2.8.1; 2.8.3–2.8.6 The Bulgarian courts have a reluctant approach to referring questions for preliminary rulings. The preliminary rulings that have been requested have predominantly concerned taxation issues. The right to submit a preliminary reference to the CJEU has been used mostly by the lower courts and especially by the administrative courts. The Constitutional Court, the Supreme Court of Cassation and the Supreme Administrative Court have still refrained from involvement in direct judicial dialogue with the CJEU. The Supreme Administrative Court has requested a preliminary ruling from the CJEU in only two cases.

It is very difficult to compare the trust in the CJEU and in the domestic courts. A typical attitude of Bulgarian society is that it trusts European institutions more than national institutions. But this is a very general assessment which is related much more to the Zeitgeist than to any reliable scientific data.

There have been very few cases in which the Constitutional Court has tackled issues concerning EU law and domestic legislation implementing EU law. In almost all of these cases, EU law has been used as the criterion for the annulment of potentially contravening domestic legislation. It is only in a case concerning the legislation implementing the EU Data Retention Directive that domestic legislation is being reviewed with regard to its constitutionality; however, at the time of writing in January 2015 this case is still pending in front of the Constitutional Court.

According to statistical data,31 during the period 1991–2006, 158 Acts of Parliament have been challenged for their constitutionality in the Constitutional Court. Of these, 79 have been qualified as fully in compliance with the Constitution, 40 have been declared partially unconstitutional and 39 have been declared fully unconstitutional. Moreover, 25 decisions of the National Assembly, 3 decrees of the President of the Republic and 4 international treaties have been subjected to a review of constitutionality in the Constitutional Court. The outcome of the proceedings has been as follows: 15 of the decisions of the National Assembly as well as all of the presidential decrees and all challenged international treaties were

31 Modeva 1997, p. 573 and Modeva 2010, p. 825.

declared to be in compliance with the Constitution, 5 of the parliamentary decisions were declared partially unconstitutional and 5 of the parliamentary decisions were declared fully unconstitutional.

## 2.9 Other Constitutional Rights and Principles

2.9.1 No significant EU-related human rights issues have arisen in Bulgarian practice.

## 2.10 Common Constitutional Traditions

2.10.1–2.10.2 When tackling the issue of common constitutional traditions, one has to take into account that this term might denote very different things, such as constitutional and legislative grounds, the jurisprudence of the courts, the empirical behaviour of the people and the state institutions and the legal consciousness and constitutional culture. Moreover, there is a thin and a thick version of the common constitutional traditions. The thin version consists of the resemblance between the legal provisions enshrined in the valid sources of law of the compared constitutional systems. The thick version comprises also the ways these normative provisions are internalised in the thinking and behaviour of the legal subjects. Here one may differentiate between the political and legal culture of citizens and institutional memory, which sometimes results in path dependence.

The thin version of the common constitutional traditions might seem very wide in scope. Due to its formality and the fact that it is focused on the 'law in books', it might include the main principles of constitutional law – democracy, rule of law, separation of powers, sovereignty and to a lesser extent the welfare state, all civil and political rights, some of the social and economic rights and key principles governing the different branches of state power, especially when it comes to the judiciary. To some extent the breadth of these formal and normative aspects of the common constitutional traditions result in the thinness of this version. The integration processes that started after World War II gained momentum from the beginning of the 1980s and reached their culmination in the establishment of a quasi pan-European legal space after the fall of the Berlin Wall led to the production of a series of constitutional reforms at EU, international, national and even subnational level. The increased resemblance between the formal constitutional systems of the European states and the even greater similarity between the constitutional systems of the EU Member States is the result of this intense approximation effort, which was accomplished by international and EU institutions, by nation state bodies, by NGOs and by other institutional and non-institutional actors.

On the other hand, the thick version of the common constitutional traditions is based on the shared belief of the legal subjects – both office holders and citizens – that the constitutionally and legislatively enshrined rights, obligations, principles and institutions are justified and have to be observed and implemented in social and legal practice. In other words, the thick version of the common constitutional traditions comprises not only 'the law in books' but also 'the law in action'.

