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CROATIAN PARLIAMENT

629

Pursuant to Article 131 of the Constitution of the Republic of Croatia, the Croatian Parliament, at its session held on 15 March 2002, passed a

DECISION

ON THE PROCLAMATION OF THE CONSTITUTIONAL LAW ON AMENDMENTS TO THE CONSTITUTIONAL LAW ON THE CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA

The Constitutional Law on Amendments to the Constitutional Law on the Constitutional Court of the Republic of Croatia, passed by the Croatian Parliament at its session on 15 March 2002, is hereby proclaimed.

Class: 711-01/01-01/03

Zagreb, 15 March 2002

CROATIAN PARLIAMENT

Speaker

of the Croatian Parliament

Zlatko Tomcic, signed

CONSTITUTIONAL LAW

ON AMENDMENTS TO THE CONSTITUTIONAL LAW ON THE CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA

Article 1

In the Constitutional Law on the Constitutional Court of the Republic of Croatia ("Official Gazette", No. 99/99), in Article 1, after the wording: "regulate the conditions" the wording: "and the procedure" is added, and the wording: "constitutional freedoms and rights of man and citizen" are replaced with the wording: "human rights and fundamental freedoms guaranteed by the Constitution."

Article 2

After Article 1, Article 1a is added, which reads:

"Article 1a

(1) The Constitutional Court shall guarantee the respect and application of the Constitution of the Republic of Croatia and it shall base its activity upon the provisions of the Constitution of the Republic of Croatia and the Constitutional Law on the Constitutional Court of the Republic of Croatia.

(2) The Constitutional Court shall be independent of all bodies of state authorities, and it shall independently dispose of the means determined in the state budget, in compliance with its annual budget and the law, for the purpose of functioning of the activity of the Constitutional Court.

(3) The internal structure of the Constitutional Court shall be regulated by the Standing Orders of the Constitutional Court of the Republic of Croatia (hereinafter: the Standing Orders).

(4) The President of the Constitutional Court shall attend to the application of the Standing Orders. The interpretation of the Standing Orders shall be provided by the Constitutional Court."

Article 3

In Article 3, Paragraph 1, the wording: "Croatian State Parliament" is replaced with the wording: "Croatian Parliament", and in Paragraph 2, a coma and the wording: "detained or punished" are added after the wording: "criminal responsibility".

Article 4

Article 4 is erased.

Article 5

Paragraph 3 in Article 5 is erased.

Article 6

After Article 5, Article 5a is added, which reads:

"Article 5a

(1) The procedure of election of the judges of the Constitutional Court shall be initiated by the committee of the Croatian Parliament competent for the Constitution (hereinafter: the competent committee), by publishing an invitation in the "Official Gazette" to judicial institutions, law schools, the Bar Association, lawyers’ associations, political parties and other legal persons and individuals, to propose candidates for the election of one or more judges of the Constitutional Court (hereinafter: the invitation). An individual may propose himself as a candidate, as well.

(2) The invitation shall contain the conditions for the election of judges of the Constitutional Court, determined by the Constitution and this Constitutional Law, the deadline for submission of the proposal of candidates to the competent committee, and the enclosures which shall be delivered alongside the proposal.

(3) After the expiration of the deadline as per Paragraph 2 of this Article, the competent committee shall examine whether the candidates fulfil the conditions for the election of judges of the Constitutional Court, determined by the Constitution and this Constitutional Law, and it shall reject the invalid candidacies.

(4) The competent committee shall conduct a public interview with every candidate who fulfils the conditions for the election of a judge of the Constitutional Court and, on the basis of the compiled data and the results of the interview, it shall compile a short list of candidates for judges of the Constitutional Court. The list of candidates shall, as a rule, contain more candidates than the number of judges of the Constitutional Court being elected.

(5) The competent committee shall, along with its proposal, deliver to the Croatian Parliament the list of all candidates who fulfil the conditions for election of a judge of the Constitutional Court. The proposal of the competent committee shall contain the explanation from which it is evident why an individual candidate has been given the preference over other candidates by the committee.

(6) The representatives of the Croatian Parliament shall vote on each proposed candidate individually.

