Abstract
After years of development, various instruments of international and EU law have built strong guarantees for the protection of individual rights, ranging from fundamental human rights to fundamental market freedoms. However, the best law can at the same time be the worst if it is not applied in practice. Therefore, the aim of this chapter is to look at how international and EU law are actually applied in the European Union’s newest Member State, the Republic of Croatia.
The opinions expressed in this work are those of the author and do not represent the views of the Court of Justice of the European Union.
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Notes
- 1.
Notably, the Act on the Conclusion and Implementation of International Agreements (Zakon o sklapanju i izvršavanju međunarodnih ugovora) (Official Gazette 28/96) and the Courts Act (Zakon o sudovima) (Official Gazette 150/05, 16/07, 113/08, 153/09, 116/10, 122/10, 27/11, 57/11, 130/11, 28/13).
- 2.
The Constitutional Court of the Republic Croatia is composed of 13 judges appointed by the Parliament for a term of 8 years. Its president is elected by his or her peers for a term of 4 years. The Constitutional Court decides on the conformity of laws with the Constitution and the legality of administrative acts and regulations. It ensures respect for the autonomy of local authorities and respect of the division of powers between the legislative, executive and judicial branches; it protects citizens’ fundamental rights and freedoms, rules on the responsibility of the Head of State, controls the programmes of political parties and may, if appropriate, prohibit their activity. It also oversees the constitutionality of elections and referendums and validates the results. The fundamental provisions concerning the jurisdiction of the Constitutional Court of the Republic of Croatia are contained in the Constitution of the Republic of Croatia. The jurisdiction of the Constitutional Court, as stipulated by the Constitution, is elaborated in the Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske) (Official Gazette 99/99, 29/02, 49/02), which was enacted in accordance with the procedure determined for amending the Constitution.
- 3.
The Croatian Constitution was adopted on 22 December 1990 (Official Gazette 56/1990) and has so far been amended five times—by a constitutional law in 1997 (Official Gazette 135/1997), by parliamentary decisions in 2000 (Official Gazette 113/2000), 2001 (Official Gazette 28/2001) and 2010 (Official Gazette 76/2010), and by a referendum in 2013. The last official version of the consolidated text of the Constitution was published in 2010 (Official Gazette 85/2010). The status of international treaties was originally regulated by Article 134 of the Constitution, which was slightly changed in 1997. It subsequently became Article 140, and is currently Article 141 in the 2010 consolidated text (the numeration of which shall be used for the purposes of this chapter). At present, there is no official version of the Constitution in the English language or in any other foreign language published in the Official Gazette. However, an unofficial translation of the Constitution is available on the Parliament’s website at: http://www.sabor.hr/Default.aspx?art=2405. Accessed 20 November 2013. The quality of the translation was severely criticised by the Constitutional Court in its Report U-X-5076/2013 of 15 October 2013.
- 4.
Omejec (2009a), p. 11. http://www.venice.coe.int/webforms/documents/?pdf=CDL-JU(2009)035-e. Accessed 20 September 2013. The author is currently serving as President of the Constitutional Court of the Republic of Croatia.
- 5.
Article 115 of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske) (Official Gazette 8/1998).
- 6.
Omejec (2009a), p. 9. http://www.venice.coe.int/webforms/documents/?pdf=CDL-JU(2009)035-e. Accessed 20 September 2013; Smerdel and Sokol (2009), p. 101.
- 7.
Rodin (1995), p. 785.
- 8.
Omejec (2009a), p. 10. http://www.venice.coe.int/webforms/documents/?pdf=CDL-JU(2009)035-e. Accessed 20 September 2013.
- 9.
Omejec (2009a), p. 9. http://www.venice.coe.int/webforms/documents/?pdf=CDL-JU(2009)035-e. Accessed 20 September 2013; Zakon o sklapanju i izvršavanjau međunarodnih ugovora (Official Gazette 28/96).
- 10.
Omejec (2009a), p. 11. http://www.venice.coe.int/webforms/documents/?pdf=CDL-JU(2009)035-e. Accessed 20 September 2013.
- 11.