An important problem lies in the question of who is competent and at the same time has the legitimacy to delimit the common constitutional traditions of the EU Member States in a legally binding and valid manner. The functioning of the courts as representative spokesmen of the community of citizens clashes with the classic issue of their democratic legitimacy deficit. Judicial dialogue is a practicable and intelligible method for delimiting the common constitutional traditions and thus of the constitutional consensus in European constitutionalism. The problem is that if the judicial dialogue and its results lack democratic acceptance, it cannot lead to a legally valid result which is sustainable in the long term. In such a case the passive 'permissive consensus' of the citizens is not sufficient in order to guarantee the development of a real or thick version of the common constitutional traditions.

# 2.11 Article 53 of the Charter and the Issue of Stricter Constitutional Standards

2.11.1 There has been no extensive discussion in Bulgaria on Art. 53 of the Charter and the issue of the application of stricter constitutional standards. We believe that Art. 53 of the Charter is a sufficient legitimation for the application of national human rights standards if they are higher than EU standards. It is true that national law, including national human rights law, should not serve as an instrument for undermining EU integration. However, the achievements not only of the distinct Member States or the ECHR but also of European constitutional civilization in general might be endangered if the EU and its institutions start to systematically diminish the standard of human rights protection with teleological excuses based on efficiency arguments.

It has to be taken into account that Art. 53 of the Charter is to some extent a product of the judicial dialogue between the CJEU and the national constitutional courts. It codifies an important principle in EU primary law, namely that the national standards for human rights protection must be respected by the EU institutions, and that EU standards should not be lower than these national standards. Furthermore, Art. 53 permits the application of higher national human rights standards. Hence, although the decision in the Melloni32 case has its logic in the context of the European Arrest Warrant, it gives rise to issues regarding its legitimacy in view of the principle of the rule of law.

32 Case 399/11 Melloni [2013] ECLI:EU:C:2013:107.

# 2.12 Democratic Debate on Constitutional Rights and Values

2.12.1 There has been no intense debate in Bulgaria either regarding the adoption and implementation of the European Arrest Warrant Framework Decision or with regard to the EU Data Retention Directive. These key events concerning the rule of law in the EU were passively received by the politicians, the academia, the legal community and the broader public. This is due to the general EU-optimistic attitude in Bulgaria in the pre-accession period and in the first years after EU accession, as well as the typical affirmative stance on EU integration issues. In this sense, the slogan 'Brussels wills it!' has functioned as a key explanatory strategy.

Democratic deliberation is a phenomenon that does not predominantly depend on the legal infrastructure. If there is no censorship, information and media pluralism are guaranteed and communication rights are enshrined in the constitution and legislation, then the quality and quantity of democratic deliberation results to a great extent from the maturity of the society, the willingness of its citizens to engage in public debate and the variety and sufficiency of available information. Hence, a lack or insufficiency of democratic deliberation on EU issues in general or in Bulgaria in particular is much more a result of deficits in the social preconditions than in the legal framework. One general problem which needs a common solution is the national fragmentation of EU related deliberation and the nonexistence of a common European deliberative space.

2.12.2 The adequacy and good functioning of the constitutional review of EU matters will be evaluated differently depending on the attitude of the commentator on issues such as judicial dialogue, the legitimacy of constitutional justice as a medium between the national and supranational levels and the nature, teleology and future of the EU. A federalist approach would generally dismiss claims for more constitutional control. A moderate pro-European stance would try to reconcile and balance the need for preservation of the national institutions, interests and values enshrined in the constitutions and guaranteed by the constitutional courts with the demands of efficient and smoothly functioning EU integration. A more EU-reluctant approach would emphasise the need for sufficient time and discretion for the national institutions and in particular for the national constitutional courts to scrutinize EU measures and safeguard national sovereignty and interests.

2.12.3 The idea of suspending the application of and reviewing EU measures where important constitutional issues have been identified by a number of constitutional courts is an interesting one. Its great advantage would be that it would enhance the role of the national constitutional courts as direct guarantors of the national constitutional identity but also as the providers of indirect safeguards for developing EU integration in a way that would ensure respect for the key constitutional principles and values that fall within the scope of the common European constitutional traditions. The introduction of such a system might enhance the legality, legitimacy and efficiency of EU measures.

