The purpose of this paper is to examine the scope of the ECtHR’s review of preliminary reference procedure provided for in Article 267 TFEU, insofar as it concerns the right to a fair trial and other procedural safeguards read into substantive rights of the ECHR. In Ullens de Schooten and Rezabek v. Belgium, the ECtHR established the principles of its review under Article 6(1) ECHR in connection to the obligation of the national courts to refer the question for a preliminary ruling. This paper analyses the scope of protection of the right to a fair trial in the context of the national court’s failure to refer a question to the CJEU for a preliminary ruling, in particular in the light of the CJEU’s Cilfit case law and additional obligations imposed on the national courts by the ECtHR that supplement the standards set out in the CJEU’s jurisprudence. The reason behind circumventing the applicability of the right to an effective remedy (Article 13 ECHR) to the preliminary reference procedure is being ellaborated as well, especially with respect to the CJEU’s finding that a request for preliminary ruling does not constitute a mean of redress available to the parties. Furthermore, this paper discusses whether the preliminary reference procedure can be considered as a procedural safeguard read into substantive rights of the ECHR. In connection to the latter, the interrelation between preliminary reference procedure and two principles - the principles of subsidiarity and equivalent protection - is analysed.
本文的目的是研究欧洲人权法院对《欧洲人权公约》第267条规定的初步参考程序的审查范围，因为它涉及公平审判的权利和其他被解读为《欧洲人权公约》实质性权利的程序性保障。在Ullens de Schooten和Rezabek诉比利时案中，欧洲人权法院根据《欧洲人权公约》第6(1)条确立了其审查原则，涉及国家法院将该问题提交初步裁决的义务。本文分析了在国家法院未能将问题提交欧洲法院进行初步裁决的背景下，公平审判权的保护范围，特别是考虑到欧洲法院的Cilfit判例法和欧洲人权法院对国家法院施加的补充欧洲法院判例中规定的标准的额外义务。目前也在阐述回避获得有效补救的权利(《欧洲人权公约》第13条)适用于初步参考程序的原因，特别是关于欧洲法院关于请求初步裁决不构成当事各方可获得的补救手段的结论。此外，本文还讨论了初步参考程序是否可以被视为一种解读为《欧洲人权公约》实质性权利的程序性保障。关于后者，分析了初步参考程序与辅助原则和等效保护原则这两项原则之间的相互关系。
{"title":"PRELIMINARY REFERENCE PROCEDURE AND THE SCOPE OF JUDICIAL REVIEW OF THE EUROPEAN COURT OF HUMAN RIGHTS","authors":"Helena Majić, Ljerka Mintas Hodak","doi":"10.25234/ECLIC/8989","DOIUrl":"https://doi.org/10.25234/ECLIC/8989","url":null,"abstract":"The purpose of this paper is to examine the scope of the ECtHR’s review of preliminary reference procedure provided for in Article 267 TFEU, insofar as it concerns the right to a fair trial and other procedural safeguards read into substantive rights of the ECHR. In Ullens de Schooten and Rezabek v. Belgium, the ECtHR established the principles of its review under Article 6(1) ECHR in connection to the obligation of the national courts to refer the question for a preliminary ruling. This paper analyses the scope of protection of the right to a fair trial in the context of the national court’s failure to refer a question to the CJEU for a preliminary ruling, in particular in the light of the CJEU’s Cilfit case law and additional obligations imposed on the national courts by the ECtHR that supplement the standards set out in the CJEU’s jurisprudence. The reason behind circumventing the applicability of the right to an effective remedy (Article 13 ECHR) to the preliminary reference procedure is being ellaborated as well, especially with respect to the CJEU’s finding that a request for preliminary ruling does not constitute a mean of redress available to the parties. Furthermore, this paper discusses whether the preliminary reference procedure can be considered as a procedural safeguard read into substantive rights of the ECHR. In connection to the latter, the interrelation between preliminary reference procedure and two principles - the principles of subsidiarity and equivalent protection - is analysed.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128079420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The author critically elaborates the jurisdiction of the new Probation Service as regulated within the provisions of the newly enacted Law on Probation in Republic of Macedonia. He states that the Macedonian legislator has omitted to regulate one very important part of the Probation service’s jurisdiction, such as the implementation of the measures for providing the defendant’s presence during the criminal procedure. The author stresses the fact that in one broader European sense, the Probation Services has imminent jurisdiction regarding the proper implementation of these measures, as ordered by the courts. Through this jurisdiction the probation service is serving to the court as Pre-trial service. In order to overcome this situation, author initially examines the connection between these measures and the Probation service and in addition provides specific suggestions for further improvement of Law on Probation provisions’.
