Serbian Criminal Law Research Articles

Insanity and intoxication in the criminal law of the united states of America: Similarities and differences in relation to the Serbian criminal law

Insanity and intoxication in the criminal law of the united states of America: Similarities and differences in relation to the Serbian criminal law

Primeri iz sudske prakse u starom srpskom pravosuđu

The development of the criminal law started at the time of creation of first states and legal institutions in which the criminal law provisions were codified. The development of the criminal law in Serbia is connected with the creation of medieval Serbian state and first codifications which primarily represented the reception of Byzantine legal institutions. Adoption of Dusan's Code (1349-1354) is a novelty in the development of criminal law in Serbia. This legal document has several copies and the texts are not completely the same. The time of Ottoman's invasion on Balkan brought the dark period in the development of Serbian criminal law. The legal spirit in Serbia was almost dead at this period and Sharia law applied on its territory. The gradual freedom from Ottoman's power and the beginning of state independence were the preconditions for the creation of first legal institutions (Constitution). In the first part of 19th century we may find written examples of first court trials that were ruled by the act of Duke's office. Based on available material collected by the author in the course of writing of monograph under the title 'Revealing and Punishing of Crimes in Serbia' in co-authorship with professor Zivojin Aleksic Ph.D., we will present the original examples of the judgments in Serbia that were passed by the competent public authorities.

Rehabilitation in the criminal law of Serbia

The work is mainly theoretical and deals with the empirical research of existing literature and normative legal acts dealing with the criminal justice institute of rehabilitation. Therefore, the ideal mode that would be fair both to the convict and to the society in which the convict returns has yet to be determined, regarding the legal consequences carried by the imposed criminal sentence. After the required time served for criminal penalties, the convicted person is no longer considered an equal member of society as before. Aside from the social stigma, there are also certain legal consequences regarding the verdict. Legal consequences are consisted of the cessation or prohibition of the acquisition of certain rights. As an institution, the rehabilitation acts in the direction of abolishing the legal consequences of the verdict and creating the fiction of no previous convictions regarding the convicted person. To gain such a fiction is necessary in addition to the abolition of the legal consequences of the conviction that the time served and deleted from criminal records to the person acquired the status of being convicted. All legislation familiar with this institution, including our own, determine the conditions and the procedure needed for its acquisition. The most important conditions for obtaining rehabilitation are the passage of a specific period of time after the release and the conditions of reforming and re-integrating. According to our criminal law, rehabilitation can be assigned by an operation of law, by court or by an act of grace. Legal rehabilitation is the abolition of the legal consequences and the deletion of the conviction from the criminal records which is ex officioinitiated and resolved by the authority responsible for the conduct of criminal records. Legal rehabilitation is subject only to persons convicted of lesser criminal offenses. Judicial rehabilitation may be granted to a convict who has served a prison sentence of up to five years, at his request, and provided that the court finds that all the requirements that the legislator had asked of him are met. Unlike the legislative and judicial rehabilitation, the rehabilitation awarded as an act of mercy consists of two specific features. The first is that, in general, it is not necessary for the convict to fulfill certain conditions for the rehabilitation, and the second is that a person can be rehabilitated for the convictions which are not regulated through legislative or judicial rehabilitation. This primarily refers to the imprisonment of more than five years. Acts of mercy which can be achieved by the rehabilitation are amnesty and pardon. This paper refers to the very concept of rehabilitation and its development in the Serbian criminal law, but also includes the special analytical focus on the existing solutions.

The development of the penal system in Serbian criminal law

The continuous development of the penal system in Serbia is reflected in significant changes within the criminal legislative solutions. The most important legal document of the medieval Serbia, 'Dušan's Code' was characterized by harsh corporal and death punishments taken from the Byzantine law. During the Ottoman period 'Dušan's Code' was no longer in use, and with the beginning of the First Serbian Uprising, the adoption of individual legislations began. The Criminal Code of the Principality of Serbia, adopted in 1860, introduced a novelty of major and minor penalties, including, most importantly, several types of detention. The Criminal Code of the Kingdom of Yugoslavia was adopted in 1929 and it predicted different types of sanctions other than fines. The main feature of the Criminal Code of the Kingdom of Yugoslavia was permanent abolition of the corporal punishment. After the Second World War, the newly formed government adopted new criminal codes and new forms of punishment, which remained unchanged from the Novel in 1959 up until the dissolution of the SFRY. Contemporary criminal legislation of the Republic of Serbia is characterized by the abolition of the death penalty, seizure of property and the introduction of new penalties, which should, instead of short prison sentences, serve as an alternative. Throughout its statehood, from the Middle Ages up until today, Serbia has always had a continuity of the penal system development parallel with its development, primarily in Europe.

The adoption of restorative justice ideas as an example for cursory affairs in the legal sociology: Case of Serbia

The modern agenda of restorative justice has arisen as a critique against the retributive criminal justice. The restorative-justice-movement offers valuable ideas, which can be adopted, rethought and incorporated in any self-aware criminal justice system. Therefore, the fact that there is a raising awareness in many countries for different victim rights and restorative programmes does not by necessity mean that all claims of the restorative-justice-movement are to be accepted and baptized in the near or far future. However, the case of Serbia shows that for some countries the restorative-justice-movement may represent a serious danger: very modern and advanced institutions of criminal justice may be disregarded, while misinterpreted as a barrier to introduction and existence of restorative justice. The purpose of punishment in Serbian criminal law has traditionally been the crime prevention. Therefore the goal of restorative justice advocates in Serbia must not be to plainly transplant the arguments, such as the one that the 'traditional' criminal justice system must be and eventually will be replaced with a restorative one. Differently than in many other countries, the 'traditional' criminal justice system in Serbia is not the retributive but the preventive one, and therefore compatible with basic restorative justice ideas.

Some problems in response of the criminal law to environmental crimes

It is more than three decades since the Serbian criminal law provides direct protection to the environment. On the other hand, it seems that environment today is most the contaminated ever. From the two previous premises we could expect a large number of the environmental criminal cases, but the pre-researches to this paper lead us to the different conclusion. Could we rely on the criminal law and to which extent in the protection of the environment?.

Robbery

The authors analyzed available statistics on robbery and its legal definition in Serbian Criminal Law as well as in some foreign criminal codes. The focus is on serious/qualified cases of this crime known in comparative law and the absence of "armed robbery" in our Criminal Law. Regarding increase and dangerousness of this sort of crime (with use of weapon) modification of existing legal definition (by introducing armed robbery) is considered and recommended.

Possible changes in the legal concept of parole

The article is based on legal analysis of parole in Serbian Criminal Law emphasizing need for reconsideration of existing provisions and possible changes. The lack of supervision, broadly and not precisely defined legal presumptions for parole are criticized, especially from the aspect of noticeable gap between our and foreign concepts of parole. French parole system, recently modernized, is presented as a good model for prospective changes and improvement of our concept of parole.