Izvorni znanstveni članak
The Right to a Fair Trial in Civil Cases: New Case Law of The European Court of Human Rights and its Impact on Croatian Law and Practice
Alan Uzelac
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
After more than a decade of application of the European Human Rights Convention, a considerable body of case law of the European Court of Human Rights has accumulated regarding Croatia which became a member of the Convention in 1997. In the jurisprudence of the Strasbourg court, in over 90 percent of all judgments establishing human rights violations, in Croatian cases the most frequently found violations dealt with some of the aspects of the right to a fair trial /word order changed/. This paper deals with the established and recent case law of the European Court of Human Rights regarding fair trial rights, with special emphasis on the significant developments in the past few years. Special attention is given to the following aspects of the right to a fair trial developed in the case law of the Court: the right of access to a court; the right to legal aid and advice; the equality of arms in the proceedings; the right to a fair and public hearing; fair trial rights in evidence taking; the necessity of public pronouncement of judgments; the right to an impartial and independent tribunal established by law; the right to a trial within reasonable time; the need for effective enforcement of judgments and other enforceable documents and the prohibition of arbitrariness in the proceedings. After giving a general survey of fair trial rights, the paper discusses the extent to which these rights are implemented in Croatian law and practice. In addition to analyzing fair trial cases in which the Strasbourg Court found violations, the paper points to several open issues of a structural nature that may raise the question of compatibility with the Convention’s requirements in the future. In particular, the author draws attention to the difficulties arising from the current trends of the use of court counsels (non-judicial assessors in courts) as fact-finders and judgment-drafters in civil litigation, as well as to the potential compatibility issues connected to the complete lack of public hearings in the appeals courts. Furthermore, the author discusses some issues regarding the impartiality and independence of judges, publicity given to trials and public announcements of judgments. As for the most visible and most frequent violations – those regarding the length of proceedings – the author presents the systemic and institutional roots of the problem, analyses the current attempts to deal with the problem and discusses the causes of their relatively modest success. The final part of the paper gives a summary proposal of the reforms that would secure compatibility between current and future requirements of fair trial rights in the long run, addressing in particular the structural problems of the national judiciary.
Ključne riječi
right to a fair trial; European Court of Human Rights; Croatia
Hrčak ID:
48828
URI
Datum izdavanja:
22.2.2010.
Posjeta: 7.062 *