{"title":"CAN LAW ON PROBATION IMPROVE THE IMPLEMENTATION OF THE MEASURES FOR PROVIDING THE DEFENDANT’S PRESENCE IN THE CRIMINAL TRIALS IN MACEDONIA?","authors":"Boban Misoski","doi":"10.25234/ECLIC/9012","DOIUrl":"https://doi.org/10.25234/ECLIC/9012","url":null,"abstract":"The author critically elaborates the jurisdiction of the new Probation Service as regulated within the provisions of the newly enacted Law on Probation in Republic of Macedonia. He states that the Macedonian legislator has omitted to regulate one very important part of the Probation service’s jurisdiction, such as the implementation of the measures for providing the defendant’s presence during the criminal procedure. The author stresses the fact that in one broader European sense, the Probation Services has imminent jurisdiction regarding the proper implementation of these measures, as ordered by the courts. Through this jurisdiction the probation service is serving to the court as Pre-trial service. In order to overcome this situation, author initially examines the connection between these measures and the Probation service and in addition provides specific suggestions for further improvement of Law on Probation provisions’.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132811386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Current article takes a closer look at the dialogue between the Strasbourg and the Luxembourg courts on the interpretation of the ne bis in idem principle and analyses how it influenced the (non)acceptance of the possibility to conduct both, criminal and administrative penal proceedings, against the same person for the same acts. It starts with the pre-Zolotukhin jurisprudence of the European Court for Human Rights and analyses how the Luxembourg interpretation of Article 54 CISA had a major influence on the change in the way the Strasbourg court perceived the possibility to conduct both, criminal and administrative penal proceedings, against the same person for the same acts. It further explores how the Luxembourg court followed the way indicated by Zolotukhin and accepted the stance of the Strasbourg court on the possibility of duplication of criminal and administrative penal proceedings against the same person for the same acts under the ne bis in idem protection afforded to individuals by Article 50 of the Charter of Fundamental Rights of the European Union. Finally, it analyses whether the recent shift in the Strasbourg court’s jurisprudence, which was also followed by the Luxembourg court, means that the ne bis in idem principle in European criminal law has, on the question of the duplication of criminal and administrative penal proceedings, basically come to the positions which were dominant in the pre-Zolotukhin jurisprudence.
{"title":"NE BIS IN IDEM IN EUROPEAN CRIMINAL LAW – MOVING IN CIRCLES?","authors":"Zoran Burić","doi":"10.25234/ECLIC/9015","DOIUrl":"https://doi.org/10.25234/ECLIC/9015","url":null,"abstract":"Current article takes a closer look at the dialogue between the Strasbourg and the Luxembourg courts on the interpretation of the ne bis in idem principle and analyses how it influenced the (non)acceptance of the possibility to conduct both, criminal and administrative penal proceedings, against the same person for the same acts. It starts with the pre-Zolotukhin jurisprudence of the European Court for Human Rights and analyses how the Luxembourg interpretation of Article 54 CISA had a major influence on the change in the way the Strasbourg court perceived the possibility to conduct both, criminal and administrative penal proceedings, against the same person for the same acts. It further explores how the Luxembourg court followed the way indicated by Zolotukhin and accepted the stance of the Strasbourg court on the possibility of duplication of criminal and administrative penal proceedings against the same person for the same acts under the ne bis in idem protection afforded to individuals by Article 50 of the Charter of Fundamental Rights of the European Union. Finally, it analyses whether the recent shift in the Strasbourg court’s jurisprudence, which was also followed by the Luxembourg court, means that the ne bis in idem principle in European criminal law has, on the question of the duplication of criminal and administrative penal proceedings, basically come to the positions which were dominant in the pre-Zolotukhin jurisprudence.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129889614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The reformed pension system in the Republic of North Macedonia has created an interest based on three poles: legal, financial and social. Therefore, the paper aims to provide not only overview of the North Macedonian pension legislative, the model of financing of the reformed pension system but also to take into account the social character of the pension system. Following the basic European values and the interception of the EC recommendations that were underline in the last 10 years for North Macedonia, the country remains moderately prepared in this area. The rapidly increased expenditure on pensions and the efforts to improve the legal, institutional and social framework on the North Macedonian pension system became new burden for the Public Pension Fund. Therefore, the sustainability and the efficiency of the contemporary pension system is under question mark. This paper will explore the major challenges and opportunities that were foster by the new pension reforms from the reconstructed pension system. The one-pillared based system (Pay As You Go system– based on principle of generation solidarity,) has become system based on three pillars (fully funded mandatory pension insurance and fully funded voluntary pension insurance). Regarding