THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-I-2694/2003
Zagreb, 28 January 2004
The Constitutional Court of the Republic of Croatia, composed of Petar Klaric,
President of the Court and Judges Marijan Hranjski, Mario Kos, Ivan Matija, Jasna
Omejec, Zeljko Potocnjak, Agata Racan, Emilija Rajic, Smiljko Sokol, Nevenka
Sernhorst, Vice Vukojevic and Milan Vukovic, deciding on the proposal to institute
proceedings to review the constitutionality of a law, at the session held on 28 January
2004, rendered the following
RULING
I.
The proposal to institute proceedings to review the constitutionality of
the Family Act (Narodne novine, No. 116/03) in its entirety is hereby refused.
II.
This ruling shall be published in the Official Gazette of the Republic of
Croatia Narodne novine.
Statement of reasons
1.
Petar M. Radelj from Zagreb submitted a proposal to institute proceedings to
review the constitutionality of the Family Act (Narodne novine, No. 116/03) in its
entirety.
2.
The applicant points out, deeming that the Family Act is an organic law, that its
enactment required a majority vote of all the members of the Croatian Parliament,
pursuant to Article 82 paragraph 2 of the Constitution of the Republic of Croatia.
Explaining his view that the disputed Act is an organic law, the applicant states that
the Family Act elaborates numerous constitutionally guaranteed human rights and
freedoms, in particular those contained in Articles 32, 34, 35, 40, 56, 61, 62, 63 and
64 of the Constitution.
The applicant states that 85 members of parliament attended the sitting of the
Croatian Parliament at which the Family Act was enacted (14 July 2003), out of which
71 members voted «for» the Family Act, and 14 members «abstained» from voting.
In the applicant’s opinion, 76 MPs should have voted for this Act, since the Croatian
Parliament had a total of 151 members in that session.
Based on the above, the applicant deems that the Family Act was enacted by a
lesser number of votes than the number set by the Constitution as necessary and
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sufficient for enacting organic laws. Asserting the formal unconstitutionality of the
Family Act, the applicant consequently proposes that the Constitutional Court
institutes proceedings to review its constitutionality and repeals it in its entirety.
3.
Alternatively, the applicant disputes the provisions of the Family Act that
contain the words «divorce of a marriage». In the reasons for this proposal, the
applicant in essence points out that after its enactment the disputed Family Act shall
apply to all pending divorce proceedings, which is in the applicant's opinion not
possible because of the «terminological discord» between the Family Act and acts
regulating judicial competence in proceedings for the «dissolution of a marriage».
The applicant gives a detailed elaboration of the «historical-legal» and «linguistic»
grounds against the institute of «divorce » and concludes that the term “divorce” is
contrary to Article 12 paragraph 1 and Article 5 paragraph 1 of the Constitution.
The proposal is not well-founded.
4.
The Croatian Parliament enacted the Family Act at the sitting held on 14 July
2003. The Act was published in Narodne novine, No. 116 of 22 July 2003, and it
entered into force on the day of its publication.
5.
The phonogram of the mentioned sitting of the Croatian Parliament, which is
attached to the file, shows that eighty-five (85) members voted when the Family Act
was being passed in Parliament. It also shows that seventy-one (71) members voted
for its enactment and fourteen (14) members abstained from voting.
Furthermore, the Constitutional Court has found that the Croatian Parliament had one
hundred and fifty-one (151) members in its session of 2000, so the enactment of a
law requiring a majority vote of all the members required a majority of seventy-six
(76) votes.
6.
Heading III, Section 3 of the Constitution, under the title «Economic, Social
and Cultural Rights», contains the constitutional provisions important for considering
the legal nature of the Family Act as a whole and for evaluating its formal
un/constitutionality, and it reads:
"Article 61
The family shall enjoy special protection of the State.
Marriage and legal relations in marriage, common-law marriage and families
shall be regulated by law.
Article 62
The State shall protect maternity, children and young people, and shall create
social, cultural, educational, material and other conditions promoting the right to a
decent life.
Article 63
Parents shall have the duty to bring up, support and educate their children,
and shall have the right and freedom to decide independently on the upbringing of
their children.
Parents shall be responsible for ensuring the right of their children to a full and
harmonious development of their personalities.
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Physically and mentally disabled and socially neglected children shall have the
right to special care, education and welfare.
Children shall be bound to take care of their old and helpless parents.
The State shall take special care of parentless minors or parentally neglected
children.
