This paper analyzes the long process of ratification of the Istanbul Convention in Croatia and its political instrumentalization. The Convention was ratified in 2018, following a strong ...anti-ratification campaign which exemplifies the strengthening of a global pushback against women's rights. The conservative movement behind this campaign, which is still ongoing - with the shifted goal of withdrawing from the Convention through the mechanism of referendum, spread a number of misconceptions about the Convention, based foremost on the narrative that the Convention would impose an undesirable “gender ideology”. The aim of this paper is to shatter these delusions by first deconstructing the notions of gender, gender ideology and gender-based violence, and then by exploring the extent to which gender (identity) already plays a role within Croatian legal system, including through the jurisprudence of the ECtHR. The last part focuses on particular positive novelties the Istanbul Convention will bring to Croatian society.
Autorice u radu analiziraju postojeći pravni i institucionalni okvir za suzbijanje trgovanja ljudima u Republici Hrvatskoj. Iako je Republika Hrvatska započela s izgradnjom pravnog sustava suzbijanja ...trgovanja ljudima 2002. godine, zakonska regulacija ove materije još uvijek je nedostatna, zbog čega su važna pitanja prepuštena protokolima. Autorice upućuju na neadekvatnu pravnu prirodu protokola kojima se ureðuje ova materija te predlažu više mogućih rješenja. Analizirana je i nedavna presuda Europskog suda za ljudska prava u predmetu S. M. protiv Hrvatske, koja jasno ilustrira probleme pri progonu počinitelja. Posljednji dio rada analizira novi Nacionalni plan za suzbijanje trgovanja ljudima te upozorava na očigledne propuste u području mjera i aktivnosti za identifikaciju žrtava, prevenciju trgovanja djecom migrantima te zaštitu žrtava od ponovnog trgovanja ili progona po povratku u zemlju podrijetla.
This article will describe and critically reflect upon the sentencing practices of Croatian courts with respect to war crimes committed during the armed conflict in Croatia in the early 1990s. Over ...the past two and a half decades, more than 3,500 alleged war criminals have been put on trial, with some 600 finally being convicted. Yet many proceedings were initially commenced without sufficient evidence, in absentia and, arguably, with a bias towards ethnic Serbs. This article first seeks to determine whether ethnicity has played a role in prosecuting and sentencing for war crimes and then to identify to what extent sentencing goals and principles, including aggravating and mitigating factors, proclaimed by Croatian courts reflect the extraordinary nature of international crimes. An attempt is made to compare these sentences and principles with sentencing practices at the International Criminal Tribunal for the former Yugoslavia (icty).
U članku se razmatra jedno od najkompleksnijih pravnih pitanja u kontekstu trgovine ljudima – pitanje nekažnjavanja, tj. nepoduzimanja kaznenog progona prema žrtvama trgovine ljudima koje su ...ostvarile obilježja kaznenog djela u svezi sa svojom viktimizacijom, odnosno kao rezultat iste. Zaključci su utemeljeni na sveobuhvatnoj analizi tzv. klauzule o nekažnjavanju u obvezujućim međunarodnim dokumentima (Konvenciji Vijeća Europe, Direktivi EU), međunarodnim smjernicama i modelima (npr. Preporuke Visokog povjerenika UN-a za ljudska prava o ljudskim pravima i trgovanju ljudima), te u poredbenom zakonodavstvu i praksi. Dostupna poredbena praksa država ukazuje na nedostatke postojećih pravnih rješenja te na potrebu da se pitanje nekažnjivosti žrtava trgovine ljudima riješi na nedvosmislen način, bilo kroz uvođenje izričite i precizne odredbe o nekažnjavanju ili kroz uspostavu jasnih instruktivnih kriterija za postupanje u takvim slučajevima. Autori predlažu novi model nekažnjavanja i nepoduzimanja kaznenog progona prema žrtvama trgovine ljudima u RH, s ciljem izbjegavanja dodatne viktimizacije žrtava i u skladu s potrebama svakog konkretnog slučaja. Potreban je višedimenzionalan i fleksibilan pristup na temelju jasnih odredbi materijalnog i procesnog kaznenog prava, ali i smjernica koje će tužiteljima i sucima omogućiti da uspostave prikladnu ravnotežu između temeljnih načela hrvatskog pravnog sustava i prava osoba koje valja prvenstveno promatrati kao žrtve, a ne kao počinitelje.
