The paper analyses Art. 12 of the Convention on the Rights of Persons with Disabilities and its implications for the position of persons with mental disabilities. The new concept of legal capacity contained in Art. 12 should ensure that fundamental human rights of these persons are no longer "a dead letter on paper". However, once the Convention came into force, the implementation of this provision has proved to be problematic for States Parties. Diane Kingston, former Vice-Chairperson of the Committee on the Rights of Persons with Disabilities, best expressed the scale of the problem in October 2015 when she emphasized that no country had until that point fully met the requirements contained in Art. 12. Given that the Convention is a document that prescribes the fundamental human rights, the statement that no national legislation is consistent with its key provision is confusing and worrying. Therefore, a special attention should be paid to Art. 12 and its implementation in practice ; U radu se analizira odredba čl. 12. Konvencije o pravima osoba s invaliditetom te njezin utje- caj na položaj osoba s duševnim smetnjama. Nova koncepcija poslovne sposobnosti sadržana u čl. 12. trebala bi osigurati da temeljna ljudska prava osoba s duševnim smetnjama više ne budu mrtvo slovo na papiru. No, nakon što je Konvencija stupila na snagu, implementacija ove odredbe pokazala se problematičnom za države stranke. O razmjerima problema najbolje govori izjava Diane Kingston, bivše potpredsjednice Odbora za prava osoba s invaliditetom, iz listopada 2015., kako dotad nijedna zemlja nije u potpunosti udovoljila zahtjevima sadržani- ma u čl. 12. S obzirom na to da je Konvencija dokument koji propisuje temeljna ljudska prava, izjava kako nijedno nacionalno zakonodavstvo nije usklađeno s njegovom ključnom odredbom zbunjujuća je i zabrinjavajuća te zahtijeva da se odredbi čl. 12. posveti posebna pozornost.
The main proposition of this paper is that the Croatian legal framework for higher education fails to meet the criteria of the internal market of the EU. In the first part, the author draws a distinction between education as public good and education as service, and explains how EU law affects the regulatory autonomy of the Member States in the area of higher education. In the second part, the author analyses hitherto identified barriers to the exercise of market freedoms created by national legal frameworks of higher education. The third part discusses the Croatian legal framework and tests it against EU standards. The author concludes that deficiencies of Croatian higher education law are partly caused by the ignorance of policy makers and partly by the structural weakness of the negotiating process, where chapters are negotiated independently from one another and focused on formal fulfilment of benchmarks. Adapted from the source document.
Sažetak Financijski interesi Europske unije danas nisu dovoljno zaštićeni, a na prekogranične prijevare povezane s PDV-om otpada velik dio gubitaka u nacionalnim proračunima. Postojećim tijelima Europske unije, Europskom uredu za borbu protiv prijevara (OLAF), Agenciji Europske unije za suradnju u području kaznenog pravosuđa (Eurojust) i Europskom policijskom uredu (Europol) nedostaju potrebna ovlaštenja za provođenje kaznenih istraga i progon počinitelja kaznenih dijela počinjenih na štetu financijskih interesa Europske unije. Stoga su države članice Europske unije zaključile da im je u borbi protiv počinitelja kaznenih djela počinjenih na štetu financijskih interesa Europske unije nužna pojačana suradnja osnivanjem neovisnog i visoko specijaliziranog ureda tužiteljstva, čiji će tužitelji provoditi istrage na usklađen način u svim državama članicama sudionica, te će brzo razmjenjivati informacije i udružiti napore kako bi osigurali koordinirane istrage, te brzo zamrzavanje ili oduzimanje imovine u cilju što učinkovitije zaštite financijskih interesa Europske unije. Integracija Ureda europskog javnog tužitelja (u daljnjem tekstu: EPPO ) u nacionalne pravne sustave država članica sudionica zahtijevat će promjene određenih zakonskih propisa, pa tako i u Republici Hrvatskoj. Stoga će i kaznenopravni sustav Republike Hrvatske morati doživjeti određene prilagodbe i izmjene. Prilagodbe će biti nužne u načinu rada i postupanju državnih odvjetnika ali i drugih sudionika u kaznenom postupku, osobito u prethodnom postupku, u kojem će EPPO putem europskih delegiranih tužitelja obavljati sve radnje i preuzeti prava i obveze državnih odvjetnika. The Role and Position of the European Public Prosecutor in Croatian Preliminary Proceedings The present financial interests of the European Union are not sufficiently protected, and VAT-related cross-border frauds account for extensive losses in national budgets. Existing EU bodies, the European Anti-Fraud Office (OLAF), the European Union's Judicial Cooperation Unit (Eurojust) and the European Union's law enforcement agency (Europol) lack the necessary powers to conduct criminal investigations and prosecute perpetrators of criminal offences committed to the detriment of financial interests of the European Union. To combat the perpetrators of criminal offences committed to the detriment of the European Union's financial