10 July 2023
The international scientific conference organised by Associate Professor Marta Dragičević Prtenjača was held as a ZOOM meeting on 10 July 2023. The conference was organized as a part of the Central European Professors’ Network, coordinated by the University of Miskolc – Central European Academy and gathered around thirty participants.
The opening ceremony was held by the main organiser of the conference, Associate Professor Marta Dragičević Prtenjača from the University of Zagreb, Faculty of Law, Department of Criminal Law. In her speech she pointed out that one of the conference goals was to exchange opinions, knowledge, experiences and views on this omnipresent topic. Associate Professor Marta Dragičević Prtenjača pointed out that the rule of law served as the bedrock of a just and equitable society, ensuring that all individuals were treated equally, and the principles of fairness, accountability and justice prevailed. It was the framework within which the rights and obligations were defined, disputes were resolved, and institutions were held accountable.
Associate Professor Dragičević Prtenjača pointed out that in the recent times the concept of the rule of law had become increasingly vital as our societies were facing various challenges and transformations, from technological advancements to geopolitical shifts, from the global pandemics to
socioeconomic inequalities. The rule of law played a critical role in navigating these complex and everchanging landscapes.
Associate Professor Dragičević Prtenjača briefly introduced the presenters and welcomed other participants of the conference. She also expressed thanks to the Central European Professors’ Network, coordinated by the University of Miskolc – Central European Academy. She concluded her introductory speech by wishing all participants a pleasant, successful, interesting and fruitful conference and discussions.
After the opening ceremony, Associate Professor Marta Dragičević Prtenjača gave a word to a keynote speaker Professor Zrinka Erent Sunko from the University of Zagreb, Faculty of Law, presenting the topic The Rule of Law as a Built in and „Enriched” Legal-Historical Legacy – from Customs and Old Codes to Sustainable Development. She started by emphasising the fact that the rule of law was something that was always contemporary. Even during the history it was contemporary. From the position of a legal history researcher Professor Erent Sunko mentioned that the rule of law was certain, and in certain and various ways it captured the attention of terrorists. However, not only the terrorists, but also the ordinary people who wanted to discover the secret of good living, which lay in justice and equality. She pointed out that the rule of law existed also before, but its fate was totally different. In ancient times the rule of law was a means of coexistence, peace and maintaining the legality of the order. Today it took the form of fundamental human rights. She emphasised that every part of legal and human society had its own time and rule of law, whatever the law at that time was. Because, when talking about the rule of law, we had to ask ourselves what the law was. Sometimes it was only a custom, sometimes it was an article in family law, or it could be a way of acting. To answer the question what the law was, she quoted Aristotle “The law is wisdom without a desire.” She also pointed out that when talking about the rule of law Aristotle stated the rule of law was above the wish of the people, but there were specific cases or situations where we could not obey the rule of law. Magna Carta was also one of the key documents in which it was stated that the king and his government were not above the law. Professor Erent Sunko concluded that in history we were concerned about justice, injustice, equality, inequality and who had the power over whom. However, today we had more problems with sustainable development, and it was a big challenge for the rule of law. At the end of her speech, she pointed out that there was no society without problems and maybe there will never be. Perhaps slavery still existed. 40 million people were modern slaves, even 152,000,000 children were affected by child labour. She raised some questions: “Do we obey, do we respect the rule of law? Is it a real thing? Can we touch it? Or is it just an ideal?” She concluded with some facts: “152,000,000 children are still working in terrible conditions and 736,000,000 women are experiencing violence.”