(7) The proposed candidate for a judge of the Constitutional Court shall be considered an elected judge of the Constitutional Court if the majority of the total number of representatives of the Croatian Parliament has voted for him."

Article 7

In Article 11, Paragraph 1, the wording: "the House of Representatives of the Croatian State Parliament" is replaced with the wording: "Croatian Parliament", and the wording: "at the request of the President or a judge of the Constitutional Court, the Constitutional Court shall determine that his mandate has ceased" is replaced with the wording: "the duty of a judge of the Constitutional Court shall cease by force of the Constitutional Law upon the expiration of the deadline of three months from the day of submission of the request."

In Paragraph 2, the wording: "Croatian State Parliament" is replaced with the wording: "Croatian Parliament’.

Article 8

In Article 24, Paragraph 1, the wording: "Every natural and legal person shall be obliged" is replaced with the wording: "All shall be obliged".

After Paragraph 1, Paragraph 2 is added, which reads:

"(2) Exceptionally, in case of non-compliance with a repeated request of the Constitutional Court as per Paragraph 1 of this Article, the Constitutional Court may order the seizure of documents."

Article 9

In Article 26, Paragraph 5, the wording: "drafting of a decision" is replaced with the wording: "drafting of a decision or a ruling."

Article 10

Article 28 is amended and reads:

"(1) The decisions and major rulings of the Constitutional Court, passed in the procedure of assessment of the conformity of a law with the Constitution, that is, the conformity of other regulations with the Constitution and the law, and the decisions and rulings passed in the Constitutional Court’s proceedings for the protection of human rights and basic freedoms guaranteed by the Constitution, shall be published in the "Official Gazette". Should a number of decisions and rulings be based on the same legal basis and the same or similar factual situation, only one decision, that is, ruling, shall be published.

(2) The Session of the Constitutional Court shall decide on the publication of other acts of the Constitutional Court."

Article 11

In Article 34, Sub-paragraph 1, the wording: "the House of Representatives or one fifth of the representatives of the House of Counties of the Croatian State Parliament" is replaced with the wording: "the Croatian Parliament".

In Sub-paragraph 5, after the wording: "Supreme Court of the Republic of Croatia", the wording: "or another court" is added, and the wording: "before courts" is replaced with the wording: "conducted before that court."

Sub-paragraph 7 is erased.

Article 12

After Article 34, Article 34a is added, which reads:

"Article 34a

(1) Should the representative body of a local or regional self-government unit in the Republic of Croatia consider that the law regulating the organisation, scope of activities or financing of local and regional self-government units is not in conformity with the Constitution, it shall have the right to submit a request to the Constitutional Court for the assessment of conformity of that law or individual provisions thereof with the Constitution.

(2) The Constitutional Court shall be obliged to decide on a request as per Paragraph 1 of this Article using emergency procedure, and no later than within 30 days from the day of receipt of the request."

Article 13

Article 35 is amended and reads:

"(1) Should a court determine in a procedure that a law which should be applied, that is, its individual provision, are not in compliance with the Constitution, it shall stay the procedure and submit a request to the Constitutional Court for the assessment of conformity of the law, that is, of its individual provision with the Constitution.

(2) Should a court determine in a procedure that another regulation which it should apply, that is, its individual provision, are not in compliance with the Constitution and the law, it shall directly apply the law to the specific case, and it shall submit a request to the Constitutional Court for the assessment of conformity of the disputable regulation, that is, of its individual provision, with the Constitution and the law.

(3) The Constitutional Court shall inform the Supreme Court of the Republic of Croatia on the submitted requests as per Paragraphs 1 and 2 of this Article."

Article 14

In Article 37, after Paragraph 2, Paragraph 3 is added, which reads:

"(3) The disputable act shall be enclosed with a request for the initiation of the procedure of assessment of constitutionality and legality of another regulation.

Article 15

In Article 38, after Paragraph 1, Paragraph 2 is added, which reads:

"(2) The Constitutional Court shall initiate a procedure not later than within one year from the submission of the proposal."

Article 16

In Article 44, Paragraphs 1 and 2, the word: "report" is replaced with the wording: "a draft decision or ruling".

