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USTAVNI SUD REPUBLIKE HRVATSKE
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HISTORY OF CROATIAN CONSTITUTIONAL JUDICATURE

INTRODUCTION
CONSTITUTIONAL JUDICATURE IN THE REPUBLIC OF CROATIA FROM 1963 TO 1990
CREATING THE REPUBLIC OF CROATIA AND ESTABLISHING THE CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA
CONSTITUTIONAL JUDICATURE IN THE REPUBLIC OF CROATIA AFTER 1990



Škrinja privilegija - Chest box of privileges of the Kingdom of Croatia, Dalmatia and Slavonia, 17th century INTRODUCTION

Constitutional judicature was introduced in the Republic of Croatia in 1963 and the Constitutional Court began to work in 1964.Constitutional judicature in the Republic of Croatia is divided in two historical periods:
- constitutional judicature in the former Socialist Republic of Croatia (hereinafter: SR Croatia) from 1963 to 1990 - the period when Croatia was one of the six federal units (republics) of the former Socialist Federal Republic of Yugoslavia (hereinafter: former SFRY);
- constitutional judicature in the Republic of Croatia after 1990 - the period after the Republic of Croatia gained independence and sovereignty.

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CONSTITUTIONAL JUDICATURE IN THE REPUBLIC OF CROATIA FROM 1963 TO 1990

The Federal Constitution of the former SFRY and the constitutions of the former socialist republics that comprised it, including the Constitution of SR Croatia, which were passed in 1963, were a major landmark in constitutional law because they inaugurated constitutional judicature and established separate constitutional courts.

Constitutional judicature in the former SFRY was based on the federal principle, which gave rise to a very extensive hierarchy of constitutional and legal provisions consisting of (from higher to lower): - federal constitution - federal law - republican constitutional - republican law. Republican law had to be in conformity with the republican constitution, but also with federal law and the federal Constitution; the republican constitution had to be in conformity with federal law and the federal Constitution, and federal law had to be in conformity with the federal Constitution.

Bearing in mind the above hierarchy of legal regulations in the former SFRY, the division of work between the federal Constitutional Court of the former SFRY and the constitutional courts of the former socialist republics that comprised it, including the Constitutional Court of SR Croatia, depended on whether a particular regulation was being reviewed from the aspect of its conformity with the federal Constitution, federal law or other federal regulation, or with the republican constitution, republican law or other republican regulation.

Constitutional Competence of the Constitutional Court of SR Croatia in accordance with the Constitution of SR Croatia from 1963

The basic constitutional competence of the Constitutional Court of SR Croatia in the period from 1963 to 1974 was the following:

- decided on the conformity of republican laws with the Constitution of SR Croatia,
- decided on the conformity of all other regulations, statues and other general enactments of bodies and organisations with the Constitution of SR Croatia, republican laws and other republican regulations;
- resolved jurisdictional disputes between courts and other state bodies on the territory of the Republic;
- resolved disputes about rights and duties between socio-political communities, if these disputes were not within the jurisdiction of regular courts;
- decided on the protection of self-management rights and other constitutionally established basic rights and freedoms when an individual enactment or activity of a Republican or communal body had infringed these rights and freedoms, and when no other judicial protection was provided by law;
- monitored matters of interest for the realisation of constitutionality and legality and on this basis gave the Croatian Parliament its opinions and proposals for passing laws and undertaking other measures to ensure constitutionality and legality, and the protection of self-management rights and other rights and freedoms of citizens and organisations;
- performed other duties within its competence in republican constitution or law.

When the Constitutional Court found that a republican law was not in conformity with the republican Constitution, the Croatian Parliament was obliged to bring the law into conformity with the Constitution within a term of six months from the day when the Constitutional Court decision was published. If the Croatian Parliament failed to bring the law into conformity with the Constitution within that deadline, that law or its separate provisions that were not in conformity with the constitution went out of force, and Constitutional Court passed a decision to this effect.

If it found that subordinate legislation or another general enactment was not in conformity with the republican constitution, the Constitutional Court was authorised to annul or repeal this regulation or general enactment, or their separate provisions that were not in conformity with the republican constitution or republican law.


Constitutional competence of the Constitutional Court of SR Croatia in accordance with the Constitution of SR Croatia from 1974

The new (last) Constitution of the former SFRY, and the constitutions of the former socialist republics as the federal units that comprised it, were passed in 1974.

