THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-I-5991/2012
Zagreb 23 January 2013
The Constitutional Court of the Republic of Croatia, composed of Jasna
Omejec, President of the Court, and Judges Mato Arlović, Marko Babić, Snježana
Bagić, Slavica Banić, Mario Jelušić, Davor Krapac, Ivan Matija, Antun Palarić, Aldo
Radolović, Duška Šarin and Miroslav Šeparović, deciding in proceedings to review
the conformity of a law with the Constitution of the Republic of Croatia (Official
Gazette nos. 56/90, 135/97, 113/00, 28/01 and 76/10), at its session held on 23
January 2013, rendered the following
DECISION
I.
Pursuant to Article 38.2 of the Constitutional Act on the Constitutional
Court of the Republic of Croatia (Official Gazette nos. 99/99, 29/02 and 42/02 –
consolidated text), proceedings are instituted to review conformity with the
Constitution, and Articles 71.2 and 74.2 of the State Judiciary Council Act (Official
Gazette nos. 116/10, 57/11 and 130/11) are hereby repealed.
II.
This decision shall be published in the Official Gazette.
Statement of reasons
I. PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT
1.
Pursuant to the authorisation prescribed by Article 38.2 of the Constitutional
Act on the Constitutional Court of the Republic of Croatia (Official Gazette nos. 99/99,
29/02 and 49/02 – consolidated text; hereinafter: the Constitutional Act), the
Constitutional Court sua sponte instituted proceedings to review the conformity with
the Constitution of Articles 71.2 and 74.2 of the State Judiciary Council Act (Official
Gazette nos. 116/10, 57/11 and 130/11; hereinafter: the SJCA).
2.
Articles 71 and 74 SJCA read:
“Article 71
(1) The judge shall have the right to lodge an appeal with suspensive effect
against a decision on dismissal from office, or on disciplinary responsibility.
(2) The claimant shall also have the right to lodge an appeal against the
decision on disciplinary responsibility.
(3) The appeal shall be lodged with the Constitutional Court of the Republic of
Croatia within 15 days of the delivery of the decision."
2
“Article 74
(1) A decision on temporary suspension shall be made in writing,
accompanied by a statement of reasons.
(2) The judge shall have the right to lodge an appeal against the decision on
temporary suspension in conformity with Article 69, paragraph 2 herein. The appeal
shall not suspend the enforcement of the decision.”
II. RELEVANT LAW
a) The Constitution of the Republic of Croatia
3.
Articles 120.2.4, 120.3, 120.4 and 120.5 of the Constitution read:
“Article 120
(...)
A judge shall be relieved of office:
(...)
- if, in conformity with law, the National Judicial Council so decides due to the
perpetration of grave infringement of discipline,
(...).
A judge shall have the right to lodge an appeal against a decision relieving
him/her of judicial duty with the Constitutional Court within 15 days after the date on
which the decision has been served. The Constitutional Court shall rule on the appeal
applying such procedure and being of such composition as determined by the
Constitutional Act on the Constitutional Court of the Republic of Croatia.
A judge shall have the right to lodge an appeal against a decision by the
National Judicial Council on disciplinary accountability with the Constitutional Court
within 15 days after the date on which the decision has been served. The
Constitutional Court shall decide on the appeal in the manner and by applying the
procedure as determined by the Constitutional Act on the Constitutional Court of the
Republic of Croatia.
In the cases specified in paragraphs 3 and 4 of this Article, the Constitutional
Court shall decide within no more than 30 days from the day the appeal has been
lodged. Such ruling of the Constitutional Court shall exclude the right to a
constitutional petition.
(...)”
b) The Constitutional Act on the Constitutional Court of the Republic of
Croatia
4.
Articles 97 and 98 of the Constitutional Act read:
“X. PROCEDURE IN CONNECTION WITH AN APPEAL AGAINST THE DECISION
TO RELIEVE A JUDGE OF OFFICE, AND THE DECISION ABOUT THE
DISCIPLINARY RESPONSIBILITY OF A JUDGE
Article 97
(1) A judge (hereinafter: the appellant) may appeal to the Constitutional Court
against the decision to relieve him of office within a term of 15 days after the disputed
decision has been delivered.
(2) The appeal in paragraph 1 of this Article shall be decided by a majority
vote by a Chamber of the Constitutional Court composed of six judges.
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(3) The decision of the Constitutional Court whereby the appeal is adopted as
grounded shall repeal the disputed decision, and the matter shall be returned to the
National Judicial Council for renewed proceedings.