the legal and financial aspects of the reformed pension system, there will be three areas of research emphasis: delayed transfer of funds from the state pension insurance fund to private funds, the procedures for supervising voluntary pension insurance schemes and the limits on investing in non-domestic securities. These three aspects resulted in a breach of the legislation on the management of deposits in Republic of North Macedonia, and they were not in line with the acquis under Financial Services Chapter that consists mostly of legal arrangements concerning with capital markets, insurance (including individual pension systems) and banking sectors. This is why they found their place in the annual reports (for 2015, 2016 and 2018) of the European Commission on the Republic of North Macedonia in negative connotation. Analysis of the legislation, as well as comparing the legislation with EU recommendation, is expected to answer the question if our country is complying with the recommendations. The paper will be based on a legal, comparative, analytical and synthetic method that will provide a multidisciplinary approach in acquiring knowledge and in delivering results that will be of relevance to all involved stakeholders (future pensioners, pension funds, central and decentralized government).
{"title":"CHALLENGES AND OPPORTUNITIES OF THE MACEDONIAN PENSION SISTEM ACCORDING THE EU RECOMMENDATIONS (SOCIAL, LEGAL AND FINANCIAL ASPECTS)","authors":"Kristina Misheva, Marija Ampovska, B. Todorova","doi":"10.25234/ECLIC/9040","DOIUrl":"https://doi.org/10.25234/ECLIC/9040","url":null,"abstract":"The reformed pension system in the Republic of North Macedonia has created an interest based on three poles: legal, financial and social. Therefore, the paper aims to provide not only overview of the North Macedonian pension legislative, the model of financing of the reformed pension system but also to take into account the social character of the pension system. Following the basic European values and the interception of the EC recommendations that were underline in the last 10 years for North Macedonia, the country remains moderately prepared in this area. The rapidly increased expenditure on pensions and the efforts to improve the legal, institutional and social framework on the North Macedonian pension system became new burden for the Public Pension Fund. Therefore, the sustainability and the efficiency of the contemporary pension system is under question mark. This paper will explore the major challenges and opportunities that were foster by the new pension reforms from the reconstructed pension system. The one-pillared based system (Pay As You Go system– based on principle of generation solidarity,) has become system based on three pillars (fully funded mandatory pension insurance and fully funded voluntary pension insurance). Regarding the legal and financial aspects of the reformed pension system, there will be three areas of research emphasis: delayed transfer of funds from the state pension insurance fund to private funds, the procedures for supervising voluntary pension insurance schemes and the limits on investing in non-domestic securities. These three aspects resulted in a breach of the legislation on the management of deposits in Republic of North Macedonia, and they were not in line with the acquis under Financial Services Chapter that consists mostly of legal arrangements concerning with capital markets, insurance (including individual pension systems) and banking sectors. This is why they found their place in the annual reports (for 2015, 2016 and 2018) of the European Commission on the Republic of North Macedonia in negative connotation. Analysis of the legislation, as well as comparing the legislation with EU recommendation, is expected to answer the question if our country is complying with the recommendations. The paper will be based on a legal, comparative, analytical and synthetic method that will provide a multidisciplinary approach in acquiring knowledge and in delivering results that will be of relevance to all involved stakeholders (future pensioners, pension funds, central and decentralized government).","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132938393","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The European Union has been exposed to very dynamic social changes for the last decade, and the issues of migration, asylum, and the protection of the legal position of foreigners have become some of the most vibrant areas within the EU political agenda, in particular within the activities of the European Parliament. Relatively frequent migration policy changes within national legislation are the result of attempts to harmonize it with the recent EU acquis. In modern Croatian legislation, in accordance with the content of the applicable Aliens Act, there are visible attempts of legal balancing between the two dominant interests: the very extensive protection of social, political, economic, and other rights of immigrants and the security and protection of the national public policy. Nevertheless, understanding the legal position of foreigners in Croatian law demands consideration of various social and political factors and an extensive interpretation of the legal framework that has actively developed throughout history in our area. Taking into account the growing importance of immigration policy for the territory of the Republic of Croatia, the aim of this article is to determine the legal position of foreigners in the domain of private and public law throughout different periods of Croatian legal history and, ultimately, by comparing the results with the contemporary situation, question their continuity and offer some lessons for current immigration problems.