The basic constitutional competence of the Constitutional Court of SR Croatia from 1974 to 1990 was the following:

- decided on the conformity of republican laws with the republican constitution, including laws that had gone out of force, provided that no more than one year had elapsed between the date when they went out of force and the date when proceedings were instituted;
- decided on the conformity of other regulations and general enactments issued by republican bodies with the republican constitution and republican law, Including those that had gone out of force, provided that no more than one year had elapsed between the date when they went out of force and the date when proceedings were instituted;
- decided on whether regulations and other general enactments issued by the bodies of socio-political communities, and other self-management general enactments, were in conformity with the republican constitution, i.e. whether they were in breach of republican law and federal law whose implementation was the responsibility of bodies in the Republic;
- resolved disputes on rights and duties between socio-political communities if these disputes were not within the jurisdiction of another court;
- resolved jurisdictional conflict between courts and other state bodies on the territory of the Republic;
- decided on the protection of self-management rights and other constitutionally established rights and freedoms when an individual enactment or activity of a republican body, body of a socio-political community, body of an organisation of associated labour or other self-management organisation or community had infringed these rights and freedoms, and when no other judicial protection was provided by law, or when the law so provided;
- monitored matters of interest for the realisation of constitutionality and legality, informed the Croatian Parliament on the situation and problems in realising constitutionality and legality, and gave the Croatian Parliament its opinions and proposals for passing and amending laws and undertaking other measures to ensure constitutionality and legality, and the protection of self-management rights and other rights and freedoms of citizens, and self-management organisations or communities;
- reported to the Croatian Parliament that a competent body had not issued, although it had been obliged to do so, a regulation for the implementation of provisions of the Constitution, law or other republican regulations and general enactments.

In accordance with the Constitution of SR Croatia of 1974, during its proceedings, until it had made its final decision, the Constitutional Court was authorised to suspend the execution of individual enactments or activities undertaken in accordance with the law, other regulation or general enactment whose constitutionality or legality was under review, if their execution might cause irreparable harm.

If it found that a republican law was not in conformity with the republican constitution, the Constitutional Court was authorised to pass a decision to this effect. At the same time it was also authorised to suspend the execution of separate provisions of the law if it found that their application would lead to a grave violation of the Constitution. The Croatian Parliament was obliged to bring the disputed law into conformity with the Constitution within the term of six months from the day when the Constitutional Court decision was delivered. If the Croatian Parliament failed to bring the disputed law into conformity with the constitution within that deadline, the provisions of the law that were not in conformity with the Constitution went out of force, and the Constitutional Court passed a decision to this effect.

If it found that subordinate legislation or another general enactment was not in conformity with the republican constitution or that it was contrary to law, the Constitutional Court was authorised to annul or repeal that legislation or general enactment, or its separate provisions that were not in conformity with the Constitution and law, or that were contrary to the law.

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CREATING THE REPUBLIC OF CROATIA AND ESTABLISHING THE CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA

Jadranka Fatur: Promulgation of the Constitution on 22 December 1990., oil on canavasThe first multi-party elections in Croatia were held on 22 and 23 April 1990, at a time when Croatia was still a federal unit (republic) within the former SFRY. At that time the Constitution of SR Croatia from 1974 and its amendments were still in force.

The first multi-party Parliament of SR Croatia (with three chambers) was constituted on 30 May 1990.

On 29 June 1990, the new multi-party Croatian Parliament, at a sitting of all the three chambers, passed the Decision to Commence Discussion on Changing the Constitution of the Socialist Republic of Croatia,1 on the grounds that "the provisions expressing ideological single-mindedness should be removed" from the Constitution of SR Croatia and should be "replaced by constitutional provisions that will adequately express the democratic, multi-party and republican form of state organisation (...)".

On 25 July 1990, the Parliament passed the decision to enact the Constitution of the Republic of Croatia2 at a sitting of all the three chambers. On the same day the Decision on Proclaiming Amendments LXIV to LXXV of the Constitution of the Socialist Republic of Croatia was also passed.3 Amendment LXIV provided that the word "socialist" would be deleted before the words "Republic of Croatia" in the title of the Constitution and in its provisions, so that from 25 July 1990 the national parliament has been called the Parliament of the Republic of Croatia.

On 25 July 1990, the earlier name of the Constitutional Court of the Socialist Republic of Croatia was changed to the Constitutional Court of the Republic of Croatia.

