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Positive obligations of the state in criminal proceedings – duty to protect / duty to punish
Pavlović, Zoran
Laslo Gal, Ištvan
Abstract: The sovereign right of the state to punish is exercised through the criminal justice system in order to protect the legal order, based on the principles of legality and fairness. In the introductory part, the paper discusses fairness as an ethical and legal standard of criminal proceedings, along with the demand for equal treatment of the accused and the victim. Special emphasis was placed on the positive obligations of the state not only to punish the perpetrator of the criminal act, but also to actively protect the victim during the entire procedure, especially in cases of violation of her rights, such as disclosure of personal data, invasion of privacy or secondary victimization through "victim blaming". In the second part of the paper, two examples of violations, rather than protection of the rights of victims in criminal proceedings, are presented, along with issues of responsibility for the violations committed. The central part of the paper analyzes the relevant standards of the European Convention on Human Rights, ECtHR judgments, provisions of the RS Constitution and the Code of Criminal Procedure, as well as their application in court practice, in order to establish a fair balance between punishment and protection of human rights. The last example from the ECtHR's practice and the decision from 2025 shows all the weaknesses of the system and issues of non-respect of the state's obligation to protect the victim. In conclusion, the authors point out the need to create a system of protection and a model in which the positive obligations of the state in criminal proceedings will be possible to be realized. Deficiencies in enabling the realization of the state's positive obligations not only in punishment, but also in protection represent violations from Article 13 of the ECHR, but also violations of already established standards.
engleski
2025
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KEYWORDS: positive obligations of the state, The right to punish, Protection of victims' rights, Standards in the actions of state authorities.
10.56461/ZR_25.ShapingJustice.09