{"title":"LEGAL POSITION OF FOREIGNERS IN CROATIAN HISTORY – PAST LESSONS FOR CURRENT IMMIGRATION PROBLEMS","authors":"Jelena Kasap, Višnja Lachner, Nikol Žiha","doi":"10.25234/ECLIC/8997","DOIUrl":"https://doi.org/10.25234/ECLIC/8997","url":null,"abstract":"The European Union has been exposed to very dynamic social changes for the last decade, and the issues of migration, asylum, and the protection of the legal position of foreigners have become some of the most vibrant areas within the EU political agenda, in particular within the activities of the European Parliament. Relatively frequent migration policy changes within national legislation are the result of attempts to harmonize it with the recent EU acquis. In modern Croatian legislation, in accordance with the content of the applicable Aliens Act, there are visible attempts of legal balancing between the two dominant interests: the very extensive protection of social, political, economic, and other rights of immigrants and the security and protection of the national public policy. Nevertheless, understanding the legal position of foreigners in Croatian law demands consideration of various social and political factors and an extensive interpretation of the legal framework that has actively developed throughout history in our area. Taking into account the growing importance of immigration policy for the territory of the Republic of Croatia, the aim of this article is to determine the legal position of foreigners in the domain of private and public law throughout different periods of Croatian legal history and, ultimately, by comparing the results with the contemporary situation, question their continuity and offer some lessons for current immigration problems.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"157 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133597917","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Republic of Croatia joined the European Union on 1 July 2013 marking the end of a process which started in 2001 with the signing of the Stabilisation and Association Agreement. Membership in the Union brought significant changes in Croatian legal practice, particularly in its case law. Reference-based relationship between national courts and the Court of Justice of the European Union (CJEU) calls for changes in existing perspective. National courts are under an obligation to give full effect to applicable provisions of EU law and, if necessary, to refuse of their own motion application of any conflicting provision of national legislation. Furthermore, the existence of a rule of national law whereby courts against whose decisions there is a judicial remedy are bound on points of law by the rulings of a court superior to them cannot deprive the lower courts of the right provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU) to refer questions on the interpretation of EU law to the CJEU. From the outset, the author will lay down general remarks on the preliminary ruling procedure, on the scope and relevance of Article 267 TFEU and on the national court’s perspective. While discussing the application of EU law in Croatia, the focus will be on the “shift” of powers between legislative and judicial authority arising from direct effects and supremacy of EU law. Namely, the duty of national courts to set aside incompatible national legislation on their own motion amounts to a derogation of existing national legislation. Deciding cases by applying directly applicable EU legislation calls for no prior legislative activity on the side of national legislator. The application of EU law in Croatia also calls for modification of existing judicial hierarchy. Rules of binding decisions of superior courts do not apply as they did since the lower courts still have the right to refer questions of interpretation of EU law to the CJEU whenever in doubt about the correct interpretation of EU law. There is also a matter of possible „bypassing“ of the Constitutional Court (in case of provision of national law that is not only contrary to EU law, but also unconstitutional) that will be addressed. Statistics and summarised analysis of CJEU case law on request for preliminary rulings from Croatia will be given as well as references to subsequent case law of domestic courts. The emphasis will be put on the issues raised so far, namely Article 18 of the Criminal Procedure Act and the case law of Supreme Court of the Republic of Croatia on staying criminal procedure when the request for the preliminary ruling has been made. Also, reference will be made to the existing case law on staying civil procedures when the request for the preliminary ruling has been made.