On the other hand, it might additionally increase the complexity of the EU decision-making schemes and thus might contribute to the structural and functional gridlock of the EU. Moreover, the rather modest and unsatisfactory results of the system for control of subsidiarity and proportionality by the national parliaments might to some extent be reproduced also in the context of constitutional control. Of course, here one has to take into account the institutional, functional, substantial and motivational differences between the two types of control performed by the national parliaments and the national constitutional courts. One can suppose that these differences would work in favour of control by the national constitutional courts because they are better equipped and prepared for such activity in comparison to the parliaments.

# 2.13 Experts' Analysis on the Protection of Constitutional Rights in EU Law

2.13.1–2.13.2 It is very difficult to give a general assessment of whether EU integration has diminished or increased the protection of human rights. This is so because the influence of EU integration varies according to the different societal domains and the human rights that are supposed to serve as an instrument for the protection of specific interests and values. However, the objectives of EU integration should not serve as an excuse for an actual or potential reduction of the level of protection of human rights. A reduction is legitimate, as also pointed out in the Bulgarian Constitution, only in a state of war or a state of emergency and even then not all rights may be affected and the reduction should be accomplished in a proportionate manner. It is obvious that EU integration does not constitute such an extraordinary situation.

EU integration has produced certain negative effects on key constitutional principles such as the rule of law, democracy and the separation of powers. Some of them are side-effects that have emerged in the course of the establishment of the new constitutional infrastructure in Europe, others might and actually must be prevented, whereas a third group of negative factors stem from processes which are much deeper and broader than EU integration, such as globalisation, constitutional pluralism, disintegration of the nation state and the dismantling of cornerstone constitutional ideologies that were established in the earlier phases of the development of constitutional civilization.

Hence, reduction of the standard of human rights protection and infringements of the rule of law are in principle neither inevitable, nor should they be tolerated, even if they are legitimised by virtue of higher integration goals. The use of EU integration and its possible positive effects as an excuse for limiting the scope of people's freedom might result in a neopaternalistic European Leviathan.

The reduction of the standard of human rights protection is a result of different factors. These are the establishment of new arenas for policy-making which are difficult to subject to democratic control by the citizens and society through classical devices; the emergence of new areas of social activity and legal regulation which people are still not accustomed to; the focus on human rights infringements by states and the lack of sufficient attention to human rights infringements by international and supranational organisations such as the EU, and the durable Euro-optimism in the new EU member countries, in many of which people still believe that the EU is much more democratic and better based on the rule of law than are their own states.

The EU accession to the ECHR is a possible solution that could serve as a guarantee against human rights infringements by the EU institutions. However, there is the intrinsic danger of the emergence of contradicting practices by the European Court of Human Rights and the CJEU. If there emerges a significant disparity between the jurisprudence of these two courts and a divergent practice of the national constitutional courts, we will be confronted with an increasing pluralism of human rights standards that could be very difficult to co-ordinate. In addition, after a certain point of no return, the idea of judicial dialogue could also no longer contribute to the reconstruction of a consistent and sufficiently comprehensible and clear system of human rights.

The creation of a distinct European Constitutional Court in parallel to the already existing EU court system might create similar problems – divergent practice, differing standards for human rights protection, issues relating to legal certainty and equal treatment, etc. On the other hand, it may enhance the level of protection of human rights due to the development of a pro-human rights institutional ethos, logic and, over time, institutional memory. Moreover, it might serve as a check on and competitor of the CJEU.

The enhancement of the role of the national constitutional courts with regards to human rights protection cannot be a durable solution. It could produce divergences in practice and could tend to bring concerns stemming from the more or less specific context of a specific Member State's jurisdiction to the forefront. Thus, an institutional design with a reinforced national constitutional court would be recommendable from the viewpoint of protecting the human rights standards that have already been achieved and of compensating for loss of sovereignty, but would lead to the establishment of peaks and valleys in the geography of human rights protection in the EU. The stimulation of a proactive role for other national institutions, such as national parliaments and ombudsmen, in highlighting constitutional issues in European governance might be useful but cannot serve as a sufficient remedy for the diminishing level of human rights protection.

