engleski

Judicial Review and Separation of Powers in Croatia in light of German Experience

In many aspects constitutional jurisdiction in Croatia is similar to the German one - at least in formal sense. However, more than fifty years of development of political institutions, and especially of the jurisprudence of the Bundesverfassungsgericht have contributed to an evolution of the original Constitutional setting. The German Constitutional Court has strongly affirmed its position within the constitutional separation of powers system to the extent which has not only once prompted legal scholars to express their concern about the Court� s excessively active role. The Croatian Constitutional Court is still at the beginning of its self-determination. For the time being, its position in the separation of powers system is still considerably weaker then the one of the Bundesverfassungsgericht, especially in respect of the legislature. The same counts for substantive and procedural aspects of that relationship. In the substantive sense, the Croatian Constitutional Court has proven its readiness to exercise its constitutional powers and to quash legislation. However, it was much less ready to engage in judicial law-making. In that respect it is noteworthy that German practice of Verfassungskonforme Auslegung is not being applied in Croatia. Yet, another difference can be found in consequences which the respective Constitutional Courts have drawn from their practice. While in Germany constitutional complaint as against a law is permissible, and an established violation of fundamental rights by a law which is not a part of constitutional order results in annulment of such a law, Croatian Court has not pushed the ball so far. Laws can not be attacked in the constitutional complaint procedure, but can be set aside (not annulled) pursuant to the abstract review procedure which is set forth in Article 125(1) of the Constitution. Theoretically, a party claiming her rights to be violated by an unconstitutional law would have to initiate a separate proceedings. The constitutional complaint itself may not serve that purpose. Anyway, the Court has not yet faced such a problem in practice. Some of the differences between German and Croatian constitutional jurisdiction can be explained by the different constitutional framework. Namely, despite of an undisputed German influence in the area of constitutional jurisdiction, the Croatian Constitution as a whole significantly differs from the German Basic Law. To be completely honest it has to be said that many basic constitutional principles and choices such as the principle of separation of powers and comprehensive guarantees of fundamental rights, as well as its underlying philosophy do not directly relate to any foreign Constitution, but are reflection of liberal-democratic ideals. Another explanation for a non-activist attitude of the Croatian Constitutional Court may be in the dominantly civil-law legal background of the majority of its judges. It could indeed be argued that interpretative methods applied in civil law cases are more likely to result in judicial self-restraint then in judicial activism. In final analysis, the Croatian Constitutional Court still does not seem to be very activist. In addition to the above mentioned reasons, its practice has so far not been subject to a considerable kind of criticism partly because of the constitutional definition of its powers, and partly because of its recourse to conservative interpretation methods. Also, the Court's attitude towards the Parliament seems to be permeated by the traditional concept of judiciary which prevails in Croatian legal theory, according to which courts play only a limited law-making role. On the other hand, certain developments in Croatian constitutional jurisprudence go hand by hand with German ones - or at least in the same direction. The Croatian Constitutional Court has already shown its readiness to interpret Constitutional provisions in broad terms. A clear example is the broad interpretation of grounds for bringing a constitutional complaint. The system which was used is at the same time both similar and different to the one employed by the Bundesverfassungsgericht. Both courts understand the respective Constitutional guarantees of fundamental rights as comprehensive systems. As a consequence, in both instances subsidiary protection is granted against infringements of broadly defined guarantees, specified by Article 2 Abs. 1 of the German and Article 3 of the Croatian Constitution, respectively. In both cases broad interpretation of the respective constitutional provisions has created an inherent tension between the normative reading of the Constitution as an exhaustive set of guarantees and the "catchall" function of the respective single constitutional provisions. In the both cases a recourse to natural rights is being denied, but the Constitution is being so broadly construed that one has to ask himself whether the difference really matters in practice? Albeit legal tradition plays a part in defining the position of the Croatian Constitutional Court within the Constitutional separation of powers system, one should not overestimate its role. Wasn� t the landmark Elfes case decided on January 16th 1957 - more than five years after establishment of the Bundesverfassungsgericht? Was not and is still not judicial activism of the Bundesverfassungsgericht subject to bitter criticism in Germany? In that sense five years represent a short period. Just about the eve of 1997 the Croatian Constitutional Court has unpacked and shelved the 94 volumes collection of case law of the Bundesverfassungsgericht. It will be interesting to see whether German constitutional jurisprudence will be as important for the development of judicial review in Croatia as it was the case with the German Constitution.

constitutionalism; constitutional court; croatia; constitutional review

nije evidentirano