Ultima ratio karakter krivičnog prava u svetlu krivičnog dela Građenje bez građevinske dozvole (čl. 219a KZ)

Abstract

In this Article, author explained one of basic principles of Criminal law - their ultima ratio character as a part of legitimacy policy. The last resort has been presented as an important method in law-making process, as well as in its application. Thus, both parliament and judicial authorities should start from main purpose of Criminal law, avoiding extensive usage of mechanisms in general and not allowing prevalling influence of punitive populism. These theoretical postulates are presented as a fundament for analysis of criminal offence Construction without a which is prescribed by article 219a of Criminal Code of Serbia. The author showed some imperfections of positive provision such as the attack on lex certa as a part of legal principle through shortcomings of legislative technical regulation; potential misunderstanding of building permit meaning; restitution claim non-use, despite it can bring some economic benefits. Also, it was emphasized that same conduct from Art. 219a CC is (at most) prescribed by secondary law (Planning and Construction Law) as a commercial offence, which can have proceeding impact onne bis in idem principle. The protected object is vague because the property is a little bit far away of administrative procedure which is substantially contained in following provisions. Also, we point to praxis which is created by public authorities.The potential problem with this incrimination can be non efficiency influence on those to whom is addressed. In future, legislator may think about decriminalization of this offence through transforming it in commercial offence or misdemeanor. If it is a big step from sociopolitical aspect, space for improving current norm will be still opened in a legislative technical way.