The achievement of a revised approach and enhanced responsiveness by the EU Courts would be a very recommendable way to proceed. It would not lead to an overburdening of the institutional scheme with an abundance of players in the field of human rights protection, would serve as a precondition for the establishment of co-ordinated and consistent practice and would be based on an already existing institution. Hence, the development of the CJEU as a constitutional court of the EU would be a positive trend.

2.13.3 No significant issues of constitutional importance have been raised by the Bulgarian courts in their preliminary ruling requests to the CJEU. The proposals for the usage of comparative method and for enhanced examination of the national constitutional traditions of the EU Member States by the CJEU are reasonable because they may lead to a more sincere development of a shared realm of European constitutional traditions in the field of human rights. Making the arguments of the parties and of the intervening governments fully available on the Court's website might not only increase the transparency of the constitutional courts' decision-making but might enrich the scope of legal argumentation and provide inspiration for arguments in future cases.

## 3 Constitutional Issues in Global Governance

# 3.1 Constitutional Rules on International Organisations and the Ratification of Treaties

3.1.1–3.1.3 The Constitution provides for two ways to introduce international treaties into the Bulgarian legal order. The most important treaties must be ratified by the National Assembly, whereas less important ones (in the opinion of the constitutional legislator) have to be introduced by approval of the Council of Ministers by a decision.

The first group of international treaties are exhaustively enumerated in Art. 85 of the Constitution, according to which the National Assembly shall ratify and denounce the following treaties: treaties with political or military character; treaties concerning Bulgaria's participation in international organisations; treaties concerning amendment of the state boundary; treaties providing financial obligations for the state; treaties that provide for the participation of the state in international arbitrage or international judicial dispute resolution; treaties concerning human rights; treaties concerning legislative measures and treaties that explicitly require ratification. Other treaties that do not fall into the scope of Art. 85 do not need parliamentary ratification and may be implemented by a governmental decree. It was seen above that in 2005, a new type of treaty was included in the list of treaties with compulsory ratification. These are treaties that transfer competences which stem from the 1991 Constitution to the EU.

The Constitution stipulates that treaties that are ratified by the National Assembly can be amended or denounced only through the procedure provided by the treaties themselves or in accordance with the generally recognised norms of international law. This constitutional provision is a safeguard for the principle pacta sunt servanda.

An additional guarantee for the same principle is the constitutional provision that treaties that contravene the Constitution and thus require its amendment can only be concluded after the completion of such amendment. The systematic interpretation of this provision in combination with the provision on the absolute supremacy of the Constitution, the primacy of treaties and the generally recognised norms and principles of international law over all sub-constitutional domestic legislation and the lack of any explicit provision regarding the relationship between the EU and domestic Bulgarian law, leads to the conclusion that the Constitution implicitly subsumes EU law under the category of international treaty or general principle of international law. This stance is the result not so much of a strategy to preserve national sovereignty but of the political and practical difficulty of summoning the Grand National Assembly, which is the only body that can reorganise the hierarchy of the sources of law with regard to the supremacy of the Constitution and the primacy of international treaties.

The EU is the only supranational organisation that is explicitly mentioned in the Constitution. The UN, Council of Europe, NATO, WTO and International Criminal Court are not explicitly mentioned. However there are constitutional provisions that have implicit relevance for the participation of Bulgaria in these forms of supranational and global governance. According to Art. 24 of the Constitution, the external policy of the Republic of Bulgaria should be based on the principles and norms of international law. This article, in combination with the primacy of treaties and the generally recognised principles of international law over all Bulgarian legislation except the Constitution, creates the legal foundation both for the participation of the state in international relations and for the strong influence of the international legal order in Bulgaria.

The 2005 constitutional amendment of Art. 25 para. 4 of the Constitution allowing for the extradition of Bulgarian citizens to other states and to international courts for the purpose of criminal prosecution on the basis of an international treaty that has been ratified, published and has entered into force for Bulgaria opens the way for the application of the European arrest warrant and for the recognition of the jurisdiction of the International Criminal Court in The Hague.

Article 24 para. 2 of the Constitution imposes several objectives that have to be pursued and taken into account in the course of pursuing the external policy of Bulgaria. According to this constitutional provision, 'the foreign policy of the Republic of Bulgaria shall have as its highest objective the national security and independence of the country, the well-being and the fundamental rights and freedoms of the Bulgarian citizens, and the promotion of a just international order'.

