Pravni vjesnik

WRITTEN PROCEDURE AND THE RIGHT TO ORAL HEARING IN SMALL CLAIMS DISPUTES

Zvonimir Jelinić — Sat, 21 Dec 2024 00:00:00 +0100

This paper discusses small claims disputes and a significant legal amendment from 2022 establishing that small claims disputes will primarily be handled through a written procedure. The court will only conduct a hearing if it determines that it is necessary to carry out the evidence process or to ensure a fair trial. The paper examines whether this new rule is constructive and how it relates to the fact that small claims disputes are not necessarily trivial or marginal cases within the total number of civil proceedings conducted before Croatian courts. It explores the circumstances that judges should consider when deciding on the method of conducting the procedure and also discusses other aspects and peculiarities of these numerous civil proceedings.

CHILD REPRESENTATION IN CASES BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

Anica Čulo Margaletić, Ivan Šimović — Sat, 21 Dec 2024 00:00:00 +0100

Representation of the child is an integral part of the institution of parental responsibility. Holders of parental responsibility, usually the parents, represent their child equally, jointly and consensually both in everyday life and in administrative and judicial proceedings. However, in certain life situations a conflict between parents may appear (such as separation, divorce, child abduction, partial deprivation of legal capacity etc.), so the question arises as to which one of them should represent the child? Would representation of the child by only one parent disrupt the principle of parental equality as well as the equality of sexes?

In certain life situations a conflict of interests between the parents and the child may appear (because criminal, misdemeanour or family law proceedings for the protection of the rights and welfare of the child have been initiated against one or both parents etc.), and the challenge for the legal system is how to ensure objective and impartial representation of the child and his/her best interests? These are both social and legal problems that will be elaborated through relevant academic sources and recent case law of the European Court of Human Rights.

INSURGENTS RECOGNISED AS BELLIGERENTS OF NON-INTERNATIONAL ARMED CONFLICTS IN TRADITIONAL AND CONTEMPORARY INTERNATIONAL LAW

Rutvica Rusan Novokmet — Sat, 21 Dec 2024 00:00:00 +0100

The focus of traditional international legal regulation of armed conflicts was primarily on international armed conflicts, which resulted in legal lacunae in respect of the limitation of the conduct of the parties to internal armed conflicts before the Geneva Conventions on the Protection of Victims of War and Additional Protocols to these conventions had been adopted. The subject of this paper is the analysis of the important changes brought about by the contemporary international legal framework in respect of the more detailed regulation of non-international armed conflicts. Furthermore, the author assesses that the more concrete limitations of the conduct of the parties to these conflicts have directed the application of the rules of international humanitarian law to the more efficient protection of victims of war. In this context, the relevant provisions of the international legal instruments applicable to non-international armed conflicts are analysed, followed by the consideration of different definitions of non-international armed conflicts and their parties contained in the Geneva Conventions and the Additional Protocol II, as well as by the analysis of the most recent decisions of international courts and tribunals, which have made a significant contribution to the interpretation and development of international law applicable in this kind of armed conflict. Special attention is given to the concept of recognition of insurgents as belligerents. In comparison to traditional international law, this concept has undergone significant transformation in the context of the obligation to apply international humanitarian law. The author concludes that the gradual cessation of the application of this institute, along with the mitigation of differences between international and non-international armed conflicts, has contributed to the awareness of all parties to armed conflicts of the obligatory nature of the relevant rules of international humanitarian law, i.e. of their responsibility for the protection of victims of war, the respect of the principle of humanity, and the demands of public conscience, from the beginning of an armed conflict to its cessation.

POSSIBILITIES OF DESCRIPTIVE AND NORMATIVE USE OF THE CONSTITUTION IN THE MATERIAL SENSE

Luka Brajković — Sat, 21 Dec 2024 00:00:00 +0100

The theory of the constitution in the material sense has occupied the attention of theorists of many disciplines for almost two hundred years. Because of its polemical nature and the difficulty of determining what a material constitution in general is, this theory was also considered somewhat controversial, even undesirable for constitutional theory. This essay, following the trend of the European constitutional theory over the past 10 years, which has again become more active in studying this “dangerous” topic, seeks to explore whether the concept of material constitution has any epistemological value for theoretical and practical considerations of constitutional law. Guided by the theoretical principles of Marco Goldoni, as one of the main leaders of the new wave of interest in the material constitution, this essay applies the "material study of constitutionalism" to the Republic of Croatia. In an effort to be a corrective to formal constitutionalism, the inclusion of the material level in constitutional considerations seeks to contribute to further deepening and better explaining of the constitutional reality. The first part, as a theoretical framework, is focused on the material constitution as understood by Marco Goldoni. The second chapter deals with the material inquiry of selected cases from the Republic of Croatia. There are strong indications that the Constitutional Court of the Republic of Croatia in its decisions normatively used some aspects of the material constitution. In the conclusion, the possibilities and limits of both normative and descriptive use of the constitution in the material sense will be considered.

IS THE RETURN OF THE COMPLETE DEPRIVATION OF LEGAL CAPACITY OF PERSONS WITH DISABILITIES JUSTIFIED?

Aida Babović — Sat, 21 Dec 2024 00:00:00 +0100

The amendment to the Family Law of 2023 governed, among other things, the complete deprivation of legal capacity. It was inspired by the Decision and Ruling of the Constitutional Court of the Republic of Croatia (UI-394/2015 of 18 April 2023) on the repeal of provision 234, paragraph 2 of the Family Law of 2015, which prevented persons from remaining and becoming completely deprived of legal capacity. The paper observes the implications of the reintroduction of complete deprivation of legal capacity in the national family law arrangement in correlation with the existing partial deprivation of legal capacity. Individual analysis of court decisions of the Municipal (Civil) Courts in Zagreb and Rijeka and the County Courts in Zagreb and Pula indicates the necessary proportionality of the scope and content of deprivation of legal capacity and their practical applicability to the legal status and life circumstances of persons with disabilities. For the sake of comparison, the legislative frameworks of Germany, France, and Slovenia on the protection of adults with disabilities have been brought closer to the Croatian with the purpose of their potential reception and materialisation.

In the conclusion of the paper, the assessment, possible solutions and conclusions on the topic of the paper, and projections of its future development are presented with an emphasis on the need to abandon (complete) deprivation of legal capacity in general. In addition, certain de lege ferenda proposals necessary for improving the judicial-procedural and guardianship status of persons with disabilities are presented simultaneously.