THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-III-59/2006
Zagreb, 22 November 2006
The Constitutional Court of the Republic of Croatia, composed of Petar Klarić,
President of the Court, and Judges Marijan Hranjski, Mario Kos, Ivan Matija, Ivan
Mrkonjić, Jasna Omejec, Željko Potočnjak, Agata Račan, Emilija Rajić, Smiljko Sokol,
Nevenka Šernhorst, Vice Vukojević and Milan Vuković, in proceedings instituted by the constitutional complaint of B. L. L. from L., G. B., represented by K. K., attorney in
Š., at its session held on 22 November 2006, rendered the following
D E C I S I O N
I.
The constitutional complaint is hereby refused.
II.
This decision shall be published in Narodne novine .
S t a t e m e n t o f r e a s o n s
1. The constitutional complaint was lodged against the ruling of the High
Misdemeanour Court of the Republic of Croatia No.: Gž-5454/05 of 14 October 2005, which in part accepted the appeal of the applicant (the defendant in the misdemeanour proceeding) and altered the decision of the Ministry of the Sea,
Tourism, Transport and Development, Directorate of Navigation Safety and Sea
Protection, Šibenik Port Authority, No.: PR/I-75/05 of 7 September 2005, in such a way that the applicant is fined 100,000.00 kn for the offence committed.
In the first-instance decision the applicant was found guilty of and fined 300,000.00 kn for the offence in Article 993/3 of the Maritime Code ( Pomorski zakonik, Narodne novine , No. 181/04), described in the pronouncement of the decision.
In addition to the fine, Article 1008/2 of the Maritime Code was also applied against the applicant and the yacht C. r.
with all her appurtenances and accessory equipment, inventory and vessel documents, was confiscated as a precautionary measure.
2. The applicant deems that the disputed ruling and decision violated the constitutional rights guaranteed in Articles 29/1,4, 30, 48/1 and 50/1 of the
Constitution.
To support his claim about the violation of the above constitutional provisions, the applicant alleges that the facts of the case were not properly and completely

2 established in the misdemeanour proceedings, which resulted in the misapplication of the relevant regulation of substantive law, and he also indicates a series of procedural-law violations, all of which he essentially also stated in the appeal.
He maintains that he did not make a contract about using the vessel, a contract about seaborne traffic and a contract to transport passengers by sea, i.e. to lease the vessel. His intention had been to sell the yacht and he had arranged for the purchaser to examine her. This was a case of sale on approval in Article 536 of the
Civil Obligations Act ( Narodne novine , No. 53/91) and the applicant is, therefore, not responsible for the offence committed. Also, he states that all the evidence that should have been removed from the file during the proceeding, was not removed.
He proposes that the Court accepts the constitutional complaint and stays the execution of the disputed decisions.
The constitutional complaint is not well founded.
3. Article 62/1 of the Constitutional Act on the Constitutional Court of the
Republic of Croatia ( Narodne novine , Nos. 99/99, 29/02 and 49/02 – consolidated wording, hereinafter: Constitutional Act) provides that everyone may lodge a constitutional complaint with the Constitutional Court if he deems that the decision of a government body, a body of local and regional self-government, or a legal person with public authority, which decided about his rights and obligations, or about suspicion or accusation for a criminal act, has violated his human rights or fundamental freedoms guaranteed in the Constitution.
The Constitutional Court, during its proceedings of offering constitutional-law protection and as a rule within the limits of the request specified in the constitutional complaint, establishes whether there has been a constitutionally impermissible encroachment into an ind ividual’s human rights and fundamental freedoms in the proceeding of deciding about his/her rights and obligations.
4. The offence in Article 993/2 of the Maritime Code is committed by the owner of a ship and the operator of a yacht or boat that transports passengers for hire contrary to the provision of Article 9/4 of that Code, whereby passengers may be transported for hire by yacht or boat in the internal waters and territorial sea of the Republic of
Croatia only by a boat or yacht of Croatian nationality, owned by a Croatian natural or legal person who complies with the conditions laid down in a special regulation issued by the minister.
The yacht in issue is not of Croatian nationality and belongs to a foreign natural person
– the applicant, and on the day of inspection it was being used to transport passengers for hire. The yacht was navigated by S. F. B. and three other persons. A legal connection between this person and the applicant was found in the proceedings and the applicant was aware of and had permitted the use of his yacht in the period from 16 to 30 July 2005.
Therefore, the misdemeanour bodies found that the applicant had committed the above offence, and the secondinstance court decreased the applicant’s fine finding