interests, the EU Member States recognized the need for enhanced cooperation. Thus, by setting up an independent and highly specialized prosecutor's office, whose prosecutors will conduct investigations in a coordinated manner in all participating Member States, information will be exchanged swiftly, and forces joined to ensure coordinated investigations, rapid seizure and confiscation of assets in order to protect the European Union's financial interests as effectively as possible. The integration of the European Public Prosecutor's Office (hereinafter: EPPO) into the national legal systems of the participating Member States will require changes in their legislation, the Republic of Croatia included. Therefore, the criminal justice system of the Republic of Croatia will have to undergo certain adjustments and changes. How prosecutors and other criminal proceedings participants work and act will need to be adjusted especially in the preliminary proceedings in which EPPO will perform all actions and assume the rights and obligations of the prosecutors through the European Delegated Prosecutors. Keywords: European Public Prosecutor's Office, European prosecutors, European Delegated Prosecutors, the financial interest of the EU, Council Regulation implementing enhanced cooperation on the establishment of the EPPO, PIF Directive. ; Financial interests of the European Union are not sufficiently protected nowadays, and VAT-related cross-border frauds account for much of the losses in national budgets. Existing EU bodies, the European Anti-Fraud Office (OLAF), the European Union's judicial cooperation unit (Eurojust) and the European Union's law enforcement agency (Europol) lack the necessary powers to conduct criminal investigations and prosecute perpetrators of criminal offences committed to the detriment of financial interests of the European Union. Therefore, EU Member States concluded that in order to combat perpetrators of criminal offences committed to the detriment of the European Union's financial interests, enhanced cooperation is needed by setting up an independent and highly specialized prosecutor's office, whose prosecutors will conduct investigations in a coordinated manner in all participating Member States, and swiftly exchange information and join forces to ensure coordinated investigations, rapid seizure and confiscation of assets in order to protect the European Union's financial interests as effectively as possible. The integration of the European Public Prosecutor's Office (hereinafter: EPPO) into the national legal systems of the participating Member States will require changes in certain legislation, including in the Republic of Croatia. Therefore, the criminal justice system of the Republic of Croatia will have to undergo certain adjustments and changes. The manner in which prosecutors and other criminal proceedings participants work and act will need to be adjusted especially in the preliminary proceedings in which EPPO will perform all actions and assume the rights and obligations of the prosecutors through the European Delegated Prosecutors.
The author deals with the background & the types of human rights in the era of globalization & looks into the proposals of their global institutionalization. His assumption is that the increased legal normatization of global legal regimes on the basis of human rights is in the rational interest of the actors of global law. There are five main ideas: the democratization of all states, the global institutionalization of the direct global civil law, the global federal republic, the international legal solutions &, the global law. The global institutionalization of human rights has been beset by various problems & it requires different approaches which should be seen as mutually corrective. The globally oriented weak publics are a kind of a forum in which individual solutions' relevance must be argued. They affect the globally operating strong publics. The author concludes that the demand for global justice remains a normative measure towards which public education & the public will must be oriented for the sake of the legal formulation of human rights. 45 References. Adapted from the source document.
The author claims that classical liberalism solely recognizes the individualist perspective of maximizing individual profit & totally bypasses the issue of solidarity. Only as the consequence of workers' movement & the Marxist critique of the freewheeling market did the welfare state emerge to make up for the lack of solidarity. The welfare state, however, is based on a combination of the opposing principles: freedom & social justice, the state of law & social responsibility, the right to an unfettered individual development & the limitations to individual freedom through welfare institutions. The contradictions & the crisis of the welfare state have resulted in a series of criticisms. Contrary to the liberal & social-democratic critique, the author bases his position on the precepts of a bourgeois society as an ambience of civic solidarity. Such an attitude takes the civic responsibility for granted not only regarding legal & political but also social prerequisites for practicing civic autonomy. Adapted from the source document.
