Croatia / Constitutional Court / U-I-1039/2021 and U-I-1620/2021

Dario Juričan, Jadranka Sloković and Sandra Marković
Deciding body type
National Court/Tribunal
Deciding body
Constitutional Court of the Republic of Croatia
Type
Decision
Decision date
23/03/2021
  • Croatia / Constitutional Court / U-I-1039/2021 and U-I-1620/2021

    Key facts of the case: 

    The Constitutional Court rejected the requests submitted by the petitioners for constitutional review of Article 44a of the Courts Act, which prescribes the procedure for electing the president of the Supreme Court. The petitioners argued that Article 44a of the Courts Act is unconstitutional because it prescribes a different procedure from that set out in Article 119 (2) of the Constitution. Specifically, Article 119 (2) of the Constitution prescribes that "the president of the Supreme Court of the Republic of Croatia shall be appointed and dismissed by the Croatian Parliament at the proposal of the President of the Republic, following a preliminary opinion of the General Session of the Supreme Court of the Republic of Croatia and of the competent committee of the Croatian Parliament". On the other hand, Article 44a of the Courts Act stipulates that the procedure for electing the president of the Supreme Court is initiated via a public call for candidates launched by the State Judicial Council. After receiving candidate applications, the State Judicial Council submits them to the Office of the President of the Republic of Croatia, which will request an opinion on the candidates from the General Session of the Supreme Court of the Republic of Croatia and the competent committee of the Croatian Parliament. 

    The petitioners point out that the President of the Republic of Croatia is competent to propose candidates for the president of the Supreme Court under the Constitution, but the disputed provision of the Courts Act restricts the choice of candidates to those who respond to the public call. They argue that the Constitution is a set of directly applicable norms of the highest rank superseding legal norms and therefore the nomination of the president of the Supreme Court is the original constitutional competence of the President of the Republic limited in no way. The President of the Republic nominates a candidate, and the Croatian Parliament elects a candidate so there is undoubtedly a need for cooperation between the two institutions. It follows from the Constitution that the President proposes a candidate to the Parliament, which, after receiving the preliminary opinion of the General Session of the Supreme Court and the competent committee, decides on the election. The only limitation that the President has by the nature of things are the material conditions for the election of the president of the Supreme Court provided by law, such as legal education and work experience. Article 44a of the Courts Act unconstitutionally limits the original presidential power by prescribing that the procedure must be initiated by the State Judicial Council through a public call which is not prescribed in the Constitution. Moreover, contrary to the Constitution, Article 44 (4) of the Courts Act requires the President of the Republic to obtain a preliminary opinion of the General Session of the Supreme Court and the competent committee of the Croatian Parliament. It therefore prescribes something that is explicitly contrary to the Constitution which provides for a different procedure: the President proposes candidates to the Parliament, and then the Parliament seeks a preliminary opinion of its competent committee and the General Session of the Supreme Court before making a decision. These changes are, in fact, a subtle way of putting pressure on the President of the Republic and capacitating them when forming a proposal for the president of the Supreme Court.  

     

    Key legal question raised by the Court: 

    The key legal issue is the fact that the legal provision and the constitutional provision are in contradiction, arising from the fact that both regulate the same procedure. The key question is whether Article 44a of the Courts Act is in line with the Constitution and whether the President of the Republic of Croatia can propose a candidate for the president of the Supreme Court who did not respond to the public call launched by the State Judicial Council. 

     

    Outcome of the case: 

    The Constitutional Court concluded that the President of the Republic is authorised to nominate only a candidate who responded to a public call launched by the State Judicial Council, however the President is not bound by the opinion of the General Session of the Supreme Court and the Judiciary Committee of the Croatian Parliament when submitting the proposal to the Croatian Parliament. The Constitutional Court stressed that the Courts Act does not restrict the President of the Republic who, according to the Constitution, nominates a candidate elected by the Croatian Parliament. 

  • Paragraphs referring to EU Charter

    The Republic of Croatia is a member of the European Union (hereinafter: the EU), and the principle of effective judicial (legal) protection is guaranteed by Article 19 (1) (2) of the Treaty on European Union (Official Journal of the EU No. C 202/27; hereinafter: TEU), as a general principle of EU law stemming from the constitutional traditions common to the Member States and is protected by Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("Official Gazette — International Treaties" 18/97, 6/99 – consolidated text, 8/99 – correction, 14/02 and 1/06), and confirmed in the EU legal order by Article 47 of the Charter of Fundamental Rights (Official Journal of the EU No. C 202/403; hereinafter: the Charter). 

    The principle of effective judicial protection in Article 19 (1) (2) of the TEU, when interpreted in conjunction with Article 47 of the Charter, which guarantees the fundamental right of access to an independent and impartial tribunal and the rule of law which is a common EU value pursuant to Article 2 of the TEU, also covers the principles of independence and impartiality of the courts.
     

  • Paragraphs referring to EU Charter (original language)

    Republika Hrvatska članica je Europske unije (u daljnjem tekstu: EU), a načelo učinkovite sudske (pravne) zaštite zajamčeno je člankom 19. stavkom 1. podstavkom 2. Ugovora o Europskoj uniji (Službeni list EU broj C 202/27; u daljnjem tekstu: UEU), kao opće načelo prava EU-a, koje proizlazi iz ustavnih tradicija zajedničkih državama članicama i zaštićeno je člancima 6. i 13. Konvencije za zaštitu ljudskih prava i temeljnih sloboda ("Narodne novine - Međunarodni ugovori" broj 18/97., 6/99. - pročišćeni tekst, 8/99. - ispravak, 14/02. i 1/06.), te je u pravnom poretku EU-a potvrđeno člankom 47. Povelje o temeljnim pravima (Službeni list EU broj C 202/403; u daljnjem tekstu: Povelja).

    Načelo učinkovite sudske zaštite iz članka 19. stavka 1. podstavka 2. UEU-a, kada se tumači u vezi s člankom 47. Povelje, koji jamči temeljno pravo na pristup neovisnom i nepristranom sudu, te s načelom vladavine prava koje je zajednička vrijednost EU-a na temelju članka 2. UEU-a, obuhvaća i načela neovisnosti i nepristranosti sudova.