On 22 December 1990, the Parliament of the Republic of Croatia passed a new Constitution of the Republic of Croatia, which - with revisions and amendments - is still in force.4

On 21 February 1991, the Parliament of the Republic of Croatia, at a sitting of all the three chambers, on the occasion of receiving the Resolution of the Parliament of the Republic of Slovenia on the proposal to consensually disassociate the SFRY, passed the Resolution on Accepting Proceedings for the Disassociation of the SFRY and the Possible Association into an Alliance of Sovereign Republics.5

On 25 April 1991, in connection with negotiations about the resolution of the state crisis in the SFRY, the President of the Republic of Croatia brought the Decision on Calling a Referendum6 in the Republic of Croatia on 19 May 1991. On 23 May 1991, the President of the Republic proclaimed, on the basis of the report of the Republican Commission for the Implementation of the Referendum of 22 May 1991, that by referendum the citizens of the Republic of Croatia had made the following Decision: "1. The Republic of Croatia, as a sovereign and independent state, which guarantees cultural autonomy and all civil rights to Serbs and members of the other nationalities in Croatia, may enter into an alliance of sovereign states with the other republics. 2. The Republic of Croatia shall not remain in Yugoslavia as a uniform federal state".7

Pursuant to the above, on 25 June 1991 the Parliament of the Republic of Croatia passed the Constitutional Decision on the Sovereignty and Independence of the Republic of Croatia,8 which establishes that "in this act the Republic of Croatia is initiating proceedings for disassociation from the other republics and from the SFRY. The Republic of Croatia is initiating proceedings for international recognition." At the same sitting of all the three chambers, the Parliament also passed the Declaration on the Establishment of the Sovereign and Independent Republic of Croatia.9

Having found that the three-month term for the postponement of the application of the Constitutional Decision of 25 June 1991, ordered by the Brijuni Declaration, had expired on 7 October 1991, the Parliament of the Republic of Croatia, at the joint sitting of all the chambers held on 8 October 1991, passed the Decision10 whereby the "Republic of Croatia, from 8 October 1991, is breaking relations of public law on the basis of which it constituted, together with the other republics and autonomies, the former SFRY, and denies legitimacy and legality to all bodies of the former federation - SFRY (...)".

Pursuant to the above, 8 October 1991 is considered the date when the Republic of Croatia dissolved all relations of public law with the former SFRY and became an independent and autonomous state.

On 5 December 1991, the Parliament of the Republic of Croatia, at a joint sitting of all the three chambers, passed the Decision on the Election of Judges of the Constitutional Court of the Republic of Croatia,11 whereby the first nine of the total of 11 Constitutional Court judges were elected to the Constitutional Court. The term of the previous Constitutional Court judges expired on 5 December 1991. The newly elected judges of the Constitutional Court entered into office on 7 December 1991, on the day when the President of the Republic of Croatia swore them in.

On 7 December 1991, Jadranko Crnić became the first President of the Constitutional Court of the Republic of Croatia. He had been judge in the previous term of the Court (from 1984) and President of the Constitutional Court of SR Croatia (from 1990). As judge of the Constitutional Court of the Republic of Croatia, he held office of President of the Constitutional Court of the Republic of Croatia for two terms, until December 1999.

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CONSTITUTIONAL JUDICATURE IN THE REPUBLIC OF CROATIA AFTER 1990

The Constitution of the Republic of Croatia from 1990

Accepting the new constitutional order of 1990, the Constitution of the Republic of Croatia of 22 December 1990 (hereinafter: the Constitution of 1990) established the composition, content and competence of the Constitutional Court of the Republic of Croatia (hereinafter: the Constitutional Court).

In accordance with the Constitution of 1990:

- the Constitutional Court consists of eleven judges elected by the House of Representatives at the proposal of the House of Counties of the Parliament of the Republic of Croatia, for a term of eight years, from among outstanding jurists, especially judges, public prosecutors, lawyers and university professors of law;
- the Constitutional Court elects a president of the court for a term of four years;
- judges of the Constitutional Court may not perform any other public or professional duty;
- judges of the Constitutional Court enjoy the same immunity as members of the Croatian Parliament;
- a judge of the Constitutional Court may be relieved of office before the expiry of the term for which he was elected if he so requests, if he is sentenced to a term of imprisonment, or if he is permanently incapacitated for performing his office, as established by the Constitutional Court itself .