Decision No. U-I-745/1999 of 8 November 2000 (Official Gazette 112/2000). It should be noted that the Constitutional Court decided for the first time on the incompatibility of national legislation with an international treaty in 1998, although not explicitly, and without an explanation on the basis on which it established its competence to decide on the matter. This was in the case of the assessment of the constitutionality of certain provisions of the Croatian Railways Act with Article 8 of the International Covenant on Economic, Social and Cultural Rights of the United Nations. In its Decision U-I-920/1995, U-I-950/1996, U-I-262/1998, U-I-322/1998 (Official Gazette 98/98), the Constitutional Court found that ‘the non-compliance of Article 23 Section 4 Paragraph 1 of the Croatian Railways Act with the mentioned provisions of international law represented a violation of the principle of rule of law from Article 3 of the Constitution, as a fundamental value of the constitutional order of the Republic of Croatia’. For more details, see Omejec (2009a), p. 15. http://www.venice.coe.int/webforms/documents/?pdf=CDL-JU(2009)035-e. Accessed 20 September 2013.
- 12.
Article 3 of the Constitution specifies the fundamental values (‘the highest values’) of the Croatian Constitutional order, notably freedom, equal rights, national and gender equality, peace-making, social justice, respect for human rights, inviolability of ownership, conservation of nature and the environment, the rule of law and a democratic multiparty system.
- 13.
Paragraph 7 of the Decision. Translation of the Decision into English can be found at: http://sljeme.usud.hr/usud/prakswen.nsf/Venecijan/C1256A25004A262AC12569930035474E?OpenDocument. Accessed 12 January 2014.
- 14.
According to subparagraph 4 of Article 129 of the Croatian Constitution, the Constitutional Court decides on constitutional complaints against individual decisions taken by governmental agencies, bodies of local and regional self-government and legal persons vested with public authority where such decisions violate human rights and fundamental freedoms, as well as the right to local and regional self-government guaranteed by the Constitution of the Republic of Croatia. This jurisdiction of the Constitutional Court is further elaborated in the Constitutional Act on the Constitutional Court.
- 15.
See e.g. Rodin (1995), p. 791.
- 16.
Decision U-I-825/2001 of 14 January 2004 in which the Constitutional Court rejected a proposal to institute proceedings to review the constitutionality of the Treaty between the Holy See and the Republic of Croatia on Legal Matters (19 December 1996), the Treaty between the Holy See and the Republic of Croatia on Cooperation in the Field of Education and Culture (19 December 1996), the Treaty between the Holy See and the Republic of Croatia on Spiritual Counselling of Catholics Members of the Armed Forces and Police of the Republic of Croatia (19 December 1996) and the Treaty between the Holy See and the Republic of Croatia on Economic Issues (9 October 1998).
- 17.
Rodin (2009), pp. 317–245, 325.
- 18.
For an analysis of the possibility to review the substance of act of ratification, see the opinion of Professor Vukas in Omejec (2009a), p. 14. http://www.venice.coe.int/webforms/documents/?pdf=CDL-JU(2009)035-e. Accessed 20 September 2013.
- 19.
- 20.
Andrassy et al. (1998), p. 6; Omejec (2009a), p. 9. http://www.venice.coe.int/webforms/documents/?pdf=CDL-JU(2009)035-e. Accessed 20 September 2013.
- 21.
- 22.
Omejec (2009b), p. 137.
- 23.
Omejec (2013); Omejec (2007), pp. 1–9 and 1–15; Vajić (2002). https://www.pravo.unizg.hr/_download/repository/godisnjaci/1-godisnjak.pdf. Accessed November 2013.
- 24.
Zakon o potvrđivanju Konvencije za zaštitu ljudskih prava i temeljnih sloboda i Protokola br. 1, 4, 6, 7 i 11 uz Konvenciju za zaštitu ljudskih prava i temeljnih sloboda (Official Gazette—International Treaties 18/97).
- 25.
- 26.
An overview of the most important judgments against Croatia is available at http://www.echr.coe.int/Documents/CP_Croatia_ENG.pdf. Accessed November 2013.
- 27.
http://www.poslovni.hr/hrvatska/omejec-sudovi-nedovoljno-primjenjuju-konvenciju-o-zastiti-ljudskih-prava-251495. Accessed 17 December 2013. Omejec (2007), pp. 1–15, 7.
