Ključne reči: anonimni porođaj, prava deteta, prava majke, Sud u Strazburu, Srbija Uvod Od druge polovine 20. veka sve je prisutnija ideja prema kojoj konstrukcija ličnog identiteta nije samo privatno pitanje, intimno i psihološko, već ima i socijalnu dimenziju i obuhvata pravo svakog lica da zna svoje poreklo. Zahtev da se sazna lična prošlost nije samo sredstvo za dobijanje određene koristi, statusa, nasledstva, itd, već se može shvatiti i kao cilj: potpuno poznavanje i izgradnja sopstvene ličnosti. U ovom smislu, nečije pravo da ne bude ograničen u poznavanju svog identiteta počinje time da ne sme biti sprečavan da upozna deo sopstvene prošlosti (Gomar, 2003). 1 Ovim se promovišu značajne zajedničke opšte vrednosti, a ne samo individualni interes. Zahtevi za otkrivanjem porekla, treba istaći, ne uključuju nužno uspostavljanje srodstva, kao pravne veze, što je Katedra za građansko pravo, Pravni fakultet Univerziteta u Kragujevcu (Srbija); email: zponjavic@jura.kg.ac.rs. 1 "Naša istorija nije stvorena od strane pojedinaca rođenih od nepoznatih roditelja i umrlih bez dece", napisao je Renan (Gomar, 2003).
The Constitution of the Republic of Serbia explicitly regulates that free legal aid shall be stipulated by the law. In a series of reports on the progress of the Republic of Serbia in the process of joining the EU, there are warnings about the unacceptably low quality level and efficiency of the judiciary, and indications that there is a need to regulate the legal aid system. Finally, this matter was regulated by enacting the Legal Aid Act of the Republic of Serbia, which came into force on 1st October 2019. In addition to the conceptual definition of legal aid, the paper analyzes the right of access to court as a constituent element of the right to a fair trial prescribed in Article 6 of the European Convention on Human Rights, which entails the right to legal aid. The regulation of legal aid at the national level has to meet the standards formulated at the European Union level as well as the standards formulated through the practice of the European Court of Human Rights. In that context, the paper analyzes the regulations and decisions, i.e. the widely recognized and accepted standards. The Legal Aid Act of the Republic of Serbia has been analyzed in the context of meeting these standards, especially in relation to the conditions for granting the right to legal aid and the circle of beneficiaries and providers of certain types of legal aid.
In the case when the parent who does not exercise parental rights does not agree with the change of permanent residence of the child, i.e., doesn’t agree with the child moving abroad with a parent who independently exercises parental rights, courts in Serbia, as a rule, take the position that only because they did not give consent, the parent who does not exercise parental rights should be partially deprived of the parental rights and thus enable the other parent to independently decide on the change of permanent residence. In the theory of family law, this practice has been criticized as unacceptable, therefore there is a need to explore other procedural possibilities in such situations.
The paper analyses the international standards concerning the child`s process rights, the referent comparable legal solutions and the legal system of the Republic of Serbia, especially the possibility for children to take part in the court cases in different process roles. The problems have been recognized which in practice are conditioned by the circumstance that our Family Law does not allow, by its general norm, for the child to be a party in all the process which refer to his / her rights and interests. Although there is a number of situations in which children are explicitly acknowledged the process legitimation, and those where this right can be indirectly concluded, it does not mean that, starting from the international standards, the children`s process rights are accepted and recognized at the highest level. As especially serious, the problem of independent undertaking of process activities by children of certain age and equal understanding capability / capacity, which is particularly analyzed in this paper. In the context of so called evolving children`s capacity to recognize the participation rights as the prerequisite of participation in the case in any role. Thus the specificity of these rights and standards which are established for them on the international level (by obligating but also referring acts) are given the necessary attention. The analysis outcome of the abovementioned problems are the suggestions of changes or amendments to the Family Law by which the court procedures, especially civil ones, were to a great extent adapted for children, and the children`s rights protection has reached a higher level.
The paper analyzes certain important aspects of the procedural position of persons with mental disabilities in the procedures for deprivation of legal capacity. Regardless of the normative framework, both international and national, which largely protects the rights of this sensitive group of people, a significant number of cases before the European Court of Human Rights and decisions in which Contracting States are declared responsible indicate that there is a problem of their procedural position that is principally conditioned by applying (or not applying) the procedural safeguards provided by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or the right to a fair trial. Although this right is guaranteed for all civil and criminal procedures and for all persons, the special features of persons with mental disabilities also determine the particularities in the application of the right to a fair trial in the court procedures in which these persons are involved. Therefore, we could talk about formulated specific standards that essentially elaborate one of the key concepts of the UN Convention on the Rights of Persons with Disabilities - "reasonable adaptation", as well as a direct link to the need for a specific application of the already mentioned Article 6 of the European Convention. The standards that follow from the application of Article 6 are numerous and the analysis of all from the aspect of protecting the rights of persons with mental disabilities is not possible in the paper of this volume, and therefore, special attention was given to the right of these persons to initiate and conduct the procedures for deprivation of legal capacity, personal participation and representation in that procedures.
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