English for Lawyers 2

1. English for Lawyers 2 Lecturer: Miljen Matijašević e-mail: miljen.matijasevic@gmail.com Tue, 11:30-12:30, G10, room 6 Session 3

2. Today’s session: • Revision of the last session • The Constitution of the Republic of Croatia • TheCroatianJudiciary

3. Revision of the last session Roman Civil Procedure

4. Revision of the last session • What were the two stages of the Roman civil procedure? • What was the point of the first stage and who made the decisions? • What did the proctor's formula include? • What was the procedural contract? • What changes occurred in later empire? • Who spoke on behalf of the parties? • Where did court procedures take place in Ancient Rome?

5. The Constitution of the Republic of Croatia Unit 12

6. What is a constitution? • the supreme legal act, to which legislation and other regulations must conform • the basic principles and laws of a nation, state, or social group that determine the powers and duties of the government and guarantee certain rights to the people in it • a written instrument embodying the rules of a political or social organization

7. Importanceofconstitutions • Laysdownthekeyprinciples on which a society, politicaland legal system are built • Setsouttheorganisationofgovernment • Guaranteesrightsandfreedomsofitscitizens • Strategicpoliticalactof a state andof a people • Legitimizes a democratic state beforetheinternationalcommunity • Facilitatesstability

8. Typesofconstitution federal (multilayered) * written * rigid unitary * unwritten * flexible

9. The Constitution of the Republic of Croatia • Promulgated on 22 December 1990, amended in 1997, 2000, 2001 and 2010 • Contains the following sections: • Historical foundations • Basic provisions • Protection of human rights and fundamental freedoms • Organization of government • The Constitutional Court of the Republic of Croatia • Local and regional self-government • International relations • Amending the Constitution • Final provisions

10. The Constitution of the RC • Historical foundations • Outlines the history of the Croatian state, i.e. the political idea of Croatia as an independent state from the 7th century onwards • Draws upon the legacy of the rejection of communism and the political changes in the late 1980s and of the Homeland War “Respecting the will of the Croatian nation and all citizens, resolutely expressed in the free elections, the Republic of Croatia is hereby founded and shall develop as a sovereign and democratic state in which equality, freedoms and human rights are guaranteed and ensured, and their economic and cultural progress and social welfare promoted. “

11. The Constitution of the RC • Basic provisions • Define the Republic of Croatia as a unitary and indivisible, sovereign democratic and social state • Lay down the most fundamental features of the state: organisation of government, democratic principles, separation of powers, political parties, armed forces, the national flag, coat of arms, anthem, language and script, and the capital city

12. The Constitution of the RC • Protection of human rights and fundamental freedoms • Set out the fundamental rights and freedoms of Croatian citizens • Transpose the provisions of the UN Convention of Human Rights • equality before the law, presumption of innocence, right to a fair trial, right to appeal court and administrative decisions, etc.

13. The Constitution of the RC • Protection of human rights and fundamental freedoms • the right to life (prohibits the death penalty), freedom, freedom of movement, private life, communication, religion, beliefs, etc. • economic and social rights (work, property, social security, strike, family relations, education, etc.)

14. The Constitution of the RC • Organization of government • These provisions lay down the organisation, rights, duties and powers of: • the Croatian Parliament, • the President of the Republic of Croatia, • the Government of the Republic of Croatia, • the Judiciary, and • the State Attorney’s Office

15. The Constitution of the RC • The Constitutional Court of the RC • Consists of 13 judges, appointed by the Croatian Parliament for an 8-year mandate • Selected from the ranks of reputable jurists, judges, state attorneys and attorneys • Not an actual court within the RC court system

16. The Constitution of the RC • The Constitutional Court of the RC • The Court’s main tasks are as follows: • to decide on the conformity of laws with the Constitution, and of other regulations with the law and the Constitution • to decide on constitutional complaints against individual court or administrative decisions (e.g. If the violate human rights and fundamental freedoms, etc.) • to decide on jurisdictional disputes between the 3 branches of government • to decide on the impeachment of the President of the RC • to supervise the constitutionality and legality of elections and referenda

17. The Constitution of the RC • Local and regional self-government • This section regulates the right to local and regional self-government, the division into local administrative units (counties, municipalities, cities), local elections • Lays down the scope of competence of local self-government units, such as the organization of housing and urban planning, public utilities, child care, social welfare, primary health services, education and elementary schools, culture, physical education and sports, etc.

18. The Constitution of the RC • International relations • Concerns the areas of international agreements and association and secession • IA – regulates competence over and the ratification of international agreements, according to their content • Association and secession – regulates the procedure of acceding to alliances with other states – who can initiate the procedure and the number of votes in Parliament, i.e. on the referendum are necessary for such a decision to be passed

19. The Constitution of the RC • Amending the Constitution • This section regulates the procedure of amending the Constitution • Amendments may be proposed by one fifth of representatives in the CP, the President and the Government of the RC • The decision to amend must be approved by the majority of representatives • Amendments may be adopted only if a two-thirds majority of all representatives vote in favour

20. The Constitution of the RC • Final provisions • These provisions rescind the former House of the Counties of the Croatian Parliament and confers to the CP the obligation to enact a Constitutional Act implementing the Constitution

21. The Constitution of the Republic of Croatia Amendmentsadoptedin 2010 • extraditionofCroatiannationalswanted for crimes to foreigncountries • EuropeanArrestWarrant • amendedcriteria for referenda on accession to politicalalliances • courtsauthorised to enforce EU law • statute oflimitations for crimesofwarprofiteeringandcrimescommittedintheprivatisationprocessremoved • independenceofthejudiciarystrengthened • Croatiannationalsresidingoutsidethe RC willvoteonly for 3 representativesintheCroatianParliamentreserved for them • etc.