- 28.
According to a search made in the private database IUS-INFO in February 2014, a total of 386 decisions of the Constitutional Court mention the words ‘europska konvencija’. When the same search is performed regarding the decisions of the Supreme Court, there are 364 matches. Six matches occur for all the county courts and six for the High Administrative Court. These results must be considered as just an indicator of how often the Convention is cited, since the database does not contain all the judgments of the aforementioned courts. However, it should be said that the Convention is actually applied in a significantly lower number of cases. A search of the Constitutional Court’s database at www.usud.hr reveals 20 hits when “Europska konvencija za zaštitu ljudskih prava i temeljnih sloboda” is selected as the search term in the Venice Glossary. However, this search is not very reliable since some of the decisions shown in the results do not even mention the ECHR (U-I-3084/2008). According to the research done by Preložnjak in 2012, a search of the Supreme Court’s database revealed only seven judgments in which the ECHR had been applied. Preložnjak (2012), pp. 109–152, 113.
- 29.
Rodin (2011a), p. 2. http://excellence.com.hr/Opatija/w/wp-content/themes/ec/working_papers/WP%20Opatija%202_2011.pdf. Accessed 17 December 2013.
- 30.
‘All shall be equal before the law.’
- 31.
‘The Bar, as an autonomous and independent service, shall provide everyone with legal aid, in conformity with law.’
- 32.
The General Agreement on the Trade of Services (hereinafter GATS) and the Schedule of specific commitments of the Republic of Croatia, as attached to the GATS which has been confirmed by the Act on confirmation of the Protocol of accession of the Republic of Croatia to the Marrakesh agreement establishing the World Trade Organisation signed in Geneva on 17 July 2000.
- 33.
Konvencija Ujedinjenih naroda o ugovorima o međunarodnoj prodaji robe—Sl. list SFRJ-dodatak Međunarodni ugovori broj 10/84, 15/98.
- 34.
Haška konvencija o građanskom postupku od 1. ožujka 1954. godine (Official Gazette—International Agreements 4/94).
- 35.
The Convention on the Rights of the Child has also been applied by the courts of lower instance, such as the Municipal Court in Varaždin in Case 6P-54/10-35.
- 36.
Decision Promulgating the Changes to the Constitution of the Republic of Croatia (Odluka o proglašenju promjena Ustava Republike Hrvatske) (Official Gazette 76/2010). According to the 2010 consolidated text of the Constitution (Official Gazette 85/2010), Chapter VIII of the Constitution.
- 37.
Paragraph numbering added by the authors.
- 38.
Case 6 /1964 Flamino Costa v. ENEL, ECR 585.
- 39.
Rodin (2011b), pp. 87–118, 89.
- 40.
For a detailed analysis of Article 145 of the Constitution, see Rodin (2011b), pp. 87–118.
- 41.
Judgment of the Administrative Court in Rijeka of 18 October 2013 in Case 2 UsI-1472/12-59.
- 42.
Zakon o pravosudnoj suradnji u kaznenim stvarima s državama članicama Europske unije (Official Gazette 91/10, 81/13, 124/13).
- 43.
A similar example of citation of the case law of the Court of Justice can be found in point 5 of the Constitutional Court’s Decision U-I-2403/2009 of 25 February 2014.
- 44.
Point 6 of the Decision.
- 45.
The procedure before the Constitutional Court was terminated by Decision U-I-3861/2013 of 12 December 2013.
- 46.
Case C-212/1997, Centros Ltd v. Erhvervs- og Selskabsstyrelsen ECR 1999. It should be mentioned that in none of the Croatian courts cases that the authors have analysed has the case law of the Court of Justice been properly cited by using the case number, the name of the case and the paragraph which is being referred to.
- 47.
Zakon o parničnom postupku (Official Gazette 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 57/11, 148/11, 25/13).
- 48.
Zakon o kaznenom postupku (Official Gazette 152/08, 76/09, 80/11, 121/11, 91/12, 143/12, 56/13, 145/13).
- 49.
Croatian academics have argued in favour of regulating the preliminary reference procedure in one act. Ćapeta and Petrašević (2011), p. 5.