The Preamble of the Constitution contains the constitutional values that have to be upheld by public authorities. These values are: freedom, peace, humanism, equality, justice, tolerance, human rights, human dignity and security as well as the national and state unity of Bulgaria. Hence, these values might be interpreted as implicit limitations to the participation of the state in supranational and international policy-making and to the transfer of competences to supranational or international organisations.

However, there are no explicit substantial limits to the transfer of competences to supranational or international organisations. This is due to the fact that there are no unamendable clauses in the Bulgarian Constitution as well as no specific provisions regarding the eventual scope of the competences that might be transferred to supranational and international organisations. There are only procedural requirements, i.e. qualified majorities, parliamentary ratification or convention of the Grand National Assembly, that have to be fulfilled.

The Bulgarian Constitution was adopted after the fall of the communist regime in Bulgaria. The main objective of the constitutional legislator was to open the Bulgarian constitutional statehood to the international legal order without undermining state sovereignty. In order to achieve this balance, the Constitution provides, on the one hand, for a monistic system for the introduction of international treaties into the Bulgarian legal system, gives priority and direct effect to international treaties that have been ratified by Bulgaria, published and have entered into force over Bulgarian legislation, apart from the Constitution, and proclaims the desire of Bulgaria to participate in the development of a just legal order. Moreover, in the course of preparing for EU accession, the Bulgarian Constitution was amended so as to allow for the integration of Bulgaria in this supranational constitutional community.

On the other hand, the Constitution seeks to preserve the control of the National Assembly over the vertical transfer of power towards supranational and international organisations in its capacity as the presumed guarantor of the people's sovereignty and state sovereignty.

3.1.4 Comments on the role of the Constitution were provided above in Sect. 1.5.3.

## 3.2 The Position of International Law in National Law

3.2.1–3.2.2 It has already been explained that according to Art. 5 para. 4 of the Bulgarian Constitution, international treaties that have been ratified pursuant to the Constitution, published and have entered into force for the Republic of Bulgaria are part of internal Bulgarian law. The ratification act is a formal one. It does not have its own normative content because its only purpose is to introduce the international treaty. Thus, the ratification act is just a device for investing international treaties with internal legal validity. Hence, the international treaty itself has direct normative force and is directly applicable. It has direct effect and prevails over contravening sub-constitutional provisions of Bulgarian law. This is due to the fact that the Bulgarian Constitution provides for a monist system for the introduction of international treaties into the national legal order.

The idea of the constitutional legislator was that the Constitution should prevail over international treaties because it is the core of crystallisation of national sovereignty. However, no institution of the constituted powers – neither the Parliament, nor the Government, the judiciary, the President, etc. – can violate the international obligations of Bulgaria because their acts will automatically be invalid due to the primacy of international treaties over the legal acts they adopt.

## 3.3 Democratic Control

3.3.1 The National Assembly is involved in the decision-making process concerning international treaties or international issues which are of crucial importance. The Parliament declares war and peace, gives permission for the sending and use of Bulgarian military troops abroad, for the stay and transit of foreign military troops on and through Bulgarian territory and approves the conclusion of state loan treaties. War can also be declared by the President if the Parliament is not in session and there is military aggression against the territory of the state or an urgent need to fulfil international military obligations. According to Decision No. 1 of 2003 of the Constitutional Court, if the National Assembly has given a general permission through ratification of an international treaty for the deployment and use of Bulgarian military troops abroad and for the stay and transit of foreign military troops on and through Bulgarian territory, the concrete subsequent orders for deployment of the military forces can be given by the Council of Ministers.

Apart from these key instances which concern military and financial matters, the National Assembly has no concrete competences for preliminary involvement in international policy making. The main actors in the negotiation and conclusion of international treaties are the Council of Ministers, the President, the Prime Minister, the foreign minister and, on some occasions, also other senior officials within the executive.

The National Assembly can always use the general instruments for parliamentary control in order to put pressure on the Government's external policy or to obtain information from the Council of Ministers for the participation of Bulgaria in the EU or international policy making. The Constitution does not permit the execution of secret international policy by the institutions of the executive power. Extensive parliamentary debates on governmental EU or foreign policy are not very frequent. They usually concern issues that are allocated high on the agenda of the political parties, i.e. the conclusion of international treaties with financial and strategic economic implications such as state loan and energy treaties. However, in principle, external policy making, including the initiation, preparation and conclusion of international treaties as well as their implementation, is dominated by the executive power institutions in general and the Government in particular.