Article 17

In Article 45, Paragraph 1, the wording: "report or" is erased.

In Paragraph 2, the word: "secretary" is replaced with the wording: "secretary general."

Article 18

In Article 46, Paragraphs 1 and 5, the word: "report" is replaced with the wording: "draft decision or ruling."

Article 19

Article 53 is amended and reads:

"(1) The Constitutional Court shall repeal a law or its individual provisions, should it determine that it is not in conformity with the Constitution, that is, another regulation or its individual provisions, should it determine that it is not in conformity with the Constitution and the law.

(2) The repealed law and another regulation, that is, their repealed provisions, shall cease to be valid on the day of publication of the decision of the Constitutional Court in the "Official Gazette", unless the Constitutional Court determines another deadline.

(3) The Constitutional Court may annul a regulation, that is, its individual provisions, by taking into consideration all circumstances of importance to the protection of constitutionality and legality, and bearing in mind the severity of the violation of the Constitution or law in particular, as well as the interest of legal safety:

- if it violates human rights and basic freedoms guaranteed by the Constitution,

- if it unfoundedly puts individuals, groups or associations in a more favourable or unfavourable position."

Article 20

Article 54 is erased.

Article 21

After Article 54, Article 54a is added, which reads:

"Article 54a

(1) The Constitutional Court may assess the constitutionality of a law and the constitutionality and legality of another regulation, that is, of their individual provisions, although they have ceased to be valid, if no more than one year has passed from that cessation to the submission of a request or proposal for the initiation of a procedure.

(2) When it has determined unconstitutionality in the procedure of assessment, or illegality of an act as per Paragraph 1 of this Article, the Constitutional Court shall pass a decision on the establishment of unconstitutionality of a law or unconstitutionality and illegality of another regulations, that is, of their individual provisions.

(3) In the case as per Paragraph 2 of this Article, the provisions of Articles 56 and 56a of this Constitutional Law shall be appropriately applied."

Article 22

Article 56 is amended and reads:

"(1) A final verdict for a criminal act based on the provision of the law which has been repealed due to the non-compliance with the Constitution, shall not produce legal effects from the day of coming into effect of the decision of the Constitutional Court on the repeal of the legal provision based on which the verdict was passed and it may be changed through appropriate application of the provisions on the renewal of the criminal procedure.

(2) Every natural and legal person who submitted to the Constitutional Court a proposal for the assessment of conformity of an individual legal provision with the Constitution, that is, of an individual provision of another regulation with the Constitution and the law, whereby the Constitutional Court has accepted his proposal and repealed the legal provision, or the provision of another regulation, shall have the right to submit to the competent body a request for the amendment of a final individual act wherein his right was violated and which was passed pursuant to the repealed legal provision, or of the repealed provision of another regulation, through appropriate application of the provisions on the renewal of the procedure.

(3) Every natural and legal person whose right has been violated by a final act passed pursuant to a repealed provision of another regulation, shall have the right to submit a request to the competent body for the amendment of that individual act through appropriate application of the provisions on the renewal of the procedure.

(4) A request for the amendment of a final individual act as per Paragraphs 2 and 3 of this Article, may be submitted within six months from the day of publication of the decision of the Constitutional Court in the "Official Gazette".

(5) In the procedures wherein the legal matter has not been finally decided upon until the day of coming into effect of the decision of the Constitutional Court on the repeal of a law, that is, on the annulment or repeal of another regulation or their individual provision, while that law, or another regulation is being directly applied in that legal matter, the repealed law, that is, another annulled or repealed regulation or their repealed or annulled provision shall not be applied from the day of coming into effect of the decision of the Constitutional Court."

Article 23

After Article 56, Article 56a is added, which reads:

"Article 56a

If the effects of a final court verdict for a criminal act, based on a repealed legal provision, have set in, that is, if the detrimental consequences incurred due to the violation of a party’s right cannot be removed by the amendment of the final individual act as per Article 56, Paragraphs 2 and 3 of this Constitutional Law, the party may submit a request to the competent court within the deadline as per Article 56, Paragraph 4 of this Constitutional Law, for the removal of those consequences through a compensation for damage."