Professor Anna-Maria Getoš Kalac from the University of Zagreb, Faculty of Law gave the next presentation on the topic “Efficiency of Justice Systems Across Europe – a Precondition or Reflection of the Rule of Law’. Professor Getoš Kalac started her presentation by a question; “Is efficiency of justice a precondition, or is it merely a reflection of the rule of law?” On the one hand we had the issue that a fair justice system that provided predictable, timely and enforceable judicial decisions contributed to trust and stability, which lay at the very foundation of prosperity in every democratic society. Now, as it had already been nicely said in the previous presentation, having a democracy on paper was not all, and it did
not really solve any of the issues. In the latest assessment of the functioning of judicial systems in 44 European countries, it was particularly emphasised that the efficiency of courts and state attorneys’ offices remained one of the key pillars for preserving the rule of law and a decisive factor in a fair trial as defined by Article 6 of the European Convention on Human Rights. Now, clearly, effective judicial systems enabled citizens as well as businesses to enjoy their social and economic rights and freedoms, while at the same time improving the business climate, facilitating good government, supporting the fight against corruption and building trust in institutions. Professor Getoš Kalac also mentioned an ongoing strike in the judiciary system in Croatia. The strike also provoked a concern that there was a lack of independence of the judiciary and that a clear division of powers had never been fully implemented. She concluded the first part of her presentation by claiming that it was legitimate to question whether efficiency of the justice system was simply a reflection of the rule of law, or of the lack of the rule of law, or in fact an essential precondition for having the rule of law.
In the second part of her presentation, she was dealing with the conceptual and methodological challenge of defining and measuring the deficiency of justice systems. She also mentioned an issue of comparative approaches in researching different levels of efficiency of justice systems across highly diverse normative, social, cultural, historical and economic settings, also through time. Professor Getoš Kalac emphasised that there were two main key terms when doing empirical research on the efficiency of justice systems. One is the clearance rate, and it was the ratio obtained by dividing the number of resolved cases by the number of incoming cases in a given period and expressed as a percentage. The second one was the time it took for a case to be resolved.
She also presented the data which showed that in Croatia the criminal justice system seemed to be far more efficient than the other ones. She thinks that Croatia falls under the category of those new democracies and transitional societies that like copy paste solutions. And then, we wonder why it is not working. The reason is that these solutions are usually not designed for a particular context. Motivation does play an important role, but it is not exclusively related to salary and bonuses, but rather to leadership skills, working conditions, advancement and career opportunities as well as overall transparent workload distribution within and throughout the system. She also presented the World Justice Project and its rule of law index. The Index was without any doubt empirical, it collected some kind of data, it was international, even global and it was comparative because it clearly compared different countries throughout the world. However, the question was, if it was useful. What did it in fact tell us about the rule of law throughout the world, in different countries? How did it contribute to our understanding of normative frameworks and their implementation by country, region, and globally? Professor Getoš Kalac pointed out that it was possible to touch the idea of efficiency and thus the rule of law in an empirical way, in a scientific way and to measure it conceptually and methodologically. However, it was important to notice that the comparative approaches required profound expert knowledge and practical insights into national particularities and data interpretation. Without that, there was no guarantee that what we concluded from certain data was in any way related to what we had been measuring. There was no scientific value of ranking countries justice systems on efficiency or the rule of law scales. This was currently a matter of politicisation and part of an ongoing indexing frenzy. From her point of view, it was much more meaningful and helpful to use qualitative approaches in terms of improving efficiency of justice systems and thereby rule of law. It was also important to notice that there were clear limitations to upgrading the efficiency of justice systems. Efficiency could not soundly be achieved at the cost of justice.
The presentation, which followed, was on Origins of the Contemporary Rule of Law. Assistant Professor Miran Marelja gave Naturalistic Influences on the Principle of Legality and Modern Legal Systems and itfrom the University of Zagreb, Faculty of Law. At the beginning of his presentation, he pointed out that not all societies created laws. Some human societies throughout history managed their members and resolved their disputes without almost any laws. For example, the ancient Egyptian civilization rightfully advanced the thesis that the rule of law was already known in ancient Athens, where it could be found in the customarily accepted idea of equality of citizens before the law. Already Herodotus pointed out the key elements of Athenian democracy, by which he meant equality under the law, selection of magistrates by lot, accountability for officials, and decision making in an assembly. Even at this time, we had an idea that both rich and poor citizens should be treated equally. Classical naturalist scholars examined the connection between the right of man and natural law while promoting the idea of the public good. Since the public good was regarded as the highest value in a community, no one, especially if a person in question had some power, a legislator or a member of the executive or judicial authority, should exercise arbitrary power to act against the public welfare. The scholars of this line of thought emphasised the universal validity of human rights, since these rights were embodied in natural law.