The author claims that classical liberalism solely recognizes the individualist perspective of maximizing individual profit & totally bypasses the issue of solidarity. Only as the consequence of workers' movement & the Marxist critique of the freewheeling market did the welfare state emerge to make up for the lack of solidarity. The welfare state, however, is based on a combination of the opposing principles: freedom & social justice, the state of law & social responsibility, the right to an unfettered individual development & the limitations to individual freedom through welfare institutions. The contradictions & the crisis of the welfare state have resulted in a series of criticisms. Contrary to the liberal & social-democratic critique, the author bases his position on the precepts of a bourgeois society as an ambience of civic solidarity. Such an attitude takes the civic responsibility for granted not only regarding legal & political but also social prerequisites for practicing civic autonomy. Adapted from the source document.
The author outlines constitutional & legal provisions regulating the rights of ethnic minorities in the Republic of Croatia as well as the site-based policy of the protection of minority rights. The major areas in which the Croatian government has been supporting the activities of minority group organizations are publishing, cultural societies, libraries, minority curricula, preservation of the minority cultural heritage, & research projects. Between 1992 & 1997, the government earmarked 22 million DEM for minorities' activities. The author concludes that ethnic minorities in Croatia, despite some political & economic hardships, have enjoyed a high degree of minority rights & freedoms. Adapted from the source document.
In this text, the authors' starting point is that the modern conception of representation, decisively connected with the state as modern type of political order, not only represents a radical cut with regard to pre-modern forms of representation, but is also the result of evolution through which many key elements of the antique and medieval perception of representation were built into the modern perception. This is confirmed by two eminently modern theories of representation: the theory of Hobbes and the theory of Hegel. In both cases, the theories prove to be largely based on the antique and medieval legal-political heritage. With Hobbes, the basis consists primarily of the idea of legal representation, and with Hegel, of the idea of identity representation. Both ideas are gradually developed in civil law and canon law. This part of the text focuses on the part of history of representation which culminated in the perception of representation according to the model of legal representation. For this purpose, the authors first discuss the definition of representation in the Roman period and in early Christianity, and then they investigate how the antique heritage was reinterpreted in medieval civil law and canon law. Adapted from the source document.
Mixed government, which is commonly regarded as a distinctly medieval form of government, is relevant also to contemporary constitutional states. It is the best form of government, since the aristocratic element is a continuous source of virtue, especially of justice, & a check not only on the executive, as the monarchical element which is the seat of political power, & the legislature, as the democratic element which expresses the will of the majority, but also groups & institutions that have the might & will to impose themselves as oligarchies. Mixed government is also the form of government that is practiced by most developed contemporary constitutional states: US, UK, France, Switzerland, Germany, etc. European nobility is the original aristocratic institution, by virtue of the fact that it was a system for the transfer of both virtue & general conditions of life. Three institutions that emerged in the late Middle Ages assumed structures & functions of the nobility. The first is the clergy. When, as a result of the differentiation of feudal society ethical & intellectual virtues of the nobility could no longer maintain general conditions of life, the clergy, by virtue of their abstract knowledge that ranged from philosophy & theology to law & medicine, became a class of new experts in generalities & thereby a new aristocracy. The second modern aristocratic institution is the judiciary, which has a structure & function similar to earlier aristocracies. The task of judges is to establish the highest virtue of constitutionalism. It is justice by law, which regulates general conditions of life in the state & society. What qualifies judges for the task is expertise in the new generality. The expertise includes not only education & experience in law but also impeccable private life & demonstrated professional ethics. The third modern aristocratic institution is the profession, whose most important instance is the legal profession. It shares its structure & function partly with the judiciary & partly with other professions. It seems that modern professions are degenerating. In the key area of data processing, due to rapid changes of technology, professions as systems of the transfer of virtue do not even seem to be possible. Professional aristocracies are replaced increasingly by oligarchies of capitalists & technocrats. Adapted from the source document.
