Key facts of the case:
The applicant, Ante Šumelj from Zagreb (hereinafter: the applicant), applied for the constitutional review of the Enforcement Act (Ovršni zakon) (2012), the Act Repealing the Public Bailiffs Act (Zakon o prestanku važenja Zakona o javnim ovršiteljima), and the Act Repealing the Public Bailiff Fees Act (Zakon o prestanku važenja Zakona o javnoovršiteljskim pristojbama). The applicant stated that: - The Republic of Croatia instituted the institute of public bailiffs in the Enforcement Act (Ovršni zakon) (2010) and the Public Bailiffs Act (Zakon o javnim ovršiteljima) as a part of obligations undertaken under the Stabilisation and Association Agreement with the EU. The Croatian parliament, on 22 December 2011, postponed the implementation of the Public Bailiffs Act until 1 July 2012. By signing the Treaty of Accession, Croatia was obligated to fulfil all obligations undertaken in Chapter 23 – Judiciary and Fundamental Rights, among other things the implementation of the Croatian Judiciary Reform Strategy and the action plan which foresaw the institution of a public bailiff service. However, it failed to institute the public bailiff service. This decision was made without any expert elaboration or without foreseeing funds for the remuneration of the appointed public bailiffs. However, instead, the Republic of Croatia adopted the Enforcement Act, the Act Repealing the Public Bailiffs Act and the Act Repealing the Public Bailiff Fees Act which failed to regulate the status of public bailiffs and their legal position and their remuneration although they had indisputably suffered damages. All of this is in contradiction with Article 91, paragraph 3 of the Constitution of the Republic of Croatia which prescribes that “the law whose application requires financial means has to foresee the source of those financial means”. - Until the definitive decision on the repeal of the public bailiff service there was a “satanisation and demeaning of public bailiffs also by the heads of public authorities” which constituted discrimination towards a “group of citizens who only wanted to professionally perform an occupation existing in the majority of the countries with a developed democracy”. - The applicant also referred to Article 17.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Articles 53 and 54 of the Charter on Fundamental Rights of the European Union. - Part of the Enforcement Act which determines a "direct charge through the Financial Agency" was contrary to Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The applicant concluded that by adopting the disputed laws, the “Croatian parliament has violated the Treaty on Accession to the European Union” and "violated the rights of public bailiffs regarding the fundamental values protected by the Constitution of the Republic of Croatia, the regulations of the Convention for the Protection of Human Rights and the Charter on Fundamental Rights of the European Union" and proposed the quashing of the disputed laws. The Constitutional Court dismissed the proposals to undertake a constitutional review of the Enforcement Act, the Act on Repealing the Public Bailiffs Act, and the Act Repealing the Public Bailiff Fees Act. The Court explained that the legislator had the right to choose appropriate legislative models to regulate certain social relations. The legislator should also strike an appropriate balance between achieving a goal in the general and public interest on the one hand and protecting the persons appointed as public bailiffs on the other. Failure to do so violated the principles of legal certainty and legal predictability at the expense of individuals. This also violated both the principle of the rule of law and the legitimate expectations of persons relying on the laws. Through the direct legislative intervention of the legislator, previously appointed public bailiffs were left without court protection of their rights and, from the aspect of their constitutional rights, it is not enough that they would be able to obtain remuneration for the damages inflicted on them in regular procedures before courts. This situation should have been solved by appropriate solutions to establish a just balance between general, communal interests and protection of the rights of the appointed public bailiffs in the laws themselves, which was not the case here. The Constitutional Court dismissed the applicant’s proposal in the part relating to alleged discrimination because the applicant failed first to use the legal remedies prescribed by the Anti-discrimination Act (Zakon o suzbijanju diskriminacije). The Constitutional Court did not deliberate on the applicant’s objections of violation of the Treaty on Accession because in the Communication from the Commission to the European Parliament and the Council on the Monitoring Report on Croatia's accession preparations of 26 March 2013, the European Commission had determined that the Republic of Croatia had fulfilled all the obligations undertaken in Chapter 23 – Judiciary and Fundamental Rights. Regarding the applicant’s reference to the Convention for the Protection of Human Rights and Fundamental Freedoms, the Court could not deliberate on the objection on the basis of Article 17 of the Convention because the applicant did not specify which material rights protected by the Convention his objection on the basis of Article 17 referred. In relation to the applicant’s claim related to Council Regulation 44/2001 of 22 December 2000, the Court determined that these claims were not directly related to the disputed laws and were not applicable in this Constitutional Court procedure. Regarding the applicant’s reference to Articles 53 and 54 of the Charter of Fundamental Rights of the European Union, the Court stated that as it was still not in force in the Republic of Croatia, the applicant could not refer to it in this Constitutional Court procedure. Besides, the applicant did not specify to which material rights protected by the Charter his objection referred. Finally, the Constitutional Court dismissed the application for constitutional review on the grounds that the Court did not have jurisdiction in this case (Article 32 of the Constitutional Act on the Constitutional Court of the Republic of Croatia).
Articles 53 and 54 of the Charter of Fundamental Rights of the European Union, Official Journal of the European Union EN 2007/C, 14. 12. 2007, 1-16 state: “Article 53 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States' constitutions. Article 54 Prohibition of abuse of rights Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.” The Constitutional Court finally emphasises that the Charter of Fundamental Rights is still not in force in the Republic of Croatia and that the applicant cannot refer to it in this Constitutional Court procedure. Despite this fact, the Constitutional Court notes that this objection can also be replied to in the same way as was the objection referring to Article 17 of the Convention.