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• Editorial Board 2021

CONTENT

• Editorial Board 2021

INCONSISTENT ADJUDICATION – A VIOLATION OF THE RIGHT TO FAIR TRIAL UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTSThe ECtHR does not review decisions of national courts of the States Parties to the European Convention. However, it has developed a pattern in its case law to find a violation of the Convention on the grounds that the fair hearing lacked if there was a case law inconsistency at the level of national jurisdiction. The ECtHR case law was settled in a Grand Chamber case against Turkey in 2011. To find a violation under Article 6 of the Convention the ECtHR requires two tests. Firstly, it must establish the existence of a profound and long-standing inconsistency in the domestic case law, and secondly, the ECtHR rais-es the issue of a mechanism aimed at removing the inconsistency. If the mechanism does not exist, or if it applied ineffective-ly, the ECtHR finds a violation of human rights. The author suggests the ECtHR should revisit its jurisprudence.

• Dragoljub Popović [ Union University Faculty of Law, Belgrade, Serbia; Former judge of the ECtHR ]

CONSTITUTION MAKING 100 YEARS AGO: PRESS ACCORDING TO THE ST. VITUS DAY CONSTITUTIONIn the article, published on the occasion of the 100th anniversary of the enactment of the St. Vitus Day Constitution, the author deals with one of the key institutes of this document – freedom of the press. Based on discussions in the Constitutional Committee and the plenum of the Constituent Assembly, he concludes that the provisions of the St. Vitus Day Constitution on the press were created by the autocratization of certain provisions of the Constitution of Serbia of 1903. The article especially analyzes the restrictions of the press introduced by the transitional orders of the St. Vitus Day Constitution, through circumventing censorship and incrimination of “religious or tribal discord or hatred against the state”.

• Marko Pavlović [ University of Kragujevac Faculty of Law, Serbia ]

LEGAL PRESUMPTION OF FAULT IN THE SERBIAN LAW OF OBLIGATIONSSubjective tort liability, or subjective non-contractual liability, presupposes damage, causation, and fault. All three conditions are to be proven by the injured party, because fault for damage is not presumed – the system of proven fault. Certain legal systems include a rebuttable presumption of fault, which transfers the burden of proof to the tortfeasor – the system of presumed fault. While the system of proven fault certainly prevails, the system of presumed fault is accepted in fewer legislations. The paper gives a historical overview of the application of the system of proven fault as well as an exposition of the solutions in Yugoslav law before and after the adoption of the 1978 Law on Contracts and Torts, followed by a critical analysis of the systems of proven and presumed fault. After summing up their distinct features, in the concluison the author emphasizes the advantages of the system where fault is presumed

• Đorđe Nikolić [ University of Niš, Faculty of Law, Serbia ]

CRYPTOCURRENCIES IN THE ISLAMIC FINANCIAL SYSTEM VIEWED THROUGH THE PRISM OF SHARIAH LAWThe creation of cryptocurrencies marked the beginning of a new era in money evolution. In the cryptocurrency system, governments do not have primacy over monetary flows, but it is in the hands of participants in the cryptocurrency system, which enables the democratization of money. This also raised a number of issues that need to be resolved. Among them, the issues of incorporating cryptocurrencies into monetary policy, accounting, and tax treatment of cryptocurrencies, as well as preventing potential abuses, are especially prominent. On the other hand, Shariah experts deal with cryptocurrencies from the aspect of their Shariah compliance, and on that issue they are divided. This paper analyzes the treatment of money in Islamic teaching and practice, the concept of cryptocurrencies, and the challenges of their practical application, as well as the arguments presented by Shariah experts in support of their positions on the Shariah (non)compliance of cryptocurrencies.

• Ahmedin Lekpek [ State University of Novi Pazar, Department of Economics Sciences, Serbia ]

MOBILE PHONE ENCRYPTION AS AN OBSTACLE IN CRIMINAL INVESTIGATION – REVIEW OF COMPARATIVE SOLUTIONSIn detecting criminal offences, the police increasingly rely on electronic evidence. Due to ubiquitous digitization, data in electronic form with probative potential is found in an increasing number of sources. When the competent authorities need to collect potential electronic evidence from mobile phones, they face several normative and practical challenges. One of the important aggravating factors is the full-disk encryption of the device. Although functions of encryption cannot and must not be neglected in the modern digital environment, it has an obstructive role in criminal investigation. The competent authorities often have the appropriate authority to access the contents of a mobile phone, but they lack the technical ability to gain such access and collect data. After explaining the basic principles of encryption of mobile phones, the author analyzes the possible approaches for gaining access to a device protected by encryption, and indicates the possible legal basis for their application.

• Milana Pisarić [ State University of Novi Pazar, Department of Economics Sciences, Serbia ]

Colander, David, Craig Freedman. 2019. Where Economics Went Wrong: Chicago's Abandonment of Classical Liberalism. Princeton and Oxford: Princeton University Press, 267.

• Boris Begović [ University of Belgrade Faculty of Law, Serbia ]

Reiman, Jeffrey, Paul Leighton. 2017. The Rich Get Richer and the Poor Get Prison – Ideology, Class and Crimi-nal Justice. 11th edition. New York – London: Routledge, 285.

• Mila Đorđević [ University of Belgrade Faculty of Law, Serbia ]

Vuković, Igor. 2021. Krivično pravo: Opšti deo. Beograd: Pravni fakultet Univerziteta u Beogradu, 586.

• Ivana Marković [ University of Belgrade Faculty of Law, Serbia ]

Delić, Nataša. 2021. Krivično pravo: Posebni deo. Beograd: Pravni fakultet Univerziteta u Beogradu, 464.

• Ivana Radisavljević [ University of Belgrade Faculty of Law, Serbia ]

MOMIR B. MILOJEVIĆ (1933–2021)

• Jovica Trkulja [ University of Belgrade Faculty of Law, Serbia ]

STEFAN ANDONOVIĆ (1991‒2021)

• Andreja Katančević [ University of Belgrade Faculty of Law, Serbia ]