Assistant Professor Marelja pointed out that already in the 13th century, Aquinas combined the natural law theory of the Roman era with the Christian theology. Thus, the voice of reason, equated with conscience, was considered the driving force in regulating the norms of behaviour in human society, and following these internal instructions, man should be guided in his actions. The influence of such ideas affected the members of the school in Salamanca. Following Aquinas, Victoria envisioned a hierarchy of divine, natural and human law. So, if positive, or human law, would deprive a person of his rights, it would not be a right, because the criterion for the validity of positive law is its relation to divine and natural law. He stated that if there were a human law which without any reason took away the rights granted by natural and divine law, it would be inhumane and unreasonable, and therefore would not have the force of law. On the other hand, he pointed out that the right to elect was derived from natural law and for this reason it did not pass away.
He pointed out the absurdity of rulers having supreme and unrestricted power, since their power was not for the purpose of tyranny but of public administration. This idea became a central tenet of early modern political philosophy. In the 18th century, Wolf saw the relationship between a monarch and his subjects as an agreement in which sovereignty was transferred to the ruler when the state was established. But the ruler of a state had no greater right than the one the people wished to transfer to him. Finally, Fatal concluded that government had to respond to the will of the governed, since the public authority was established merely for the common good of the citizens. Assistant Professor Marelja presented the thoughts of Hobbes. He believed that the unbearable state of nature could be amended by the transformation of sovereign power into legal right. For this reason, some modern scholars saw him as a defining influence on Bentham and Austin, both forerunners of legal positivism, who promoted the theory that law was what sovereign made of it. The idea was defended by an argument that most people in human society were incapable of acting in their own best interests, so they needed a monarch as a paternal figure to govern their affairs. Hence, should the rule by law be above the rule of law. The issue was already a central political point of the 16th century England, when the Stewards came to power and started promoting the theory of legal absolutism. Perhaps this was inevitable in England, since they thought common law came from the court, while continental law came from the study.
He concluded that the differentiation between absolutism and liberalism, or between the rule by law and the rule of law was thus a century solved debate on fundamentally different perspectives on the relationship between state and society. Skinner defined the differences between these two concepts in the following way – the former spoke of sovereignty as a property of the people, the latter saw it as a possession of the state.
The next presentation was on the topic Why the Rule of Law (still) Matters for Economic Development? by Meta Ahtik, PhD, from the Bank of Slovenia, Assistant Professor Silvio Traverso from the University of Eastern Piedmont, Italy and Professor Ozren Pilipović from the University of Zagreb, Faculty of Law. Professor Pilipović spoke about the link between the rule of law and economic development. At the beginning, he pointed out that there was also some uncertainty, because the rule of law was significant in economy and in business. The rule of law was a political ideal that all citizens and institutions in a country, state or community were accountable to the same laws, including lawmakers and leaders. Profesor Pilipović asked: “What is the potential of the rule of law for economic development?” Firstly, entrepreneurs and firms in economy were faced with uncertainty. Uncertainty was an economic term which stands for not knowing what the demand for your products was going to be. You did not know what kind of political troubles we might get into. However, if you had a rule of law in the country, you would now what legal system you had, to what legal system you needed to adapt and, finally, you would know what kind of taxes you needed to pay. People would be more ready to invest in the system with low level of uncertainty. Professor Ozren Pilipović gave us a historical perspective on the connection between the rule of law and economic development, too. He mentioned the rule of law in Magna Carta in which the king had a limited power. Other countries that were not a part of the European tradition, such as India, did not manage to develop the protection of property rights. Economists saw the protection of property rights as a fundamental part of the rule of law. He also mentioned that the UN asked the member states to develop the rule of law not only in their domestic countries, but also in international relationships. This would lead to lower costs of transactions, it would allow exclusive economic growth… He concluded that the rule of law was very important in economy, especially in the area of tax law. Everybody should be treated equally. From the perspective of Croatia, there was a lack of rule of law in economy- as some are more equal than others.
