Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2020)
Content of the principle of certainty (lex certa) in light of legal certainty in individual offenses envisaged in the Serbian Criminal Code
Abstract
This paper discusses the issues related to the question of the content and application of the principle of certainty (lex certa) in criminal law. Special attention is given to the lex certa principle as envisaged in recent amendments to the Criminal Code of the Republic of Serbia, particularly regarding the specific application and problems encountered in judicial practice. In particular, the author explains individual crimes and points to some shortcomings of the legislative technique in prescribing a legal norm. In this regard, the author analyzes individual Criminal Code provisions on relevant criminal offenses. Further on, the author emphasizes the importance of proper understanding and interpretation of the existing general clauses. One of the most difficult tasks of legislative technique in criminal law is to define and prescribe the substance of a criminal offense (corpus delicti, the body of crime). The precise and specific definition of distinctive elements of crime is essential in criminal legislation. In case the legal elements of a criminal offence are broadly defined or provided in vague and imprecise terms, there is inobservance of the lex certa principle. In this context, the author elaborates on the distinctive elements of certain criminal offenses, their incrimination, as well as the objective and subjective features of the specific crime, which may give rise to different interpretations and activities in criminal proceedings, ultimately resulting in the inobservance of the lex certa principle. First, the author analyzes the recent amendments to the Serbian Criminal Code in respect of the following criminal offenses: Stalking (Article 138a CC), Sexual harassment (Article 182a CC), and Female genital mutilation (Article 121a CC). Then, the author points out to prospective changes in the national provisions on some criminal offences, which are already envisaged in the Istanbul Convention.