Article 64
Everyone shall have the duty to protect children and helpless persons.
Children may not be employed before reaching the legally determined age,
nor may they be forced or allowed to do work which is harmful to their health or
morality.
Young people, mothers and disabled persons shall be entitled to special
protection at work.".
7.
Article 82 paragraph 2 of the Constitution lays down the following:
“Laws (organic laws) which elaborate the constitutionally defined human rights
and fundamental freedoms, the electoral system, the organization, authority and
operation of government bodies and the organization and authority of local and
regional self-government shall be passed by the Croatian Parliament by a majority
vote of all the members of parliament.”
8.
The Constitutional Court, in examining the grounds for the proposal to review
the constitutionality of the Family Act from the aspect of its formal constitutionality,
started from its stand expressed in decision No: U-I-2566/2003, U-I-2892/2003 of 27
November 2003, published in Narodne novine, No. 190/03.
In this decision the Constitutional Court set the criteria for evaluating which law,
whose provisions elaborate the constitutionally determined human rights and
fundamental freedoms, shall be considered an organic law in the context of the first
part of the sentence of Article 82 paragraph 2 of the Constitution. Therefore, the
following is cited:
"Heading III of the Constitution, entitled »Protection of human rights and
fundamental freedoms«, is divided in the following sections:
1. General Provisions (Articles 14 to 20),
2. Personal and Political Freedoms and Rights (Articles 21 to 47), and
3. Economic, Social and Cultural Rights (Articles 48 to 69).
If we view the content of all the provisions contained in Heading III of the
Constitution, then it can be shown that almost all laws at least partially elaborate
some human right or fundamental freedom in a certain number of provisions.
Pursuant to this, every or almost every law enacted by the Croatian Parliament might
be classified as an organic law.
However, such a broad constitutional interpretation would completely
eradicate the difference between an «ordinary» law and an organic law, which was
obviously not the intention of the constitution-maker when he shaped the normative
content of the first part of the sentence in Article 82 paragraph 2 of the Constitution.
Therefore, the answer to the question, which of the laws – whose provisions
elaborate to a different extent particular constitutionally regulated human rights and
fundamental freedoms - should be considered an organic law, should be limited to the
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area of freedom, equality and respect for human rights, as the fundamental
constitutional values prescribed in Article 3 of the Constitution. Their content – unlike
the economic, social and cultural rights – is determined by the Constitution itself and
is individualized by guaranteed legal protection at the national and international level.
Proceeding from the above, an organic law, which elaborates constitutionally
determined rights and fundamental freedoms in the sense of the first part of the
sentence in Article 82 paragraph 2 of the Constitution, is only the law whose main
object of regulation is one or more particular, constitutionally regulated, personal and
political right(s) and human freedom(s). Whether the preconditions to designate a
certain law as organic have been fulfilled, in the sense of the first part of the sentence
in Article 82 paragraph 1 of the Constitution, is examined – in case of doubt –
separately in each specific case."
9.
Pursuant to the constitutional provisions, the Family Act regulates marriage,
parent-child relations, adoption, custody, the effects of common-law marriage
between a man and a woman, and the proceedings of competent bodies in
connection with family relations and custody (Article 1 of the Family Act).
It is therefore evident that the Family Act elaborates human rights and fundamental
freedoms established in Heading III of the Constitution. However, proceeding from
the stand of this Court related to the issue of which law, whose provisions elaborate
certain constitutionally determined human rights and fundamental freedoms, is to be
considered an organic law within the meaning of the first part of the sentence in
Article 82 paragraph 2 of the Constitution (point 4 of the ruling), and the fact that the
Constitution classifies the rights regulated by the Family Act as social rights, the
Constitutional Court finds that the Family Act is not an organic law whose enactment
requires a majority vote of all the members of the Croatian Parliament, pursuant to
Article 82 paragraph 2 of the Constitution.
10.
The provision of Article 81 paragraph 1 of the Constitution reads:
"Unless otherwise specified by the Constitution, the Croatian Parliament shall
make decisions by a majority vote, provided that a majority of members are present at
the sitting."
The Constitutional Court finds that the Family Act was enacted in the procedure
compliant with the constitutional provisions, based on the facts determined by
inspecting the phonogram from the sitting of the Croatian Parliament, held on 14 July
2003, at which the Family Act was enacted (point 3).
11.