{"title":"THE REQUEST FOR PRELIMINARY RULING AND PRACTICE IN THE REPUBLIC OF CROATIA","authors":"Marin Mrčela","doi":"10.25234/ECLIC/8990","DOIUrl":"https://doi.org/10.25234/ECLIC/8990","url":null,"abstract":"The Republic of Croatia joined the European Union on 1 July 2013 marking the end of a process which started in 2001 with the signing of the Stabilisation and Association Agreement. Membership in the Union brought significant changes in Croatian legal practice, particularly in its case law. Reference-based relationship between national courts and the Court of Justice of the European Union (CJEU) calls for changes in existing perspective. National courts are under an obligation to give full effect to applicable provisions of EU law and, if necessary, to refuse of their own motion application of any conflicting provision of national legislation. Furthermore, the existence of a rule of national law whereby courts against whose decisions there is a judicial remedy are bound on points of law by the rulings of a court superior to them cannot deprive the lower courts of the right provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU) to refer questions on the interpretation of EU law to the CJEU. From the outset, the author will lay down general remarks on the preliminary ruling procedure, on the scope and relevance of Article 267 TFEU and on the national court’s perspective. While discussing the application of EU law in Croatia, the focus will be on the “shift” of powers between legislative and judicial authority arising from direct effects and supremacy of EU law. Namely, the duty of national courts to set aside incompatible national legislation on their own motion amounts to a derogation of existing national legislation. Deciding cases by applying directly applicable EU legislation calls for no prior legislative activity on the side of national legislator. The application of EU law in Croatia also calls for modification of existing judicial hierarchy. Rules of binding decisions of superior courts do not apply as they did since the lower courts still have the right to refer questions of interpretation of EU law to the CJEU whenever in doubt about the correct interpretation of EU law. There is also a matter of possible „bypassing“ of the Constitutional Court (in case of provision of national law that is not only contrary to EU law, but also unconstitutional) that will be addressed. Statistics and summarised analysis of CJEU case law on request for preliminary rulings from Croatia will be given as well as references to subsequent case law of domestic courts. The emphasis will be put on the issues raised so far, namely Article 18 of the Criminal Procedure Act and the case law of Supreme Court of the Republic of Croatia on staying criminal procedure when the request for the preliminary ruling has been made. Also, reference will be made to the existing case law on staying civil procedures when the request for the preliminary ruling has been made.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"200 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132625376","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The right of a person charged with a criminal offence to appear and take part in a hearing is enshrined in the right to a fair trial in Article 6 of the European Convention on Human Rights and Fundamental Freedoms. A trial in absentia is allowed only exceptionally, and in the member states of the European Union it is traditionally regulated under very different legal regimes. This has been an obstacle to the full implementation of the principle of mutual recognition of final judicial decisions and therefore to efficient judicial cooperation in criminal matters. In order to provide clear common grounds allowing the execution of a European arrest warrant even when the person subject to it was absent at the trial, Framework Decision 2009/299/JHA, amending Framework Decision 2002/584/JHA, defined the conditions under which a decision rendered at such a trial may be used as a ground to refuse the execution of a European arrest warrant. These conditions are the subject of this paper. Besides theoretical and normative analysis, the research includes the case law of the Court of Justice of the European Union, balancing between the efficiency of judicial cooperation and respect for fundamental human rights, as well as defining the notion of “the trial resulting in the decision” and specifying when the person was “summoned in person”, or “by other means actually received official information of the scheduled date and place of that trial”, since the right to take part in the trial may be waived. The research also includes an analysis of Croatian legislation and the jurisprudence of the Supreme Court of the Republic of Croatia in the same matter and an assessment of theimplementation of European legal standards in Croatian law.