3 that it had been set too strictly in the first-instanced proceeding considering the extenuating circumstances (no prior conviction).
The High Misdemeanour Court rejected the applicant’s objection, which he repeats in the constitutional complaint, finding that the way in which the yacht was used is not relevant in this proceeding. The applicant claims that he had allowed the potential buyer to test the yacht, so that he could verify all her characteristics before finally paying for his purchase. In accordance with the Civil Obligations Act, in the case of sale on approval the seller bears the risk of destruction or damage to the goods until the buyer states his intent to purchase. As the sales contract was in this case not realised, the yacht was owned by the applicant at the moment when the misdemeanour was committed and the misdemeanour proceedings were instituted against him as defendant.
5. Article 29/1 of the Constitution provides that everyone shall have the right to an independent and fair trial provided by law which shall, within a reasonable time, decide upon his rights and obligations, or upon the suspicion or the charge of a penal offence.
Article 29/4 of the Constitution provides that evidence illegally obtained shall not be admitted in court proceedings.
The right to a fair trial in the procedural sense, guaranteed in Article 29/1 of the
Constitution, would have been violated if the party in the proceeding had not had the opportunity to be heard and to participate in the proceeding under the terms specified by law; if he had not had the opportunity to state facts and propose evidence, and if the competent court had not declared itself about his allegations important for making a decision; if reasons had not been given for the individual act, contrary to the law; and if the party had in any other way been prevented from a fair trial before the competent body established by law.
Furthermore, the High Misdemeanour Court found that the regularity of the decision about the offence was not affected by the omission of the first-instance misdemeanour body to remove from the file, in accordance with Article 118/1 and
Article 192/1 of the Misdemeanour Act ( Narodne novine , No. 88/02), the inspection minutes that contain the non-valid statement of the witness S. F. B. (the captain of the yacht), who was not provided with a German interpreter, because the decision of the first-instance body was not grounded on that statement.
As the misdemeanour proceedings were conducted in accordance with Article 29/1,4 of the Constitution, the constitutional rights to which the applicant refers have not been violated.
6. Article 30 of the Constitution prescribes that the sentence for a serious and exceptionally dishonorable criminal offence may, in conformity with law, have as a consequence the loss of acquired rights or a ban on acquiring, for a specific period of time, certain rights relating to the conduct of specific affairs, if this is required for the protection of the legal order.

4
This constitutional provision is not relevant because the applicant was not banned from the conduct of specific affairs in the proceedings.
7. Article 48/1 of the Constitution guarantees the right of ownership, but in this case confiscating the object used to commit the offence is provided for in Article
1008/2 of the Maritime Code, which reads as follows:
In addition to the statutory penalty for the maritime offence mentioned in
Article 993 paragraph 1 point 2 and Article 993 paragraph 2, the precautionary measure of confiscating the waterborne craft used to commit the offence shall be applied, regardless of who owns it.
8. Pursuant to the above, the Constitutional Court has found that the constitutional rights to which the applicant refers in the constitutional complaint have not been violated, and on the grounds of Articles 73 and 75 of the Constitutional Act, the Constitutional Court has decided as in the pronouncement (point I).
Point II of the pronouncement is grounded on Article 29 of the Constitutional Act.
As the applicant’s constitutional complaint has been decided, preconditions for ordering a temporary stay of execution of the disputed ruling and decision no longer exist, in the meaning of Article 72 of the Constitutional Act.
PRESIDENT
Petar Klarić, LLD, m. p.

5
In accordance with Article 27/4 of the Constitutional Act on the Constitutional Court of the Republic of Croatia ( Narodne novine , Nos. 99/99, 29/02 and 49/02 – consolidated wording), we give in written form our
SEPARATE OPINION
TO DECISION NO.: U-III-59/2006 OF 22 NOVEMBER 2006
We oppose the pronouncement and reasons for Decision No.: U-III-59/2006 made at the session of the Constitutional Court of 22 November 2006 (hereinafter: the
Decision) for the following reasons:
1.
B. L. L., a citizen of G. B., lodged a constitutional complaint against the ruling of the High Misdemeanour Court of the Republic of Croatia, No.: Gž-5454/05 of 14
October 2005, which in part accepted his appeal and altered the decision of the
Ministry of the Sea, Tourism, Transport and Development, Directorate of Navigation
Safety and Sea Protection, Šibenik Port Authority, of 7 September 2005, in such a way that the applicant, instead of being fined 300,000.00 kn for the offence in Article
993/3 of the Maritime Code ( Narodne novine , 181/04), as ordered in the first-instance decision, was fined 100,000.00 kn.
In addition to the fine, Article 1008/2 of the Maritime Code was applied and the yacht
C. R.
, with all her appurtenances and accessory equipment, inventory and vessel documents, valued approximately 1,500,000.00 Euro, was confiscated as a precautionary measure.
2.
The applicant deems that the disputed ruling and decision violated his constitutional rights guaranteed in Article 29/1,4 of the Constitution and Article 30,
Article 48/1 and Article 50/1 of the Constitution. After a detailed explanation of the reasons why he considers that the above constitutional rights have been violated, the applicant proposes that the Court accepts the constitutional complaint and quashes in their entirety the above ruling of the High Misdemeanour Court of the Republic of
Croatia and the decision of the Ministry of the Sea, Tourism, Transport and
Development.
3. The Constitutional Court refused the constitutional complaint in its Decision of
22 November 2006. We, on the contrary, are of the opinion that the constitutional complaint is in this case partly well-founded and that the part in the above decision and ruling referring to the precautionary measure of confiscating the yacht should have been quashed, and the part referring to the fine of 100,000.00 kn for the misdemeanour should have been refused. We ground our view on the constitutional interpretation of the relationship between Article 48/1 of the Constitution, which guarantees the right of ownership, and Article 16/2 of the Constitution, which provides that every restriction of freedoms or rights shall be proportionate to the nature of the necessity for restriction in each individual case. In this case the disproportion between the gravity of the offence and the illegal benefit made by it, and the precautionary measure of depriving the applicant of ownership of the yacht, is obvious and undoubtedly exceedingly great and completely unacceptable. It is a fact that the applicant committed the offence in Article 993/3 of the Maritime Code