The applicant alternatively disputes the provisions of the Family Act containing
the word «divorce», pointing out that these provisions are contrary to Article 12
paragraph 1 of the Constitution, which prescribes that the Croatian language and
Latin script are in official use in the Republic of Croatia, and Article 5 paragraph 1 of
the Constitution, pursuant to which all laws in the Republic of Croatia have to be in
conformity with the Constitution, and other regulations in conformity with the
Constitution and the law.
12.
In respect of this part of the proposal, the Constitutional Court points out the
following:
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In regulating the ways of terminating a marriage, the disputed Family Act has
replaced the former wording «dissolution of a marriage» by the wording «divorce of a
marriage». The Constitutional Court finds that the legislator is authorised to
determine legal wording in the elaboration of certain statutory institutes, as in the
case of the legal terms «dissolution of a marriage» or «divorce of a marriage», and
that these may not be subject to constitutional-court evaluation.
It is necessary for identical legal institutes to be designated by the same legal terms
in all the laws in which they appear for the purpose of ensuring the principle of the
rule of law, in particular the principle of legal security and certainty. However, the
harmonization of legal terms is not within the competence of the Constitutional Court,
but the legislator.
Therefore, the Constitutional Court also finds this part of the proposal ill-founded,
deeming that the provisions of the Family Act containing the word «divorce » are not
contrary to the constitutional provisions to which the applicant referred.
13.
Pursuant to the above, the Constitutional Court has ruled as in point I of the
dictum, pursuant to Article 43 paragraph 1 of the Constitutional Act on the
Constitutional Court of the Republic of Croatia (Narodne novine, No. 49/02 –
consolidated text).
14.
Publication of the ruling (point II of the dictum) is founded on Article 29
paragraph 1 of the Constitutional Act on the Constitutional Court of the Republic of
Croatia.
PRESIDENT
Petar Klaric, LLD, m. p.
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Pursuant to Article 27 paragraph 4 of the Constitutional Act on the
Constitutional Court of the Republic of Croatia, and Articles 50 and 51 of the Rules of
Procedure of the Constitutional Court of the Republic of Croatia, I hereby present my
SEPARATE OPINION
to the Ruling of the Constitutional Court of the Republic of Croatia
No: U-I-2694/2003 of 28 January 2004
Objecting to Ruling No: U-I-2694/2003 of 28 January 2004, whereby the
proposal to institute proceedings to review the constitutionality of the Family Act
(Narodne novine, No. 116/03) was refused, and to the statement of reasons given for
refusing the proposal, I voted against this ruling, and separated my vote with the
request that my separate opinion is published with the publication of the Ruling in
Narodne novine.
My reasons for voting against the Ruling and its statement of reasons are
grounded exclusively in constitutional law.
I feel that it has become accepted to shape decision-making by the
Constitutional Court by interpreting the order of constitutional provisions within the
same terms of Heading III of the Constitution, which I find unacceptable, and which
contravenes the principles and the assertion that the provisions of certain chapters
are a part of the entirety of the constitutional text, and are of equal legal value as all
the other constitutional provisions.
The Constitutional Court refused the proposal to review the constitutionality of
the Family Act, and in the reasons for its Ruling it singled out as the most important
reason the finding that it had already presented in its decisions No: U-I-2566/2003, UI-2892/2003 of 27 November 2003, whose reasoning is in essence reduced to the
following:
“Therefore, the answer to the question, which of the laws – whose provisions
elaborate to a different extent particular constitutionally regulated human rights and
fundamental freedoms - may be considered an organic law, should be limited to the
area of freedom, equality and respect for human rights, as the fundamental
constitutional values prescribed in Article 3 of the Constitution. Their content – unlike
the economic, social and cultural rights – is determined by the Constitution itself and
is individualized by guaranteed legal protection at the national and international level.
Proceeding from the above, an organic law, which elaborates constitutionally
determined rights and fundamental freedoms in the sense of the first part of the
sentence in Article 82 paragraph 2 of the Constitution, is only the law whose main
object of regulation is one or more particular, constitutionally regulated, personal and
political right(s) and human freedom(s). Whether the preconditions to designate a
certain law as organic have been fulfilled, in the sense of the first part of the sentence
in Article 82 paragraph 1 of the Constitution, is examined – in case of doubt –
separately in each specific case."
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This practice, which the Constitutional Court adopted in the above two cases,
has made me draw a conclusion that is completely opposite to the one taken by the
court in this matter, when it refused the proposal to repeal the Family Act for formal
reasons, because the procedure of its enactment had been in breach of Article 82
paragraph 2, whereby the Act, as an organic law, should have been enacted by a
majority vote of all MPs.