This situation has been reinforced by the EU membership of Bulgaria, although this is not a Bulgarian peculiarity but rather a tendency that can generally be observed in all EU Member States. The participation of the National Assembly in EU policy making and its information and control competences relating to the Government as well as the international treaties that need parliamentary ratification for entry into force have already been discussed.

3.3.2 The accession or withdrawal from an international organisation or the ratification or denouncement of an international treaty has never been the subject of a referendum in Bulgarian history. Hence it is a tradition in Bulgaria that issues concerning the participation of the state in international relations are decided by the state institutions and not by the people, even if they concern crucial moments in the nation's destiny. The Constitution does not provide for referendums or popular initiatives concerning international issues, but also does not prohibit them. However, it has already been explained that the Direct Participation of the Citizens in State Power and Local Self Government Act allows for referendums for ratification but prohibits referendums on denouncement of an international treaty. It has to be taken into account that these are facultative and not compulsory referendums, which may be either imperative or consultative.33

The intent of the legislator has not been to put the Bulgarian authorities in an embarrassing position by potentially having to withdraw from an international treaty or having to leave an international or supranational organisation. However, whether it is legitimate to allow Bulgarian citizens to directly decide the issue of joining international or supranational organisations but to prohibit the direct democratic decision of the issue of ending membership in such organisation is very doubtful from the point of view of the constitutional principle of democracy. This legislative decision is one-sided and does not take either representative or direct democracy seriously. It seeks to reconcile the logic that professional politicians and people's representatives can take more rational decisions when it comes to international and supranational politics with the logic that the sovereign people must have the chance to determine their own destiny, no matter what the result would be. The Direct Participation of the Citizens in State Power and Local Self Government Act would appear to presume, with a degree of paradox, that Bulgarian citizens are sufficiently mature to decide whether they want to ratify a treaty, but are less so with regard to possible dissatisfaction with that treaty leading to its denouncement. This situation becomes even more problematic from a democratic point of view if one takes into account the fact that no referendum has been held for either the NATO or EU membership of Bulgaria.

## 3.4 Judicial Review

3.4.1 International treaties are positioned above all domestic normative acts except the Constitution and the interpretative decisions of the Constitutional Court. The same is the situation with the case law of the European Court of Human Rights in Strasbourg. Hence, doubt regarding the application of an international treaty in a judicial or administrative process may only arise where there is doubt concerning its constitutionality. The 1991 Constitution provides for a preliminary control by the Constitutional Court of the constitutionality of international treaties before their ratification.

However, this control is not compulsory but facultative because it can be performed only following the initiative of one-fifth of the MPs, the President, the Council of Ministers, the State Prosecutor General, the Supreme Court of Cassation

33 Belov 2009, pp. 422–507.

or the Supreme Administrative Court. If these institutions do not make use of their competence to request a review of the constitutionality of an international treaty by the Constitutional Court, then according to Decision No. 9 of 1999, they may initiate ex post constitutional review. However, some authors stipulate that ex post control by the Constitutional Court can be carried out only on the constitutionality of the ratification procedure, but not on the content of the international treaty itself.34 The problem is that the Act of Parliament adopted for ratification of an international treaty is a formal act and does not reproduce the text of the treaty. Consequently, according to this logic, there is no other way to stop the application of an unconstitutional international treaty but to denounce the treaty through the same procedure that has been used for its introduction into the Bulgarian system, although this is unlikely to happen in reality.

The pacta sunt servanda principle creates predictability in international relations. Thus, it is a guarantee for something resembling interstate rule of law which preserves the legitimate expectations of the states and their citizens. Hence, indirectly, the pacta sunt servanda principle is also a guarantee for the internal rule of law, especially if the international treaty concerns human rights as well as measures that have a more eminent impact on human welfare and behaviour. The importance of the pacta sunt servanda principle is increasing in the context of global governance at the beginning of the XXI century. No international or supranational co-operation is possible without it.