Alternativni načini rješavanja sporova danas su prepoznati kao dobrodošlo sredstvo za ublažavanje međustranačke napetosti, ubrzanja postupka, kao i smanjenja parničnih troškova. Europska je komisija usvojila niz mjera koje predviđaju primjenu određenog oblika izvansudskih načina rješavanja sporova. U Republici Hrvatskoj cjeloviti pravni okvir za nesmetano odvijanje alternativnih načina rješavanja sporova prvi put je izrađen 2003. godine, kada je donesen Zakon o mirenju. Osim tim Zakonom, mirenje, kao postupak koji prethodi parnici, u Republici Hrvatskoj predviđa i niz drugih zakona, a neki od njih propisuju i obvezatnost njegove provedbe. Međutim, iako je postojanje pozitivnih iskustava stranaka postupkom mirenja značajno, programi dobrovoljnog mirenja i dalje pokazuju nisku stopu njegove iskorištenosti. S druge strane, iako obvezno mirenje može biti korisno, prema njemu se iznose i značajne kritike, stoga je cilj ovog rada istražiti u kojim će to slučajevima prethodna provedba postupka mirenja biti obvezatna te može li jedno takvo obvezivanje, s obzirom na svrhu samog postupka mirenja, uopće biti u skladu s pravom na pristup sudu. ; Alternative dispute resolutions are perceived as a useful means for mitigating inter-party tensions, speeding up the procedures and reducing litigation costs. The European Commission has adopted a series of measures aimed at implementation of a particular form of non-judicial means of dispute resolution. Comprehensive legal framework for stable functioning of alternative dispute resolution in the Republic of Croatia was created in 2003 when the new Mediation Act was passed. In addition to this law, dispute resolution as a procedure that precedes the trial is regulated by a number of other laws, some of them stipulating its obligatory enforcement. The rate of the cases solved in voluntary mediation in Croatia is still low. There is no doubt that mandatory mediation may be useful but on the other hand the question arises if rules on mandatory mediation have the capacity to prevent equitable access to justice. The primary aim of this paper is to examine different legal situations in which mediation is mandatory and ratio which stands behind it. The author will also analyse the extent to which rules on mandatory mediation are in accordance with the right of access to court. ; Alternative Weisen der Konfliktlösung sind heute als willkommene Mittel zur Milderung der Animosität zwischen den Parteien, zur Beschleunigung des Verfahrens und Verminderung von Verfahrenskosten erkannt. Europäische Kommission hat eine Reihe von Maßnahmen getroffen, die die Anwendung einer bestimmten Form der außergerichtlichen Lösung von Streitigkeiten anordnen. Zum ersten Mal wurde in der Republik Kroatien ein einheitlicher Rechtsrahmen für ungestörte Entwicklung der alternativen Weisen von Konfliktlösung im Jahr 2003 geschaffen, als das Mediationsgesetz erlassen wurde. Als einem Gerichtsverfahren vorläufendes Prozess wurde die Mediation außer von diesem Gesetz auch durch eine Reihe anderer Gesetze in der Republik Kroatien vorgesehen. In einigen dieser Gesetze wird auch die Verbindlichkeit der Durchführung des Mediationsprozesses geregelt. Obwohl positive Erfahrungen der Parteien in Bezug auf das Mediationsverfahren beträchtlich sind, weist die Analyse von Programmen der freiwilligen Mediation noch immer auf eine niedrige Stufe ihrer Nutzung hin. Andererseits wird die verbindliche Mediation trotz ihrer Nützlichkeit auch heftig kritisiert. Aus diesem Grunde ist das Ziel dieser Arbeit, zu untersuchen, in welchen Fällen die vorläufige Durchführung des Mediationsverfahrens verbindlich sein sollte und ob die Verbindlichkeit mit Rücksicht auf den Zweck des Mediationsprozesses mit dem Recht auf Beitritt zum Gericht überhaupt im Einklang steht.
The author looks into the notion of the rule of law from the functional/logical, & not historical standpoint: he starts from the hypothesis that there is the functional logic of managing social behavior & social developments by means of legal norms. This logic, with some preconditions, creates certain institutions. The recognition of members of a society as free & equal is the fundamental assumption. It means that government agencies have the right of independent action but are at the same time also disempowered. This requires the quality of laws to be evaluated on the basis of rationality & normativity. The second part of the text lists the institutional conditions for the rule of law: division of power, legal restrictions of all government institutions & independent judiciary. A guarantee of basic right must be included in these functional elements. The author thinks that our future is to be marked by social pluralization, the need for security & the concurrent processes of globalization, & individualization. These processes are surely going to affect the institutions of the state of law. 43 References. Adapted from the source document.
Commenting on the article by R. Badinter (1996, this issue), the author contends that experts in international law are not broad-minded regarding the establishment of a state. Most legal experts take for granted the statements of the international judiciary on the existence of certain rules of general international law & consider them validated & indisputable. This fiction has been given support by states, since they uphold only those legal statements that suit their interests. The author analyses the Opinions of the Arbitration Committee on the process of the disintegration & the Criteria for the dissolution of the former Yugoslavia as well as the criteria for the creation of the new states. He considers this precedent as central for international judiciary law. Adapted from the source document.
The author looks at a book with the promising title Law and Revolution, particularly, promising to those prone to think about law strategically. Starting from the main points of the book & of some interpretations of legal history that qualify these points, the author then demonstrates how negligible appear to be the possibilities of strategic action in the renewal & development of Croatian law. Adapted from the source document.