{"title":"DECISIONS RENDERED IN ABSENTIA AS A GROUND TO REFUSE THE EXECUTION OF A EUROPEAN ARREST WARRANT: EUROPEAN LEGAL STANDARDS AND IMPLEMENTATION IN CROATIAN LAW","authors":"Elizabeta Ivičević Karas","doi":"10.25234/ECLIC/9011","DOIUrl":"https://doi.org/10.25234/ECLIC/9011","url":null,"abstract":"The right of a person charged with a criminal offence to appear and take part in a hearing is enshrined in the right to a fair trial in Article 6 of the European Convention on Human Rights and Fundamental Freedoms. A trial in absentia is allowed only exceptionally, and in the member states of the European Union it is traditionally regulated under very different legal regimes. This has been an obstacle to the full implementation of the principle of mutual recognition of final judicial decisions and therefore to efficient judicial cooperation in criminal matters. In order to provide clear common grounds allowing the execution of a European arrest warrant even when the person subject to it was absent at the trial, Framework Decision 2009/299/JHA, amending Framework Decision 2002/584/JHA, defined the conditions under which a decision rendered at such a trial may be used as a ground to refuse the execution of a European arrest warrant. These conditions are the subject of this paper. Besides theoretical and normative analysis, the research includes the case law of the Court of Justice of the European Union, balancing between the efficiency of judicial cooperation and respect for fundamental human rights, as well as defining the notion of “the trial resulting in the decision” and specifying when the person was “summoned in person”, or “by other means actually received official information of the scheduled date and place of that trial”, since the right to take part in the trial may be waived. The research also includes an analysis of Croatian legislation and the jurisprudence of the Supreme Court of the Republic of Croatia in the same matter and an assessment of theimplementation of European legal standards in Croatian law.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133481220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the European Union the liability of producers for harm caused by defective products manufactured or imported by them is regulated in Directive 85/374/EEC of 25 July 1985 on the liability for defective products. The purpose of Directive is to lay down a system of producer liability for damage caused by a defect in its product. Crucial is that it sets out a system of strict liability, so that the injured person does not have to show evidence of fault on the part of the producer. The injured person will have to prove the defect, the damage and the causal link between these. However, when it comes to the damage caused by vaccines, in case law the causal link has often been almost impossible to prove because in the scientific literature there are a number of opposing views on the risk of vaccination. Nevertheless, to the facilitation of the victims burden of proof could contribute the judgement of the Court of the European Union according to which a national court may consider that vaccination has led to the disease or damage even when there is no proof based on medical research. But, if there are other serious, specific and consistent evidence, such as the temporal proximity between the vaccination and the occurrence of a disease, the lack of personal and familiar history of that disease, together with the existence of other reported cases of the disease that occurred after such vaccines being received. Still, the Court retains caution by opposing any presumptions and warns that such cases are extremely fact-specific and require careful case-by-case considerations. In this article the author discusses the aforementioned judgement about liability for vaccine injury and its implications in the European Union.
{"title":"VACCINE INJURY - BURDEN OF PROOF OF THE DEFECT AND THE CAUSAL LINK IN THE LIGHT OF THE JUDGMENT IN THE CASE C-621/15","authors":"Katarina Knol Radoja","doi":"10.25234/ECLIC/9002","DOIUrl":"https://doi.org/10.25234/ECLIC/9002","url":null,"abstract":"In the European Union the liability of producers for harm caused by defective products manufactured or imported by them is regulated in Directive 85/374/EEC of 25 July 1985 on the liability for defective products. The purpose of Directive is to lay down a system of producer liability for damage caused by a defect in its product. Crucial is that it sets out a system of strict liability, so that the injured person does not have to show evidence of fault on the part of the producer. The injured person will have to prove the defect, the damage and the causal link between these. However, when it comes to the damage caused by vaccines, in case law the causal link has often been almost impossible to prove because in the scientific literature there are a number of opposing views on the risk of vaccination. Nevertheless, to the facilitation of the victims burden of proof could contribute the judgement of the Court of the European Union according to which a national court may consider that vaccination has led to the disease or damage even when there is no proof based on medical research. But, if there are other serious, specific and consistent evidence, such as the temporal proximity between the vaccination and the occurrence of a disease, the lack of personal and familiar history of that disease, together with the existence of other reported cases of the disease that occurred after such vaccines being received. Still, the Court retains caution by opposing any presumptions and warns that such cases are extremely fact-specific and require careful case-by-case considerations. In this article the author discusses the aforementioned judgement about liability for vaccine injury and its implications in the European Union.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116472650","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper deals with the issue of pre-trial detention of children in criminal proceedings from the aspect of European standards established under the competence of the European Court of Human Rights and the EU law, as well as from the aspect of Croatian criminal procedure law. Authors will first provide a short overview of international documents pertaining to the issue of deprivation of liberty of children. Furthermore, they will analyse the relevant case law of the European Court of Human Rights, especially the recent one. In several cases, ECHR established a violation of Art. 5 because pre-trial detention had not been used as a measure of last resort i.e., domestic courts did not take into account the applicants’ young age when deciding on pretrial detention. Hence, special attention in the paper will be given to the provisions of Directive 2016/800/EU on procedural safeguards for children who are suspects or accused persons in criminal proceedings. Articles 10 to 12 of the Directive emphasise the ultima ratio nature of detention, the need for a periodic judicial review of the decision, the availability of alternative decisions and specific treatment regarding the separation of children from adults, health care, education and family life. The adequacy of the measure of pre-trial detention for children has recently been discussed in the Croatian judicial practice regarding the case of a fourteen-year old child accused of aggravated murder. The issue of national law on pre-trial detention is especially relevant in the context of the need to transpose Directive 2016/800. Consequently, the authors will critically examine the Croatian legislation and practice and their compliance with the European standards on pre-trial detention.