In accordance with the Constitution of 1990, the basic competence of the Constitutional Court was as follows:

- decides on the conformity of laws with the Constitution and may repeal a law if it finds it to be unconstitutional;
- decides on the conformity of other regulations with the Constitution and law and may repeal or annul any other regulation if it finds it to be unconstitutional or illegal.;
- protects the constitutional freedoms and rights of man and citizen in proceedings instituted by a constitutional complaint;
- decides jurisdictional disputes among the legislative, executive and judicial branches;
- supervises the constitutionality of the programmes and activities of political parties and may ban their work if their programme or their activities threaten violence against the democratic constitutional order, independence, unity or territorial entirety of the Republic of Croatia;
- supervises the constitutionality and legality of elections and the republican referendum and decides electoral disputes which do not fall within the jurisdiction of courts;
- at the proposal of the Government of the Republic of Croatia, establishes that the President of the Republic is permanently unable to perform his duties, in which case the duties of the President of the Republic are temporarily assumed by the Speaker of the Croatian Parliament;
- in proceedings instituted by a two-thirds majority vote of all representatives of the House of Representatives of the Croatian Parliament, decides by a two-thirds majority vote of all the judges on the impeachment of the President of the Republic. If the Constitutional Court sustains the impeachment, the duty of the President of the Republic ceases by force of the Constitution.

The Constitution of 1990 prescribed that the internal organisation of the Constitutional Court is regulated by its Rules of Procedure.

The Constitution of 1990 also provided that a constitutional act will regulate conditions for the election of judges of the Constitutional Court and the termination of their office, conditions and time-limits for instituting proceedings for the review of constitutionality and legality, the procedure and legal effects of its decisions, protection of constitutional freedoms and rights of man and citizen, and other issues important for the performance of duties and work of the Constitutional Court, and that this constitutional act will be passed by the procedure determined for amending the Constitution.

Since 1990 there has been no law in the constitutional order of the Republic of Croatia, besides the Constitutional Act on the Constitutional Court of the Republic of Croatia, that is passed by the procedure determined for the Constitution itself, that is, to which the Constitution grants constitutional force. This is a clear expression of the importance and role of constitutional judicature in the legal order of the Republic of Croatia.

In accordance with the Constitution of 1990, in March 1991 the Croatian Parliament passed the first Constitutional Act on the Constitutional Court of the Republic of Croatia (hereinafter: Constitutional Act of 1991),12 which further elaborates the competence of the Constitutional Court determined by the Constitution of 1990.


Change of the Constitution of the Republic of Croatia in 1997

The first change of the Constitution of 1990 took place at the end of 1997 when the Constitutional Act on the Revisions and Amendments of the Constitution of the Republic of Croatia was passed.13

None of the provisions of the Constitution of 1990 that regulated the competence of the Constitutional Court were changed or amended by these revisions and amendments.

In September 1999 the Parliament passed a new Constitutional Act on the Constitutional Court of the Republic of Croatia (hereinafter: Constitutional Act of 1999).14

Change of the Constitution of the Republic of Croatia in 2000

The second change of the Constitution took place at the end of 2000 when the Change of the Constitution of the Republic of Croatia was passed.15 In these changes of the Constitution the competence of the Constitutional Court was fundamentally extended, as was the number of judges, which from the original eleven increased to a total of thirteen.

In addition to the competences already established in the Constitution of 1990, the Constitutional Court now got the following new competences:

- may review the constitutionality of a law, and the constitutionality and legality of another regulation, which have lost their legal force, provided that no more than one year has elapsed between the date when they went out of force and the date when the request or proposal to initiate proceedings was lodged;
- monitors the execution of constitutionality and legality and reports to the House of Representatives of the Croatian Parliament about any kind of unconstitutionality and illegality it has observed;
- if it finds that the competent body has not issued a regulation for executing provisions of the Constitution, laws and other regulations, and was obliged to issue such a regulation, it shall so inform the Government of the Republic of Croatia; it informs the House of Representatives of the Croatian Parliament about regulations that should have been issued by the Government.
- at the proposal of the Government of the Republic of Croatia, passes a decision whereby the Speaker of the Croatian Parliament assumes the duties of temporary President of the Republic should the President of the Republic be prevented from performing his duties for a longer period of time because of illness or incapacity, and particularly if he is unable to decide on relegating his duties to a temporary substitute;
- gives prior consent for the detention or institution of criminal proceedings against the President of the Republic;
- decides on an appeal against a decision of the National Judicial Council on relieving a judge of judicial office, and decides on an appeal against a decision of the National Judicial Council on the disciplinary responsibility of a judge, both within a term of 30 days after the appeal has been delivered (the decision excludes the right to a constitutional complaint).16

After the Change of the Constitution of 2000, the Constitutional Act of 1999 in force at that time was not changed or amended.