6 only once, as the High Misdemeanour Court found in its ruling, and that he had no prior conviction of any kind, because of which his fine was reduced from 300,000.00 to 100,000.00 kn. The value of the yacht of whose ownership the applicant was deprived is many times greater than the benefit he made, and there is also a clear disproportion between the gravity of the offence, which is expressed through the fine of 100,000.00 kn, and the precautionary measure of confiscating a yacht that is worth approximately 1,500,000.00 Euro. We, therefore, deem that the above precautionary measure has violated Article 48/1 in conjunction with Article 16/2 of the Constitution, because the applicant was deprived of his right of ownership of the yacht under circumstances which are disproportionate with the need to restrict the right of ownership.
4. We especially deem that the reasoning of the Constitutional Court in the
Decision of 22 November 2006 is completely unacceptable and inappropriate in constitutional law, in the part in which, in point 7 of the reasons, it argues why the precautionary measure of depriving the applicant of ownership of the yacht is not a violation of the constitutional rights to which he refers in the constitutional complaint.
The following argument is given in point 7 of the reasons: “Article 48/1 of the
Constitution guarantees the right of ownership. But in this case confiscating the object of the offence is provided for in Article 1008/2 of the Maritime Code, which reads as follows:...”. The above explanation explicitly leads to the view, completely unacceptable in constitutional law, that a legal provision may derogate a guaranteed constitutional right. This explanation can not only not serve as grounds for refusing the constitutional complaint in the above Decision of the Constitutional Court of 22
November 2006, but is also unacceptable in principle, from the aspect of the future practice of the Constitutional Court, because it contravenes the legislator’s obligation to honour the constitutional order. It not only infers that the Constitutional Court, in deciding on constitutional complaints, decides on legality and not on the violation of constitutional rights, but also that a law may be used to justify the non-application of constitutional provisions that guarantee human rights and fundamental freedoms.
Zagreb, 29 November 2006
Judges
Smiljko Sokol, LLD, m. p
Jasna Omejec, LLD, m. p.
Agata Račan, m. p.
Ivan Matija, LLM, m. p.
Emilija Rajić, m. p.
Mario Kos, m. p.

7
On the grounds of Article 27/4,5 of the Constitutional Act on the Constitutional Court of the Republic of Croatia ( Narodne novine , No. 42/02 – consolidated wording, hereinafter: Constitutional Act) and Articles 50 and 51 of the Standing Rules of the
Constitutional Court of the Republic of Croatia ( Narodne novine , No. 181/2003), I declare my
SEPARATE OPINION to Decision No: U-III-59/2006 OF 22 NOVEMBER 2006
Although I voted to refuse the constitutional complaint, I do not concur with the reasons given for the Decision, especially point 7 of the reasons. I deem that the disputed ruling and decision made in the misdemeanour proceedings restricted the applicant’s right of ownership guaranteed in Article 48/1 of the Constitution. In cases of this kind the Constitutional Court must, in my opinion, verify whether in each specific case the restriction of the constitutionally guaranteed right of ownership complies with the standards in Article 16 of the Constitution. I deem that point 7 of the reasons for the Decision should have expressed a stand about the control of constitutionality, and especially about whether the restriction of the constitutionally guaranteed right of ownership is proportionate.
However, taking into account all the circumstances given in the reasons for the decision (the nature of the offence, the difficulties in establishing the real benefit that the applicant made in the activities that constitute the essence of the offence), I am personally of the opinion that the disputed ruling and decision did not disproportionately restrict the applicant’s constitutionally guaranteed right of ownership. I also note that the decision to refuse the constitutional complaint concurs with the previous practice of the Constitutional Court, which examines the penalties and safety measures adjudicated in criminal and misdemeanour proceedings extremely restrictively. The circumstances of this case are not, in my opinion, such that the Constitutional Court should in connection with it significantly change its previous practice.
Zagreb, 29 November 2006
Judge of the Constitutional Court of the Republic of Croatia
Željko Potočnjak, LLD, m. p.