Zbornik, Vol. 32 No. 1, 2011.
Ostalo
VIOLATION OF HUMAN RIGHTS AND BASIC FREEDOM AS A REASON FOR A RETRIAL
Vladimir Boranijašević
; Pravni fakultet Univerziteta u Prištini, Kosovska Mitrovica, SRBIJA
Sažetak
A retrial represents an extraordinary legal remedy that can be lodged against the legally effective decisions. This legal remedy is lodged with the aim to quash irregular court decisions that became legally effective, to repeat a discussion of a disputed matter and for the court to deliver a new, relevant decision.
A party may file a motion for a retrial only in cases explicitly defined by law. Although the legislator did not distinguish grounds upon which a retrial may commence, according to the theory of civil procedure the grounds are divided into certain groups. The first group consists of essential violations of provisions governing the civil proceedings. The second group comprises illegal actions committed by persons participating in civil procedure (criminal offences), while the third group encompasses new facts and new evidences.
The fourth group concerns the violation of human rights and basic freedoms, determined by judgment of the Constitutional Court of the Republic of Serbia upon the constitutional complaint and by judgment of the European Court for Human Rights in Strasbourg.
The author in the article devotes a special attention to aforesaid violations due to the fact that they represent a specific and new ground for a retrial. He points at reasons which led to its implementation in civil proceedings and discusses results achieved on the normative level with respect to goals set with the new legislative solutions. The author stresses legislative inconsistencies, especially these regarding the constitutional appeal and implications of the Constitutional Court judgment for civil proceedings. He also analyses legislative solutions allowing retrial in the Republic Croatia with the aim to single out common provisions and point at normative discrepancies.
Ključne riječi
civil procedure; retrial; human rights and fundamental freedoms; Constitution; European Court for Human Rights; constitutional appeal; constitutional complaint
Hrčak ID:
82244
URI
Datum izdavanja:
1.4.2011.
Posjeta: 3.897 *