Zbornik Radova Pravnog Fakulteta u Splitu (Nov 2016)
On constitutional and conventional doubts with the Consumer Bankruptcy Actdoes the several year plan to pay off debts in the Consumer Bankruptcy Act represent a violation of the right to trial within a reasonable time?
Abstract
The precedential character of the European Convention law for the protection of human rights and fundamental freedoms (further in the text referred to as: European Convention or ECHR), which through the practice of the European Court of Human Rights (further: European Court or ECtHR) develops like a „living “instrument, leading to every concept of art. 6 requiring an explanation of a hundred pages. In this context ECtHR in its judgements has analysed the so called. „tacit rights“ which are not directly mentioned in the text of the Convention, but are created through the judicature for, exempli causa, bankruptcy (corporative and consumer) procedure. On the other hand, the fact is that bankruptcy represents extra-court adjudication procedure, in extremis, in which time is one of the most significant elements. Time lessens the value of property and the more time passes in a bankruptcy procedure creditors when procedures are concluded will have access to less money while at the same time debtors- consumers will be deprived because they will have less chance for economic-social „rehabilitation“. This paper, analyses two complementary topics which we have, through argumentation, linked to a single whole. That is, in the given context, the authors examine whether the several year duration of the consumer bankruptcy procedure (in some cases up to seven years) the defined Consumer Bankruptcy Act represents a violation of the right to trial within a reasonable time, that is, a violation of the right to resolve civil rights and duties of debtors and creditors within a reasonable time in art. 6 of ECHR and art. 29 of the Constitution of the Republic of Croatia. The complexity of the subject of investigation and set tasks condition the choice of method. So, the methodology used in the investigation includes the study of domestic and foreign literature, appropriate legal regulations as well as the analysis of court practice. In this paper, the practice of the European Court of Human Rights is particularly analysed in the procedures of art. 6 (right to a fair trial) and the Constitutional Court of the Republic of Croatia with art. 29, section 1 of the Constitution of the Republic of Croatia because we presume that knowledge of this could be key to understanding this problem area of work.