I think that the Constitutional Court should have gone beyond the articulation
and protection of political interests that depend on the size and power of media
caretakers, on one hand, and on the other accorded the proper weight to the
universal understanding of, and to the moral and legal approach to, resolving issues
connected to creating grounds for solving problems related to the guarantee of family
life (Article 35 of the Constitution), i.e., to the constitutional guarantee of special State
protection for the family (Article 61 of the Constitution), for maternity, children and
young people, and for creating social, cultural, upbringing, educational, material and
other conditions that promote “the right to a decent life” (Article 62 of the
Constitution).
Article 63 of the Constitution probably describes the widest scope of human
rights and fundamental freedoms in relation to the whole complex of family life,
specifying the duties of parents to bring up, support and educate their children, but
also the “right and freedom to decide independently on the upbringing of their
children”, responsibility for the “full and harmonious development of their
personalities”, and it also requires that “the State shall take special care of parentless
minors and parentally neglected children."
I am convinced that it is indisputable that our Constitution was and still is the
fundamental means for implementing the overall social transition from the
communist-self-government socialist system to a civil democratic order with all its
values. This is why I find it incomprehensible that the Court, at the same session on
28 January 2004, defined the Media Act as an “organic law”, thus a law whose
enactment requires a majority vote of all the MPs, and found that the Family Act was
not an organic law, making its enactment possible by majority vote of the MPs
present at the sitting.
The understand this difference better, it seems necessary to say that Article 38
of the Constitution says all that was deemed necessary in relation to the media, in
particular the provision guaranteeing “the freedom of thought and expression”, which
includes the “freedom of press”, but at the same time the freedom and possibility for
the »establishment of all institutions of public communication”. This naturally also
covers private institutions, with the possibility of private interpretation of all these
rights from the aspect of choosing contents and associates, respecting the demands
of the owner in the sense of the contents and form in which these papers appear in
private institutions.
I think it cannot be disputed that Article 82 of the Constitution does not
expressly refer to either the Family Act or the Media Act as organic laws.
Both laws may obtain this status exclusively with reference to the provision of
paragraph 2, Article 82, of the Constitution, in the part that defines the concept of an
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organic law, and which reads: "The laws (organic laws) which elaborate the
constitutionally defined human rights and fundamental freedoms”, because the
remaining contents of paragraph 2 relate to the following: “the electoral system, the
organization, authority and operation of government bodies and the organization and
authority of local and regional self-government shall be passed by the Croatian
Parliament by a majority vote of all the members".
I accept the ambition to broaden the freedom of constitutional interpretation,
but I do not see how the Constitutional Court may, only partially, within the same
body of guarantees of human rights and fundamental freedoms, become a maker of
the Constitution by its own discretion!
Dato sed non concesso – so be it, although I do not agree – perhaps the
Constitutional Court could not perform its fundamental constitutional authority of
reviewing constitutionality and legality and protecting constitutionally guaranteed
human rights and fundamental freedoms without the right to interpretation.
However, which fundamental goals and principles should be the basis for
interpretation? I think interpretation should be based on judging the constitutional
goals and the particular provisions through our social and legal reality.
In the specific case, considering several cited constitutional provisions (Articles
35, 61, 62, 63 … of the Constitution), it is impermissible and impossible for the
Constitutional Court itself to determine the meaning of a constitutional provision,
because this is reserved for the Parliament, which is authorized to provide an
authentic interpretation. In my opinion, the Family Act, considering the challenges of
the current spiritual changes in Croatia, should give a strong and motivating boost to
all professional potentials in the face of the terrifying political and quantitative
presentation of the chaos in the area of family and marriage, and strengthen the
position that our Constitution gives to family life.
The family is the fundamental cell of society. Children are under the special
care of the state. All that is connected to family should be regulated, pursuant to the
guarantees provided in the Constitution, by the indisputable majority of all members
of the Croatian Parliament, elected by the people.
Therefore I am convinced, and I now deem, that the Constitutional Court
should have decided positively in respect to the applicant’s request. Our decision
should have served as a professional basis for the enculturation of citizens and their
associations to recognize and continue living with the liberating charge of our past, to
the maximum extent.
This was the reason why I separated my vote and voted against the ruling
refusing the proposal to proclaim the Family Act unconstitutional due to formal
reasons.
Zagreb, 29 January 2004
Judge
Milan Vukovic, m. p.