Professor Irena Majstorović, University of Zagreb, Faculty of Law, gave a presentation on the topic The Rule of Law in the Family-Law Position of Persons Deprived of Legal Capacity: Is There a Balance Between Autonomy and Protection? At the beginning, she presented fundamental acts regarding the human rights and dignity of persons with disabilities which are significant for the rule of law: Convention on the Rights of Persons with Disabilities (CRPD) and Croatian Family Act (CFA). She also pointed out selected fundamental issues regarding the legal protection of persons with disabilities: equality and tailor- made approach, as well as support and independent decision-making. When talking about equality and tailor-made approach, it is important to mention Article 12 Paragraphs 2 and 4 of the CRPD and how it was implemented in Article 234 of the CFA. Article 234 paragraph 2 of the CFA was deleted to make it impossible for a disabled person (named in the paragraph 1) to be completely deprived of legal capacity. If we thought about a person in coma, it would be possible for him or her to be deprived of legal capacity only partially. If we looked at court decisions, we could conclude that there was an increased number of partial deprivations of legal capacity. However, if we looked for what they were deprived of (entering a marriage, concluding contracts…) we could conclude that it was a complete deprivation of the capacity to enter into legal transactions. The Decision and Decree of the Constitutional court from 8 May 2023 stated that Article 234 paragraph 2 CFA was contrary to the Constitution – the duty of all to protect infirm persons. It would be in force until 31 December 2023. Professor Majstorović is a member of the working group drafting Amendments to the Family Act. The second issue that she mentioned was support and
independent decision-making. Article 12 paragraph 3 CRPD stated that parties should take appropriate measures to provide access by persons with disabilities to the support they might require in exercising their legal capacity. According to Professor Majstorović it was only an illusion in Croatia. Article 233 paragraph 1 CFA Protection of persons with disabilities should, if possible, provide other means and measures before the deprivation of legal capacity. In Croatia, as Professor Majstorović stated, we had a situation that a person was either completely deprived of legal capacity or he or she could do whatever he/she liked. Professor Majstorović presented a concept that we should follow to have a balance between autonomy and protection. First was the departure from paternalistic approach, followed by departure from “normative optimism”, the third step was to combine autonomy and protection, and not to have them as opposite approaches.
The first panel ended with a presentation by Assistant Professor Dijana Gracin, Military Studies, University of Zagreb, who gave a presentation on the Legal Framework on Security Checks of Judicial Officials and Data Protection in the Light of the Rule of Law and Access to Information. She presented the legal framework, 7 pillars dealing with the security checks: Rule of Law Report of the EC (2022); Act on Amendments to the Courts Act; Act on the State Judicial Council; Security Checks Act; The Venice Commission Attitude; The Decision of the Constitutional Court of the 16 May 2022 & The Decision of the Constitutional Court of 7 February 2023; Data Secrecy Act. The important part is the Annual Rule of Law Report to Promote and Safeguard the Rule of Law in the EU, both at the national and European level. The above mentioned Annual Report for 2022 examined, as stated by Assistant Professor Gracin, development related to justice systems in the member states, focusing on their independence, quality, and efficiency. It also examined the anti-corruption frameworks focusing on the effectiveness on national anti-corruption policies and assessing different key areas of action taken by Member States to prevent and fight corruption. Media freedom was also part of the Annual Report for 2022 and it was focusing on core areas, including the independence of media ownership, transparency, and fairness in the allocation of state advertising, the safety of journalists and access to information. The recommendation for Croatia was to reconsider the newly introduced periodic security checks conducted by the National Security Agency on all judges and state attorneys by ensuring their integrity based on other existing mechanisms, taking into account the European standards on judicial independence and autonomy of prosecutors and the opinion of the Venice Commission. Assistant Professor Gracin pointed out that in 2022 Parliament adopted amendments to the Courts Act and the State Attorney’s Office Act empowering the National Security Agency to conduct security checks on all judges and state attorneys. The basic security check should be carried out for 11 types of persons, it could also be carried out for other persons determined by a special law or decree of the Government of the Republic of Croatia. Assistant Professor Gracin concluded that it was important to clearly define the circle of persons subject to security checks (judicial and other officials), to improve the lack of adequate legal framework, to harmonize the existing laws which were unquestionably outdated, to clarify unclassified and publicly available information (access to information), and to strengthen the rule of law on national and international level.