{"title":"PRE-TRIAL DETENTION OF CHILDREN: EUROPEAN STANDARDS AND CROATIAN LAW","authors":"Marija Pleić, I. Radić","doi":"10.25234/ECLIC/9016","DOIUrl":"https://doi.org/10.25234/ECLIC/9016","url":null,"abstract":"This paper deals with the issue of pre-trial detention of children in criminal proceedings from the aspect of European standards established under the competence of the European Court of Human Rights and the EU law, as well as from the aspect of Croatian criminal procedure law. Authors will first provide a short overview of international documents pertaining to the issue of deprivation of liberty of children. Furthermore, they will analyse the relevant case law of the European Court of Human Rights, especially the recent one. In several cases, ECHR established a violation of Art. 5 because pre-trial detention had not been used as a measure of last resort i.e., domestic courts did not take into account the applicants’ young age when deciding on pretrial detention. Hence, special attention in the paper will be given to the provisions of Directive 2016/800/EU on procedural safeguards for children who are suspects or accused persons in criminal proceedings. Articles 10 to 12 of the Directive emphasise the ultima ratio nature of detention, the need for a periodic judicial review of the decision, the availability of alternative decisions and specific treatment regarding the separation of children from adults, health care, education and family life. The adequacy of the measure of pre-trial detention for children has recently been discussed in the Croatian judicial practice regarding the case of a fourteen-year old child accused of aggravated murder. The issue of national law on pre-trial detention is especially relevant in the context of the need to transpose Directive 2016/800. Consequently, the authors will critically examine the Croatian legislation and practice and their compliance with the European standards on pre-trial detention.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122860042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Sunčana Roksandić Vidička, Marta Dragičević Prtenjača
The authors are addressing in the paper the (un)efficiency of the confiscation in Croatia. In order to fully implement confiscation of proceeds of crime, as the measure that guards property rights of the primary owner, is guardian of the principle of justice, and serves the protection of public interest, the authors are proposing three concrete amendments to existing regulation. In addition, the authors explained what protection of property encompasses, having in mind the sui generis character of this measure.
{"title":"DOES THE CRIME PAY OFF – (UN)EFFICIENCY OF CONFISCATION IN CROATIA - NEW PROPOSALS FOR ITS 60TH BIRTHDAY","authors":"Sunčana Roksandić Vidička, Marta Dragičević Prtenjača","doi":"10.25234/ECLIC/9017","DOIUrl":"https://doi.org/10.25234/ECLIC/9017","url":null,"abstract":"The authors are addressing in the paper the (un)efficiency of the confiscation in Croatia. In order to fully implement confiscation of proceeds of crime, as the measure that guards property rights of the primary owner, is guardian of the principle of justice, and serves the protection of public interest, the authors are proposing three concrete amendments to existing regulation. In addition, the authors explained what protection of property encompasses, having in mind the sui generis character of this measure.","PeriodicalId":246552,"journal":{"name":"EU AND MEMBER STATES – LEGAL AND ECONOMIC ISSUES","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130588764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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