- 50.
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62014CN0254&qid=1410859779106. Accessed 16 September 2014.
- 51.
At the time of writing, the case was still being handled by the Court of Justice of the European Union.
- 52.
Ustavni zakon o Ustavnom sudu (Official Gazette 99/1999, 29/2002). The consolidated text was published in Official Gazette 49/2002.
- 53.
For a detailed analysis of the Constitutional Court’s case law on this matter, see Sect. 2.1.1 of this chapter.
- 54.
Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA (1978) ECR 643, para 24.
- 55.
Ćapeta (2009), pp. 63–96, 90. The paper is also available at http://hrcak.srce.hr/index.php?show=clanak$id_clanak_jezik=52084. Accessed 15 January 2014. Both Rodin (2011b), pp. 87–118, 118, and Ćapeta (2009), pp. 88–90 have warned against this impediment to the Simmenthal mandate of ordinary courts. For a detailed analysis of the Simmenthal duty, see the same text from Rodin (2011b).
- 56.
Several earlier cases regarding the same issue are cited in point 9.3 of the Decision.
- 57.
Article 4 of the Constitution.
- 58.
Articles 115–121 of the Constitution.
- 59.
The same provision is repeated in the Courts Act (see reference above), which regulates the organisation, competence and jurisdiction of courts, their internal organisation, the rights and responsibilities of judges, the internal organisation of the Supreme Court of the Republic of Croatia and other provisions regarding the appointment of jurors, official court interpreters, expert witnesses and appraisers, as well as judicial administration. The conditions for the appointment, promotion, transfer and removal of judges, the procedure for the determination of their disciplinary responsibility, and the procedures for the appointment and dismissal of presidents of the courts are regulated by the State Judicial Council Act (Zakon o državnom sudbenom vijeću) (Official Gazette 116/10, 57/11, 130/11, 13/13, 28/13).
- 60.
According to the Statistical Report of the Ministry of Justice for the year 2012 (the Report was released in May 2013), on 31 December 2012 in the Republic of Croatia there were in total 67 municipal courts, 15 county courts, seven commercial courts, four administrative courts, 61 misdemeanours courts, the High Commercial Court of the Republic of Croatia, the High Administrative Court of the Republic of Croatia, the High Misdemeanours Court of the Republic of Croatia and the Supreme Court of Croatia. The Ministry of Justice has suggested a reform of the judicial system which would significantly reduce the number of courts, and which might be implemented in 2015.
- 61.
County courts decide on appeals lodged against the first-instance decisions of municipal courts, but they also have first-instance jurisdiction to adjudicate crimes which may be punished by imprisonment of more than 10 years, and carry out any other activities which are provided for by law (e.g. conduct investigations, decide on appeals against the decision of an investigating judge, and make decisions about his/her proposals, conduct proceedings for the extradition of indicted or convicted persons unless the law specifies the jurisdiction of the Supreme Court of the Republic of Croatia). In civil matters, county courts have first-instance jurisdiction in cases concerning joint anti-discrimination actions and in cases of bans on strikes and lockouts.
- 62.
According to the information received from the Constitutional Court’s Records and Documentation Centre on 27 February 2013, to date the Constitutional Court has decided on the merits seven requests for the control of the constitutionality of laws and/or for the control of the legality of administrative acts and regulations referred to it by national courts (six of which on the legality of administrative acts and regulations and only one on the conformity of a law with the Constitution).
- 63.
On 31 December 2012 the ICMS was introduced into all county courts and commercial courts, in 33 municipal courts and partially into the High Commercial Court and the Supreme Court (information provided by the Supreme Court’s IT Department on 28 March 2013).
- 64.
http://sudskapraksa.vsrh.hr/supra/. Accessed February 2013.
- 65.
The bulletin ‘Izbor odluka’ contains a selection of the most important legal decisions with the text of the legal standpoints/sentences of the Supreme Court.
- 66.
In 2012, 42 courts recorded their decisions in the ‘SupraNova’ database (information provided by the Supreme Court’s IT Department on 29 March 2013).
- 67.
http://www.iusinfo.hr/ and http://www.sudacka-mreza.hr/. Accessed February 2013.