Before the break, there was a fruitful discussion with very interesting questions and answers. Associate Professor Dragičević Prtenjača gave an interesting comment regarding the presentation given by Assistant Professor Gracin. According to her it was interesting to notice that the Croatian president and prime minister were excluded from security checks. Professor Ernt Sunko initiated a discussion on whether morality should be a part of the rule of law and what the relationship between law and natural law was. It was concluded that the first thing about people’s behaviour should be morality. Natural law
existed before law, as law was made by people. Professsor Majstorović pointed out during the discussion that the CFA was tailor-made to secure the rights of the people with disabilities. Associate Professor Roksandić expressed support to amendments to the CFA regarding the people with disabilities. She pointed out that there was a problem regarding the people with mental disabilities, because it was forbidden to do any medical or biomedical research on the people with mental disabilities. Associate Professor Dragičević Prtenjača provoked a discussion regarding the perception of the rule of law and its effects on foreign investments.
The second panel, the criminal law panel, moderated by Profesor Majstorović, started with a presentation by Associate Professor Sunčana Roksandić, University of Zagreb, Faculty of Law, on the topic The Rule of Law Implications: Ecocide and the Croatian Criminal Code in the Context of the EU Directive – Could the Proposal to Amend the Criminal Code Become a Reality? At the beginning she emphasised that the presentation was based on the article co-authored with Marc Engelhart, PhD. They think that time had come to introduce a new criminal offence – ecocide. It was discussed whether ecocide should be qualified as a crime under international criminal law, in national criminal codes, or should ecocide be prosecuted as a crime against humanity. This issue was discussed in the European Parliament’s Resolution of 19 May 2021 on the effects of climate change on human rights and the role of environmental activists in relation to this issue (2020/2134(INI)). It was stated that ecocide should be sanctioned at both international and national level. The first resolution of a European country in favour of the criminalization of ecocide at the international level was the Resolution of the Belgian Parliament (2021). At the same time Belgium supported the initiative of Vanuatu and the Maldives to amend the Statute of the International Criminal Court. The French Parliament adopted the Law on Climate and Resilience, which introduced the concept of ecocide into French criminal law (2021). Some other countries, such as Russia, Ukraine, etc., had ecocide in their national criminal law, Belgium mentioned environmental atrocities committed by some companies, powerful players. All of this was a matter of human security. The matter was expected to be discussed in the EU Parliament. Associate Professor Roksandić also presented the proposal of ecocide in the Croatian Criminal Code. In conclusion, she stated that she thought that Croatia was waiting for the EU directive.