This article deals with one of the most vexing legal issues in context of trafficking in persons – that of non-punishment of trafficked persons for the offences they have committed in connection with or as a result of being trafficked. The conclusions are based on a comprehensive study of the so-called non-punishment clause in binding international documents (Council of Europe Convention, EU Directive, etc.) and soft law (e.g. UN Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/), as well as on its implementation in comparative law and practice. Scarce (comparative) case law reveals deficiencies in existing framework and the necessity to address the issue of non-punishment of victims of trafficking in unambiguous manner, either through introduction of explicit non-punishment clause or through instructive set of criteria, such are those established for the Crown Prosecution Service in UK. Against this background and taking into account various approaches in comparative law, this article proposes a model for the non-criminalisation of trafficked persons in Croatia. It provides a set of guidelines foremost for the prosecutors and judges in order to help them strike an appropriate balance between fundamental principles of Croatian legal system and rights of people that are essentially victims, and not perpetrators.
This article considers whether and if so, under what conditions, the practice of forced population transfer can be regarded a form of genocide, notwithstanding its formal exclusion from the Genocide ...Convention. This is particularly relevant in the context of the pending genocide case before the International Court of Justice between Croatia and Serbia since both states essentially base their claims on acts of ethnic cleansing. International case law on this matter is far from clear, yet it points to the conclusion that ethnic cleansing may rise to genocide when carried out with genocidal intent. In contrast, Croatian courts seem to have simply equated the intent to ethnically clean a given area with the intent to destroy. Following a brief overview of Croatian case law, this article considers the viability of the pending genocide allegations and whether the Croatian claim and Serbian counter-claim have any prospects of success.
Abstract
At its 18th session held in September 2009, the Congress of the International Association of Penal Law adopted the Resolution on Universal Jurisdiction (RUJ). For the past decade, universal ...jurisdiction has been one of the most debated issues in international criminal law, and the RUJ has been expected to shed valuable light on this controversial subject matter. After setting out the rationale and scope of universal jurisdiction, the RUJ regulates its exercise and subjects it to a number of requirements and limitations. The drafters should be commended for their general support of the idea that states can exercise universal jurisdiction over a limited number of international crimes. However, the RUJ does suffer from a number of weaknesses. Whether it will ultimately serve as a point of reference for state legislators and practitioners therefore remains to be seen.
The paper analyses the concept of ethnic cleansing, and tackles the question whether ethnic cleansing can at the same time refer to genocide. The analysis is rendered difficult by the fact that ...although most legislations follow to the letter the definition of genocide laid down in the Convention on the Prevention and Punishment of the Crime of Genocide, the concept of genocide and the interpretation of its features remains largely disputed. Furthermore, international law lacks an official definition or incrimination of ethnic cleansing, while both terms are often used uncritically for political purposes. The issue of the relationship between ethnic cleansing and genocide is particularly relevant in the context of the Croatian legal system, considering that, unlike international sources, the Croatian Criminal Code extends the concept of genocide to forced removal of population with the special intent to destroy, completely or partially, a national, ethnic, racial or religious group. Despite the fact that, under certain conditions, activities underlying ethnic cleansing may be likened to genocide, it should be noted that genocide is characterised by the intention to destroy, which is not necessarily present with ethnic cleansing. This is why these two terms should not automatically be considered as identical, even though they may overlap in practice. De lege ferenda, explicit incrimination of activities of forced removal of population as genocide should preferably be abandoned in order for the Croatian legislation and court practice to be in line with international standards. Adapted from the source document.
This paper deals with the notion of mens rea and types of culpability in international criminal law with special emphasis on the Permanent International Criminal Court. Unlike the international ad ...hoc tribunals, which have not approached the question of the necessary mental element in a systematic manner, but only in the context of particular crimes and their objective elements, the Rome Statute of the ICC for the first time in international criminal law codifies the standard mental element generally applicable to all the core international crimes. The interpretation of Article 30 of the Rome Statute, however, remains unsettled. This paper analyses the scope and the meaning of this provision from the comparative perspective, in the light of the first decisions of the Pretrial Chambers of the ICC. On the basis of this analysis, it can be concluded that the Rome Statute incriminates only purposeful or knowledgeable conduct, while acting with dolus eventualis or recklessness, unless otherwise specifically provided for, does not constitute the necessary mental element of core international crimes. PUBLICATION ABSTRACT
This article deals with one of the most vexing legal issues in context of trafficking in persons – that of non-punishment of trafficked persons for the offences they have committed in connection with ...or as a result of being trafficked. The conclusions are based on a comprehensive study of the so-called non-punishment clause in binding international documents (Council of Europe Convention, EU Directive, etc.) and soft law (e.g. UN Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/), as well as on its implementation in comparative law and practice. Scarce (comparative) case law reveals deficiencies in existing framework and the necessity to address the issue of non-punishment of victims of trafficking in unambiguous manner, either through introduction of explicit non-punishment clause or through instructive set of criteria, such are those established for the Crown Prosecution Service in UK. Against this background and taking into account various approaches in comparative law, this article proposes a model for the non-criminalisation of trafficked persons in Croatia. It provides a set of guidelines foremost for the prosecutors and judges in order to help them strike an appropriate balance between fundamental principles of Croatian legal system and rights of people that are essentially victims, and not perpetrators.
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