Article 24

After Article 58, the title of Chapter V. "Protection of Freedoms and Rights of Man and Citizen" is amended and reads:

"V. PROTECTION OF HUMAN RIGHTS AND BASIC FREEDOMS"

Article 25

In Article 59, Paragraph 1 is amended and reads:

"(1) Everyone may submit a constitutional complaint to the Constitutional Court if he considers that his human right or basic freedom guaranteed by the Constitution, that is, the right to local and regional self-government guaranteed by the Constitution (hereinafter: the constitutional right) has been violated by an individual act of a state administration body, a body of a local or regional self-government unit or a legal person with public powers, wherein it was decided on his rights or obligations or on a suspicion or accusation for a punishable act."

Paragraph 4 is erased.

Article 26

After Article 59, Article 59a is added, which reads:

"Article 59a

(1) The Constitutional Court shall initiate a procedure pursuant to a constitutional complaint even prior to the exhaustion of the legal remedy, in the case when a party’s rights and obligations or a suspicion or accusation of a punishable act has not been decided upon within a reasonable period of time by a court, or in the case when the disputed individual act severely violates constitutional rights, and it is completely evident that the non-initiation of a Constitutional Court’s procedure could cause serious and irreparable consequences for the submitter of the constitutional complaint.

(2) In the decision wherein it adopts a constitutional complaint due to the non-adoption of an act within a reasonable period of time as per Paragraph 1 of this Article, the Constitutional Court shall determine a deadline for the competent court for the adoption of an act whereby that court shall decide, based on the merit of the thing, on the rights and obligations or on a suspicion or accusation for a punishable act of the submitter. The deadline for the adoption of the act shall start running on the day following the day of publication of the decision of the Constitutional Court in the "Official Gazette".

(3) In the decision as per Paragraph 2 of this Article, the Constitutional Court shall determine an appropriate compensation which belongs to the submitter due to the violation of his constitutional right made by a court when it failed to decide on the submitters’ rights and obligations or on the suspicion or accusation for his punishable act, within a reasonable period of time. The compensation shall be paid from the state budget within three months from the day of submission of the request by the party for its payment."

Article 27

In Article 61, Paragraph 1, the wording: "the decision violating a right or freedom" is replaced with the wording: "the disputed decision", and the wording: "or freedom, which was violated" is replaced with the wording: "claimed to have been violated with an indication of the relevant provision of the Constitution, wherein that right is guaranteed."

Article 28

Article 64 is amended and reads:

"(1) A constitutional complaint shall be decided upon by a panel consisting of six judges.

(2) A panel comprising three judges shall decide on constitutional complaints when there are no procedural preconditions for decision-making (untimeliness, having no authorisation for the submission of a constitutional complaint, inadmissibility etc.).

(3) A panel may pass only unanimous decisions and only with full attendance.

(4) Should a panel not reach unanimity or should a panel consider that the subject of a constitutional complaint has broader significance, the constitutional complaint shall be decided upon by the Session of the Constitutional Court."

Article 29

In Article 65, Sub-paragraph 3, the wording: "and freedom" is erased.

Article 30

In Article 67, Paragraph 1, the wording: "and freedom" is erased.

After Paragraph 1, Paragraphs 2 and 3 are added, which read:

"(2) A constitutional complaint shall not be taken into consideration in a case which does not involve the violation of a constitutional right.

(3) A decision as per Paragraph 2 of this Article shall be passed by a panel comprising three judges. Should the panel not pass a unanimous decision, the decision shall be passed by a panel comprising six judges, that is, by the Session of the Constitutional Court."

Article 31

In Article 68, the wording: "and freedom" is erased.

Article 32

In Article 70, the wording: "or freedom" is erased.

Article 33

Article 72 is amended and reads:

"(1) The Constitutional Court shall repeal a disputed act which has violated a constitutional right, by a decision on the adoption of the constitutional complaint.