Petra Šprem, PhD, University of Zagreb, Faculty of Law, gave an interesting presentation on the topic The Croatian Prison System at the Margin of the Rule of Law. She focused on criminal justice system as the reflection of the states’ monopoly to use force against citizens. She presented the connection between a prison system and the rule of law. An efficient prison system presented one out of eight factors that made the rule of law in the WJP Rule of Law Index. According to Petra Šprem, the countries with an efficient criminal justice system usually had a higher level of Rule of Law Index (Norway, Finland, Denmark, Sweden). And the other way round, so the lowest rule of law score could be seen in Venezuela, Bolivia, Nicaragua, Myanmar. Imprisonment was the dominant punishment across the world. A strong rule of law needed an effective criminal justice system, and an effective justice system needed prisons that were secured, respectful, effective in combating recidivism. Therefore, as stated by Šprem, there was a strong connection between the rule of law and a prison system. However, prisons were low priority in policy agendas. Prisons reflected wealth and democracy within a society. The prisoners were a marginalised social group just like the children, the sick, the elderly, etc. were a priority. Most of the time societies forgot that efficient prisons meant safer society. The three key challenges of the Croatian prison system were detainees and the presumption of innocence (around 60% of inmates were detainees); inadequate conditions in the Croatian prisons; short term sentences. Petra Šprem concluded that the rule of law was
strongly connected to the efficient criminal justice system. The topic of prison systems and prisoners was neglected. There were still some challenges in the Croatia prison system.
The final presentation at the conference was prepared by Associate Professor Marta Dragičević Prtenjača and Dijana Rizvić, a judge of the Zagreb Municipal Court, and it was given by Associate Professor Marta Dragičević Prtenjača. It was on Strengthening the Rule of Law: Ensuring Justice in the Croatian Juvenile Justice System. The first part of the presentation dealt with the rule of law in general. As stated by Associate Professor Dragičević Pretenjača its essence lay in the principle that every individual, regardless of their age, sex, rase etc. was subjected to a set of fair and just laws that were applied consistently and equally. The rule of law set the foundation for a just society, ensuring that the legal system operated in a transparent, predictable, and accountable manner. The Venice Commission of the Council of Europe (2011) established the essential elements of the rule of law: legality, legal certainty, prohibition of arbitrariness, access to justice, respect for human rights, prohibition of discrimination and ensuring equality before the law. The above mentioned definition of the rule of law was expanded by eight constituent parts of the rule of law. The 2023 EU Rule of Law Report said that Croatia and Poland had a low level of perceived independence. In the judicial sector in Croatia efficiency and quality remained a challenge, leading to longer trial durations. A sign of positive development were some improvements in electronic communication tools in the justice system. It was also important to mention that codes of conduct were adopted for the members of parliament, which was another positive thing. Assistant Professor Dragičević Prtenjača emphasised that a lobbying act was in a parliamentary procedure, which was positive as well. However, media pluralism was classified as high risk in Croatia. Associate Professor Dragičević Prtenjača mentioned international, EU and national framework for juvenile justice systems. She gave an interesting analysis of the rule of law and juvenile justice in Croatia. She presented the four main pillars: prevention efforts to reduce juvenile delinquency; incorporation of restorative justice principles; individualized approach for personalized interventions; and focus on reintegration and aftercare support for successful transition. It was important to notice that in 2019 the right to information was implemented in juvenile criminal proceedings. It was important for juveniles and parents to understand legal language. She also presented descriptive statistics about juvenile delinquency, focusing on the number of convicted, the most common types of criminal offences committed by children, and sanctions. She presented the findings of the Children’s Ombudsman. The judiciary was perceived as not yet child-friendly. The main issue lay in the implementation of legal provisions rather than the legislation itself. Associate Professor Dragičević Prtenjača concluded that the rule of law was a guiding principle of the Croatian juvenile justice system. The Croatian legislation regarding the protection of children’s rights in public law was in accordance with international documents and European legislation. An effective implementation of those rights in practice was crucial to improve the position of children. The main problem lay in the practical implementation of legal provisions. There was a need for prevention programs that could positively influence the children during their formative years.
The conference was concluded with final remarks. The participants were very satisfied with the conference, which gave answers to some open questions and a better overview of the privacy as well as how to report on criminal cases.
Associate Professor Marta Dragičević Prtenjača