22. From the Constitution of the RC • Translate thefollowingexcerpts from theConstitutionofthe RC

23. TheConstitutionofthe RC Article 1The Republic of Croatia is a unitary and indivisible democratic welfare state.Power in the Republic of Croatia derives from the people and rests with the people as a community of free and equal citizens.The people exercise this power through the election of representatives and through direct decision-making.

24. TheConstitutionofthe RC Article 4In the Republic of Croatia government shall be organized on the principle of separation of powers into the legislative, executive and judicial branches, but also limited by the constitutionally-guaranteed right to local and regional self-government.The principle of separation of powers encompasses forms of mutual cooperation and reciprocal checks and balances as stipulated by the Constitution and law.

25. TheConstitutionofthe RC Article 5In the Republic of Croatia, laws shall comply with the Constitution. Other regulations shall comply with the Constitution and law.All persons shall be obliged to abide by the Constitution and law and respect the legal order of the Republic of Croatia.

26. Judicial Power intheRepublicof Croatia Unit 13

27. The Court Network (RC)

28. The Ministry of Justice • Mainadministrative body for the judiciary • Competent for judicial administration • Its tasks include: • Drawing up legislative proposals pertaining to the organisation, jurisdiction and composition of courts, and to court procedures • Provision of professional training for judges, staff and other employees in the judiciary (Judicial Academy) • Administration in terms of finance and material conditions for the work of courts • Collecting and processing statistical data on the work of courts • Handling complaints on the work of courts, particularly pertaining to lengthy trials and treatment of clients by judicial staff • Supervision of courts’ finances

29. The Judiciary of the RC • The organisation of the Croatian judiciary and the jurisdiction of courts are laid down in: • the Constitution of the Republic of Croatia,and • the Courts Act 2005

30. The Supreme Court of the RC

31. The Supreme Court of the RC • The Supreme Court is headed by the President of the Supreme Court • It is divided into: • Criminal Division (competence over cases in criminal and misdemanour law matters and certain disciplinary cases pertaining to attorneys and notaries public) • Civil Division (competence over cases in civil, administrative and commercial law)

32. The Supreme Court of the RC • The Supreme Court decides on extraordinary legal remedies and regular legal remedies in certain cases • It ensures uniform application of the law and equality before the law • Decides in issues of conflict of jurisdiction

33. The Supreme Court of the RC Supreme Court judges are appointed for a termending at the age of 70 There are currently 43 Supreme Court judges

34. Specializedcourts: misdemeanourcourts, commercialcourts, administrativecourts, theHighMisdemeanour Court, theHighCommercial Court, theHighAdministrative Court The Judiciary of the RC Generaljurisdiction courts: • municipal courts • county courts, • the Supreme Court

35. The Judiciary of the RC • Misdemeanourandmunicipalcourtshavejurisdictionover one or more municipalities • Countyandcommercialcourtshavejurisdictionover one or more counties • There are fouradministrativecourtsinthefour major Croatiancities • TheHighMisdemeanour Court, theHighCommercialCourt, andtheAdministrativeCourthavejurisdictionovertheentireRepublicof Croatia

36. Jurisdiction of courts in the RC • The lower courts (municipal, misdemeanour and commercial) are first instance courts • County courts and the high courts are second instance courts • Theydeal with appeals to first instance decisions

37. Jurisdiction of courts in the RC • County courts also have a first instance criminal division trying cases of more severe criminal offences (punishable by imprisonment in the duration of more than 10 years) • Larger municipal courts have civil and criminal divisions, while in smaller ones judges often do not have the opportunity to specialize

38. Jurisdiction of courts in the RC • Municipalcourtsalsoconduct: non-contentiouslitigation (izvanparnični postupci), enforcement (ovrha), landregistrymatters (zemljišnoknjižni predmeti) • Commercialcourts: settingupanddissolutionofcompanies, keeping a registerofcompanies • Administrativecourts: dealwithappealsagainstadminstrativeacts (administrativedisputes)

39. Judicial appointments • Judicial appointments are conducted by the State Judicial Council • It consists of 11 members elected from the ranks of notable judges, attorneys, and university professors of law • The majority of members of the SJC must be selected from the ranks of judges. • The State Judicial Councilappoints judges and relieves them of duty • It also decides on their disciplinary responsibility

40. Judicial appointments • MANDATORY REQUIREMENTS for judicial office: • a university degree in law • the Bar Exam • years of experience or years in office (if the candidate has held judicial office) • references and proof of expertise • The years of experience vary depending on the type of court where the candidate is applying for office and the kind of experience he/she has previously had (e.g. whether the candidate has worked in the judiciary or in the business sector)

41. Judicial appointments • E.g. for a municipal or misdemeanour court judge: • 2 years in office as an attorney, notary public, university professor or assistant in a legal entity after passing the Bar Exam • 4 years of experience in other legal professions after passing the Bar Exam • E.g. for a Supreme Court judge: • Minimum 15 years in office in the judiciary or as an attorney or notary public, or a university law professor with at least 15 years of experience and the Bar Exam

42. Key vocabulary legal remedy extraordinary legal remedy uniform application of the law conflict of jurisdiction administrative dispute non-contentious litigation enforcement setting up and dissolution of companies register of companies State Judicial Council to appoint (a judge) to hold judicial office to relieve from duty

43. Thank you for your attention!