(2) If the competent judicial or administrative body, a body of a local and regional self-government unit or a legal person with public powers are obliged to pass a new act instead of the act which was repealed by a decision as per Paragraph 1 of this Article, the Constitutional Court shall return the case for a renewed procedure to the body which passed the repealed act. If the law stipulating the competence for procedure in that legal matter has changed prior to the adoption of the decision of the Constitutional Court, the body which conducted the procedure and passed the repealed act shall be obliged to deliver the case to the competent body without delay.

(3) In case a disputed act which has violated the submitter’s constitutional right no longer produces legal effects, the Constitutional Court shall determine its unconstitutionality in a decision, by stating in the statement of the decision the submitter’s constitutional right violated by that act."

Article 34

In Article 73, Paragraph 1, after the wording: "constitutional right", the coma and the wording: "or freedom" are erased.

Paragraph 2 is amended and reads:

"(2) In the process of adoption of a new act as per Article 72, Paragraph 2 of this Constitutional Law, the competent judicial or administrative body, a body of a local and regional self-government unit or a legal person with public powers shall be obliged to respect the legal positions of the Constitutional Court expressed in the decision on the repeal of the act whereby the constitutional right of the submitter of the constitutional complaint was violated."

Article 35

Article 78, Paragraph 3 is amended and reads:

"(3) A request shall be submitted within 30 days from the day of a court’s decision becoming final, from the day of a decision of a body of executive authorities becoming final, or from the day of adoption of an appropriate decision of a legislative body as per Paragraph 1 of this Article, proclaiming another body of state authorities unauthorised."

Article 36

Article 82 is erased.

Article 37

In Article 83, the wording: "each House of the Croatian State Parliament" is replaced with the wording: "the Croatian Parliament".

Article 38

After Article 91, Article 91a is added, which reads:

"Article 91a

(1) At the request of the Croatian Parliament, the Constitutional Court shall determine, in the case when ten percent of the total number of voters in the Republic of Croatia have requested the calling of a referendum, whether the content of the referendum issue is in compliance with the Constitution and whether the preconditions as per Article 86, Paragraphs 1 to 3 of the Constitution of the Republic of Croatia for its calling have been fulfilled.

(2) The Constitutional Court shall pass a decision as per Paragraph 1 of this Article within 30 days from the day of receiving the request."

Article 39

After Chapter IX., a new Chapter X and Articles 92a, 92b, 92c, 92d, 92e, 92f and 92g, a new Chapter XI and Article 92h, and a new Chapter XII and Article 92i are added, which read:

"X. PROCEDURE ON THE OCCASION OF APPEAL AGAINST A DECISION ON THE RELIEF OF A JUDGE FROM DUTY AND A DECISION ON THE DISCIPLINARY RESPONSIBILITY OF A JUDGE

(APPEAL PROCEDURES OF THE CONSTITUTIONAL COURT)

Article 92a

(1) A judge (hereinafter: the appellant) shall have the right to appeal to the Constitutional Court against a decision on the relief of a judge from duty within 15 days from the day of delivery of the disputed decision.

(2) A Constitutional Court Panel comprising six judges shall decide on an appeal as per Paragraph 1 of this Article by the majority of votes.

(3) A disputed decision shall be repealed by the Constitutional Court’s decision on the adoption of the appeal as founded, and the case shall be returned to the State Judicial Council for a renewed procedure.

(4) In the case as per Paragraph 3 of this Article, the State Judicial Council shall be obliged to pass another decision instead of the repealed one, whereby it shall be bound in the Constitutional Court decision on repeal by the expressed legal standpoints of the Constitutional Court on the violation of the appellant’s constitutional rights.

Article 92c

(1) In the appeal procedures of the Constitutional Court as per Articles 92a and 92b of this Constitutional Law, an appellant may be represented by a lawyer, and the State Judicial Council (hereinafter: the decision-maker) shall be represented by the President of the State Judicial Council or a member thereof, who shall be authorised by the President, pursuant to a special authorisation, for representation before the Constitutional Court.

(2) In an appeal procedure of the Constitutional Court, the appellant and the decision-maker shall have the right to delivery of all submissions of the other party which have been received by the Constitutional Court, and to a written statement on them.