Change of the Constitution of the Republic of Croatia in 2001

The third (last) change of the Constitution of 1990 took place at the beginning of 2001, when the Change of the Constitution of the Republic of Croatia was passed.17 In these changes the constitutional provisions of 2000, whereby the competence of the Constitutional Court had been fundamentally extended in comparison to its competence in the Constitution of 1990, were not revised or amended.

In these changes of the Constitution the existing constitutional terminology, in the part relevant to the Constitution Court, was brought into accord with the terminology in the Convention for the Protection of Human Rights and Fundamental Freedoms. Also, in the part relevant to the Constitutional Court, reference to the House of Representatives and the House of Counties of the Croatian Parliament was erased from the existing constitutional provisions because the changes of the Constitution in 2001 reorganised the national parliament and provided for one chamber only (the House of Counties was abolished, and the provisions referring to the House of Representatives were replaced by provisions referring to the Croatian Parliament).

In 2001 the Committee for the Constitution, Rules of Procedure and Political System of the Croatian Parliament initiated revisions and amendments of the Constitutional Act on the Constitutional Court of the Republic of Croatia. In March 2002 the Constitutional Act on the Revisions and Amendments of the Constitutional Act on the Constitutional Court of the Republic of Croatia was passed, bringing the text of the Constitutional Act of 1999 into accord with the extended competence of the Constitutional Court established in the Change of the Constitution in 2000. This is still in force.

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1 Narodne novine, No. 31 of 28 July 1990.

2 Narodne novine, No. 31 of 28 July 1990.

3 Narodne novine, No. 31 of 28 July 1990.

4 Ustav Republike Hrvatske (The Constitution of the Republic of Croatia), Narodne novine, No. 56 of 22 December 1990. The revisions and amendments of the Constitution of the Republic of Croatia were published in Narodne novine, Nos. 135/97 (8/98 - consolidated wording), 113/2000 (124/2000 - consolidated wording) i 28/2001 (41/2001 - consolidated wording, 55/2001 - correction).

5 Narodne novine, No. 8 of 21 February 1991.

6 Narodne novine, No. 21 of 2 May 1991.

7 Narodne novine, No. 24 of 27 May 1991. According to the Report of the Republican Commission for the Implementation of the Referendum of 22 May 1991, 84.94% voters voted at the referendum, and 93.94% voters of the Republic of Croatia voted for this decision. The data are from the book Sokol, S./Smerdel, B.: Ustavno pravo (Constitutional Law), Informator, Zagreb, 1995, p. 58.

8 Narodne novine, No. 31 of 25 June 1991.

9 Narodne novine, No. 31 of 25 June 1991.

10 Narodne novine, No. 53 of 8 October 1991.

11 Narodne novine, No. 66 of 9 December 1991.

12 Ustavni zakon o Ustavnom sudu Republike Hrvatske (Constitutional Act on the Constitutional Court of the Republic of Croatia), Narodne novine, No. 13 of 21 March 1991.

13 Ustavni zakon o izmjenama i dopunama Ustava Republike Hrvatske (Constitutional Act on the Revisions and Amendments of the Constitution of the Republic of Croatia), Narodne novine, No. 135. of 15 December 1997. The consolidated wording was published in Narodne novine, No. 8 of 25 January 1998.

14 Ustavni zakon o Ustavnom sudu Republike Hrvatske (Constitutional Act on the Constitutional Court of the Republic of Croatia), Narodne novine, No. 99 of 29 September 1999.

15 Promjena Ustava Republike Hrvatske (Change of the Constitution of the Republic of Croatia), Narodne novine, No. 113 of 16 November 2000. The consolidated text of the Constitution of the Republic of Croatia was published in Narodne novine, No. 124 of 11 December 2000.

16 Compare Articles 36 para. 2, 45, 58, 62 to 64, Promjena Ustava Republike Hrvatske, Narodne novine, No. 113 of 16 November 2000.

17 Promjena Ustava Republike Hrvatske (Change of the Constitution of the Republic of Croatia), Narodne novine, No. 28/2001. The consolidated wording of the Constitution of the Republic of Croatia was published in Narodne novine, No. 41 of 7 May 2001, and covered the Constitution of the Republic of Croatia and its revisions and amendments (changes) published in Narodne novine Nos. 56/90, 135/97, 8/98 - consolidated wording, 113/2000,124/2000 - consolidated wording, 28/2001.


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