Odgovornost države za štetu (pojedinac protiv države: tko će nadvladati?).

The purpose of this paper is to show that the concept of State liability nowadays exists to enable the attainment of two goals: namely, the protection of the individual rights and freedoms, on the one hand, and the proper functioning of the public service on the other hand. Despite the antagonism between those two interests, they can be reconciled. If the State opts to protect the individual rights by permitting actions against it, the State gets in fact a partner who will show the spots of dysfunction within the system. Then the relevant authorities could react timely in removing them. In Croatian legislation there are several acts that provide for the liability of State for damage caused by the civil servants, but there is no comprehensive code that would regulate all aspects of State liability. Therefore, the general regime of Croatian Law on Obligations is applied to all issues not covered by those specific laws, such as the issue of causation and fault. Although Croatian positive law on State liability does not differ too much from the other European states, the case-law of Croatian Supreme Court reveals the opposite. The result of this is that the aggrieved citizen is not entitled to damages, unless the act or omission of the servant is a crime and not merely a tort. Nevertheless, there are improvements. In 2003, Croatia reintroduced the State liability for damages caused by terrorist acts and public demonstrations, military or police acts that previously existed within the Law on Obligations and then were derogated because of the overwhelming actions due to the war. This was a direct consequence of a decision of the European Court for Human Rights. Further on, the case-law of the Croatian Constitutional Court becomes more and more developed giving it the status of a guardian and a sort of Croatian legal 'avant-garde'. Although the improvements in certain spheres of Croatian law and the practice of the Croatian Constitutional Court are most welcome, it is still necessary that even ordinary courts accept such attitude in regard to the State liability. Otherwise, there is an improper balance between the interests of the State and protection of individual rights, at the prejudice of the latter. Due to the facts that Croatia is a candidate country for the membership in the EU and that one of the requirements for that is the stability of institutions guaranteeing democracy, the rule of law, human rights and the ability to take on the obligations of membership, the presentation of the current state of affaires in Croatian law is followed by a short overview of the concept of State liability in the EU law. [ABSTRACT FROM AUTHOR]