(3) An appellant shall have the right to propose to the competent Panel of the Constitutional Court the persons who would, in his opinion, contribute by their statements to the adoption of a Constitutional Court’s decision in his favour. The Constitutional Court Panel shall, in that case, request a written statement from the proposed persons, to which the decision-maker shall have the right of a written response.

Article 92d

The right of the Constitutional Court Panel to assess the existence or non-existence of facts on which the assessment on the violation of a appellant’s right depends, shall not be bound or limited by special formal rules of evidence.

Article 92e

(1) The Constitutional Court Panel shall be obliged to pass a Constitutional Court decision or ruling on an appeal as per Article 92a and Article 92b of this Constitutional Law within 30 days from the day of its receipt.

(2) In complex appeal procedures of the Constitutional Court, in which the appellant, that is, the decision-maker, requests an appropriate period of time and a possibility for the preparation of a written statement to a submission of the other side, or when there is a need of providing the appellant, that is, the decision-maker, with the right to a written statement on a major part of submissions of the other side, including written statements of persons as per Article 92c, Paragraph 3 of this Constitutional Law, the 30-day deadline for the adoption of the Constitutional Court’s decision on the appeal shall begin on the day of receipt of the last submission of the appellant.

Article 92f

The Constitutional Court’s decision or ruling of the Constitutional Court on the judges’ appeals as Paragraph Articles 92a and 92b of this Constitutional Court shall exclude the right to a constitutional complaint by the appellants.

Article 92g

(1) The candidates in the procedure of appointment may submit a constitutional complaint against a decision of the State Judicial Council on the appointment of judges, after the exhaustion of the legal remedy conducted before the Administrative Court of the Republic of Croatia at the request submitted pursuant to special provisions of the Law on Administrative Disputes on the protection of the constitutionally guaranteed rights and freedoms of man and citizen.

(2) Paragraph 1 of this Article shall also be applied to the persons who participated in the procedure before the State Judicial Council.

XI. MONITORING OF THE EXERCISE OF CONSTITUTIONALITY AND

LEGALITY

Article 92h

(1) The Constitutional Court shall monitor the exercise of constitutionality and legality, and report to the Croatian Parliament on the noted occurrences of unconstitutionality and legality [sic] illegality?

(2) The report as per Paragraph 1 of this Article shall be determined by the Session of the Constitutional Court.

(3) The report as per Paragraph 1 of this Article shall be delivered in writing to the Speaker of the Croatian Parliament, who shall report to the Croatian Parliament thereof.

XII. SUPERVISION OVER THE ADOPTION OF THE REGULATIONS FOR THE EXECUTION OF THE CONSTITUTION, LAW AND OTHER REGULATIONS

Article 92i

(1) When the Constitutional Court has established that the competent body had not adopted a regulation for the execution of the provisions of the Constitution, laws and other regulations, it shall inform the Government of the Republic of Croatia about it.

(2) When the Constitutional Court has established that the Government of the Republic of Croatia had not adopted a regulation on the execution of the provisions of the Constitution, laws and other regulations, it shall inform the Croatian Parliament about it.

(3) The report as per Paragraph 1 of this Article shall be delivered in writing to the Prime Minister of the Republic of Croatia, and the report as per Paragraph 2 of this Article, to the Speaker of the Croatian Parliament.

(4) The Session of the Constitutional Court shall decide on the publication of the reports as per Paragraphs 1 and 2 of this Article in the "Official Gazette."

Article 40

Article 93 is erased.

Article 41

Throughout the entire text of the Constitutional Law on the Constitutional Court of the Republic of Croatia, the wordings: "House of Representatives", "House of Representatives of the Croatian State Parliament" and "Croatian State Parliament" are replaced, in the appropriate grammatical case, with the wording: "Croatian Parliament", in the appropriate grammatical case, and the wording: "local self-government and administration", in the appropriate grammatical case, is replaced with the wording: "local and regional self-government", in the appropriate grammatical case.

Article 42

This Constitutional Law shall come into force on the day of its proclamation.

Class: 711-01/01-01/03

Zagreb, 15 March 2002

CROATIAN PARLIAMENT

Speaker

of the Croatian Parliament

Zlatko Tomcic, signed