(4) In the event of paragraph 3 of this Article, the National Judicial Council
shall pass another decision instead of the one that has been repealed, and in so
doing shall be bound by the legal opinion of the Constitutional Court about the
violation of the appellant’s constitutional rights expressed in its repealing decision.
Article 98
(1) A judge (hereinafter: the appellant) may appeal to the Constitutional Court
against the decision of the National Judicial Council on disciplinary responsibility
within a term of 15 days from the day when the disputed decision was delivered.
(2) The appeal in paragraph 1 of this Article shall be decided by majority vote
by a Chamber of the Constitutional Court composed of six judges.
(3) The decision of the Constitutional Court whereby the appeal is adopted as
grounded shall repeal the disputed decision, and the matter shall be returned to the
National Judicial Council for renewed proceedings.
(4) In the event of paragraph 3 of this Article, the National Judicial Council
shall pass another decision instead of the one that has been repealed, and in so
doing shall be bound by the legal opinion of the Constitutional Court about the
violation of the appellant’s constitutional rights expressed in its repealing decision."
III. ASSESSMENT OF THE CONSTITUTIONAL COURT
5.
The competence of the Constitutional Court is defined by Article 125 of the
Constitution.
In proceedings related to the dismissal and disciplinary responsibility of a judge, the
competence of the Constitutional Court is defined by Articles 120.3, 120.4 and 120.5
of the Constitution.
Pursuant to Article 125.10 of the Constitution, the Constitutional Court may perform
only the activities “regulated by the Constitution”.
Articles 127.1 and 127.2 of the Constitution read:
“Article 127
... conditions and time-limits for instituting proceedings for the assessment of
constitutionality and legality, the procedure and legal effects of its decisions, the
protection of human rights and fundamental freedoms guaranteed by the Constitution,
and other issues vital to the performance of duties and work of the Constitutional
Court of the Republic of Croatia shall be regulated by a constitutional act.
Such constitutional act shall be adopted in accordance with the procedure
determined for amending the Constitution.
(...)”
In accordance with the above, the competence of the Constitutional Court may be
established only by the Constitution.
The Constitution and the Constitutional Act are the only legislation regulating the
organisation and competence of the Constitutional Court. An act without the
significance of the Constitution or a Constitutional Act or any other regulation may not
encroach upon the competence or the organisation of the Constitutional Court.
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6.
The SJCA cannot expand the competence of the Constitutional Court beyond
the remit of its activities as established by the Constitution, and as elaborated by the
Constitutional Act.
Articles 71.2 and 74.2 SJCA regulate the competence of the Constitutional Court to
decide on an appeal by the applicant as a disciplinary prosecutor, against the
decision on the disciplinary responsibility of judges and the appeal of judges against
the decision on suspension from office.
These articles of the SJCA, therefore, expand the competence of the Constitutional
Court, without constitutional grounds in this regard. The Constitutional Court,
pursuant to Article 97 of the Constitutional Act, is competent to decide only on an
appeal lodged by a judge against the decision on dismissal from judicial office.
Beyond such competence established by the above article of the Constitutional Act,
the competence of the Constitutional Court to decide on the disciplinary responsibility
of a judge cannot be expanded.
The Constitutional Court, therefore, repealed Articles 71.2 and 74.2 SJCA.
7.
Finally, the Constitutional Court notes that there is a mistake in Article 74.2
SJCA. Namely, this paragraph of Article 74 SJCA erroneously refers to Article 69.2
SJCA, which the SJC attempted to correct.
The SJC observations of 16 May 2012, submitted to the Constitutional Court, provide
an interpretation of Article 74.2 SJCA.
“Article 74.2 SJCA prescribes that a judge shall have the right to appeal
pursuant to the provision of Article 69.2 SJCA against a decision on temporary
suspension, and the appeal shall not suspend the enforcement of the decision. Since
Article 69.2 prescribes that all the evidence which may not form the grounds upon
which the decision on disciplinary proceedings is based shall be removed from the
case file before the trial, it is evident that an error was made when drafting the Act,
i.e. by referring to an erroneous Article of the Act.
The SJC applies Article 71.3 SJCA to the decision on suspension of a judge,
which regulates the filing of an appeal against a decision on dismissal, and on the
disciplinary responsibility of a judge."
8.
The decision on the publication (point II of the operative part) is based on
Article 29 of the Constitutional Act.
PRESIDENT
Jasna Omejec, LLD, m. p.