- 68.
http://www.usud.hr/default.aspx?Show=kako_pretrazivati_bazu_ustavnosudske_prakse$m1=2$m2=68&Lang=hr. Accessed February 2013.
- 69.
Offering in this way an incomplete overview of the ECtHR’s case law.
- 70.
The historic case law selected for the accession of Croatia consists of 1,143 judgments, opinions and orders of the Court of Justice and the General Court (1956 – June 2013). The documents have been sent to the Croatian Translation Centre of the Ministry of Foreign and European Affairs. The 57 historic decisions translated by the Court’s Croatian translation Unit are available at: http://curia.europa.eu/jcms/jcms/P_119447/. Accessed 13 March 2014. Before the accession of Croatia to the EU, there was a total of about 100 decisions which were partially translated for educational purposes by the academic staff of the Croatian law schools and most of them may be found on several websites, such as http://www.sudacka-mreza.hr/euodluke.aspx?Lng=hr (accessed 10 February 2013), while the remaining decisions may be consulted only as hard-copy commercial editions. From the date of the accession of Croatia to the European Union (1 July 2013), the CJEU case law is undergoing translation into Croatian by the CJEU translation services.
- 71.
The texts in Croatian are available online at http://eur-lex.europa.eu/RECH_DDProv.do?ihmlang=hr$dd_lng=HR. Accessed 10 February 2013.
- 72.
According to the Judicial Trainees and Bar Examination Act (Official Gazette 84/08, 75/09) and the Rules on the Bar Examination, the written part consists of the drafting of two judicial decisions and one essay, while the oral part of the bar examination consists of five groups of subjects: Civil and Commercial Law; Civil Procedural and Family Law; Criminal Law and Criminal Procedure; Labour Law and Administrative Law; the Constitutional System, the Basis of the System of the European Union and the Organisation of the Judiciary. Candidates are eligible to sit the bar exam if they have a graduate law diploma and the required professional experience.
- 73.
The required literature is available at http://www.mprh.hr/Default.aspx?sec=325. Accessed 22 February 2014.
- 74.
The law bringing the reform of the system of judicial appointments was passed in 2009, establishing a State School for Judicial Officials as a separate unit of the Judicial Academy, the national institution in charge of the professional training of judges and prosecutors. Before 2009, judges were appointed by the State Council of the Judiciary on the basis of their experience and CVs and the opinion of the Judicial Council for the relevant court. Between 2009 and 2013, a transitional system of appointment was established. Judges were appointed after passing the judicial examination, consisting of the examination of a judicial file and the drafting of an integral judicial decision and a structured interview with the members of the State Judicial Council. The first generation of future judges and prosecutors started their initial training at the National School for Judicial Officials in 2011, and their final exam was held in 2013; the second generation began initial training in 2012, while the selection procedures for the third generation are still underway.
- 75.
According to the Programme of the second generation of the National School for the Judiciary, which started the initial training in 2012, approximately 20 % of the courses are dedicated to EU law and the Convention.
- 76.
The Programme of Professional Training for 2014 of the Judicial Academy shows that judges, prosecutors and their legal advisors had the possibility to participate in three types of workshops dedicated to ‘European and International Law’, a significant part of which is dedicated to the ECHR. http://pak.hr/cke/pdf%20hr/Program%20cjeloziv%20usavrsavanja%20%20PA_2014%20web%20konacno.pdf. Accessed 27 February 2014.
- 77.
According to the information obtained in a phone conversation with the Ministry of Foreign and European Affairs, in February 2014 the Republic of Croatia was a party to over 3,000 instruments of international law (such as bilateral agreements and acts and multilateral agreements and acts). It must be taken into account that most of those instruments are by their nature not such as to create individual rights. Nevertheless, according to our research, just a dozen international treaties have been discussed, and even a smaller number of them applied by Croatian courts.
- 78.
- 79.
They gave it an average mark of 3 on a scale of 1 to 5. Preložnjak (2012), p. 127.
- 80.
Preložnjak (2012), p. 134.
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Božac, I., Carević, M. (2015). Judicial Application of International and EU Law in Croatia. In: Rodin, S., Perišin, T. (eds) Judicial Application of International Law in Southeast Europe. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46384-0_8
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