们分析了操作性条件反射原理和社会学习理论可以解释媒体对青少年行为的影响。之后,有人评论说,现在的真人秀节目和社交网络在形成年轻人的性格方面特别危险,并提出了一些建议,以改善这种状态。在媒体与犯罪的关系方面,论述了道德恐慌和刑罚民粹主义是不良媒体政策的后果之一,而不良媒体政策往往是由利益动机和对惩罚性刑罚政策的认识不足造成的。最后,我是查理案和臭名昭著的维特效应的例子照亮了我们对媒体在当代社会重要性的解释,并证实了媒体在塑造人们行为方面具有不可思议的力量的假设。
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引用次数: 0
Violence of young people over parents in Belgrade: Analysis of official data 贝尔格莱德年轻人对父母的暴力:官方数据分析
Pub Date : 2019-01-01 DOI: 10.5937/CRIMEN1901019L
M. Ljubičić
In this paper, we analyzed the violence of youth over parents. Parental victimization is the topic that is not enough revived in foreign, and especially not in domestic scientific literature. When it comes to our country, the focus of domestic researchers on two types of domestic violence is evident. Violence over women and children are considered to be the only relevant and highly troubling type of victimization by family violence. Our paper goals were to describe the characteristics of the perpetrators and victims, the characteristics of violence and family dynamics, and to try to understand the findings from the ecosystem's perspective. The ecosystem theory explains violence by the ontogenic, microsystem, mesosystem and egzosystem factors. We examined two dimensions of the model: ontogenetic, which emphasize individual characteristics, and microsystem - which is focused on factors connected with family system. We used documentary data on parents victimization gathered from the electronic database from Belgrade's Centers for Social Work for the period from 2010. to 2016. The sample consists of 85 files of fathers and mothers who were violated by their children, age 18-14. The data was collected and then statistically processed. The findings indicate that victims are mostly female, living in single-parent families, with poor educational, working and mental health status. It is also indicative that the share of fathers in the total number of victimized parents has a trend of growth. We noticed the differences in the structure of families from which parents come. Mothers mostly live alone with children, and fathers in a two-parent family. We find out that the predominant abusers are sons. The mental health of the perpetrators, regardless of gender, is fragile, and they are existencially dependent on their parents. Most of the parents are victimized by physical or physical and other forms of violence. The type of violence is significantly related to the sex of the abuser and the state of his mental health. Victimization is, as a rule, repeated and in a large number of cases, there is a danger of further progression of violence. Family dynamics is characterized by the absence of boundaries, rules, with parental permissiveness, and powerlessness. High dysfunctionality of family relations can be noted. In summary, the findings provide empirical confirmation of the ecosystem model assumptions.
在本文中,我们分析了青少年对父母的暴力行为。在国外,尤其是在国内的科学文献中,父母受害这个话题并没有得到足够的重视。谈到我国,国内研究者对两种类型的家庭暴力的关注是显而易见的。对妇女和儿童的暴力行为被认为是家庭暴力造成的唯一相关和非常令人不安的伤害类型。我们的论文目标是描述肇事者和受害者的特征,暴力和家庭动态的特征,并试图从生态系统的角度理解研究结果。生态系统理论从个体因素、微系统因素、中系统因素和生态系统因素对暴力进行解释。我们研究了该模型的两个维度:强调个体特征的个体发生和关注与家庭系统相关因素的微系统。我们使用了2010年以来从贝尔格莱德社会工作中心的电子数据库中收集的关于父母受害的记录数据。到2016年。样本包括85份被18-14岁的孩子侵犯的父母档案。收集数据,然后进行统计处理。调查结果表明,受害者大多是女性,生活在单亲家庭,教育、工作和精神健康状况较差。这也表明,父亲在受害父母总数中所占的比例有增长的趋势。我们注意到父母来自不同的家庭结构。母亲大多独自带着孩子生活,父亲则是双亲家庭。我们发现主要的施虐者是儿子。不论性别,施暴者的心理健康都很脆弱,他们的生存依赖于父母。大多数父母都是身体暴力或其他形式暴力的受害者。暴力的类型与施虐者的性别和他的精神健康状况有很大关系。受害通常是反复发生的,在许多情况下,存在暴力进一步发展的危险。家庭动态的特点是没有界限和规则,父母的纵容和无能为力。可以注意到家庭关系的高度功能失调。总之,研究结果为生态系统模型假设提供了实证证实。
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引用次数: 0
Kritički pogled na XX glavu Kaznenog Zakonika 对XX刑法负责人的批判
Pub Date : 2019-01-01 DOI: 10.5937/crimen1901099m
M. Miljković
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引用次数: 0
Olakšavne i otežavne okolnosti u krivičnim delima 刑事犯罪中可靠和困难的情况
Pub Date : 2019-01-01 DOI: 10.5937/crimen1903299j
P. Jovanović
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引用次数: 0
(Ir)reconcilability of life imprisonment and human rights (二)终身监禁与人权的可调和性
Pub Date : 2019-01-01 DOI: 10.5937/crimen1902156i
V. Ilic
Since May 2019, Serbia has joined the majority of European countries which have the sentence of life imprisonment in their criminal justice systems. Despite the refusal of the competent authorities to hold a public hearing on the issue, the introduction of life imprisonment, excluding the possibility of conditional release of convicted persons for certain offenses punishable by this sentence, was met with noticeable interest and activism by representatives of the domestic and international professional public. Particular attention in the paper is devoted to human rights standards relating to life imprisonment, mainly stemming from the case-law of the European Court of Human Rights. The paper analyzes the possibility of application of human rights standards within the current criminal law legislation. At the end of the paper, the author points to possible de lege ferenda directions that could represent an alternative to life imprisonment, considering it a serious challenge for protection of the dignity of convicted persons.
自2019年5月以来,塞尔维亚加入了在其刑事司法系统中判处无期徒刑的大多数欧洲国家的行列。尽管主管当局拒绝就这一问题举行公开听证会,但实行终身监禁,排除了对犯有可受终身监禁处罚的某些罪行的被定罪者有条件释放的可能性,引起了国内和国际专业公众代表的明显兴趣和积极行动。本文件特别注意与终身监禁有关的人权标准,这些标准主要来自欧洲人权法院的判例法。本文分析了人权标准在现行刑法立法中适用的可能性。在文件的最后,发件人指出了可能代表替代终身监禁的法律上的指示,认为这是对保护被定罪者尊严的严重挑战。
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引用次数: 2
期刊
Crimen Beograd
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