The activity of both the international and supranational courts and of the domestic courts could sometimes put the pacta sunt servanda principle into question. The practice of the courts may transform it from a rigid and clear obligation to observe international law into a vague and framework duty of general compliance with broad initial standards. On the one hand, the virtual amendment of the treaties by the supranational and international courts might profoundly change their initial scope and the meaning of their provisions in a way that cannot be predicted in advance. Moreover, the judicial 'mastering of the meaning' of treaty provisions may have a curving path or zig-zag trajectory and thus may lead to far-reaching shifts in the obligations the states initially intended to take. On the other hand, the national courts may take decisions for the non-application of international treaties in the national legal order of the respective state, i.e. due to their contradiction with the Constitution. Thus, the biased jurisprudence of the supranational, international and national courts may in the end produce 'judicial battles' and even 'judicial wars'. These would barely be reconcilable with the principle of representative democracy and detrimental to the observance of pacta sunt servanda, legal certainty and thus, ultimately, the rule of law principles.

The jurisprudence of the European Court of Human Rights in Strasbourg and of the CJEU, based on explicit judicial activism, allow for the virtual amendment of the treaties that these courts interpret and safeguard. The initial duties that the Member States of the Council of Europe and of the EU have undertaken have been

34 Tashev 2004, pp. 64–65.

transformed and further developed by these two supranational courts. Notwithstanding the many positive effects of their case law, the activist jurisprudence of the ECHR and especially of the CJEU may lead to the undermining of the principle that international treaties have to be concluded, ratified and amended by democratically elected institutions, the national parliaments and governments.

The non-application of international treaties by the national courts can also put the pacta sunt servanda principle in danger. Key decisions of the supreme and constitutional courts that proclaim the unconstitutionality of international legal standards or that declare that such standards endanger core constitutional and national values, are manifestations of national sovereignty. Hence the judicial dialogue that could possibly emerge out of a 'case law ping-pong' played by the supreme national, international and supranational jurisdictions is actually an expression of a fight for sovereignty. It serves to delimit the seemingly flexible but in fact still very important boundaries between the history and the future of the national and supranational political communities and the core and periphery of the constitutional consensus. Such dialogue raises concerns from the viewpoint of democracy, but is usually legitimised by arguments based in constitutional politics.

The non-observance of the pacta sunt servanda principle due to the non-application of provisions of international treaties by the ordinary courts would be problematic in several aspects. It would undermine the capacity of the political institutions of representative democracy – the parliaments and the governments – to dispose of the realm of discretion needed for the accomplishment of their tasks in international relations. Moreover, such judicial practice may be manifested in a diffuse, polycentric and creeping form, undermining legal certainty, the principle of legitimate expectations and the international obligations of states.

On the other hand, the protection of core constitutional values and principles by both the national courts and the international and supranational courts may serve as an important guarantee for the ethical, social and political integrity of the communities for whom the relevant courts are presumed to speak, and may represent a safeguard for human liberty and human rights. At a time when the legitimate channels for democratic representation are malfunctioning, countermajoritarian institutions such as the courts may play an important and even crucial role in the preservation and development of the constitutional consensus, the constitutional identity and personal prosperity. In such case, however, the rule of law will prevail over the separation of powers and democracy.

## 3.5 The Social Welfare Dimension of the Constitution

3.5.1–3.5.2 The issues raised by these questions are not directly relevant for Bulgaria.

# 3.6 Constitutional Rights and Values in Selected Areas of Global Governance

3.6.1 The issues raised by these questions are not directly relevant for Bulgaria.

## References

Constitutional Justice: the Relation Between National and International Law. Constitutional Court of the Republic of Lithuania, Vilnius, pp. 69–75.

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# The Constitution of Croatia in the Perspective of European and Global Governance

#### Iris Goldner Lang, Zlata Đurđević and Mislav Mataija

Abstract The report from the newest EU Member State – Croatia – explains that the constitutional system represents a break from the former socialist system, where the Constitution had been more 'political' and not directly applied in practice. The constitutional order is highly influenced by the German constitutional tradition, and the Constitutional Court often cites the German Constitutional Court. The Constitution has been amended with regard to the EU in a very extensive manner. No significant constitutional issues have arisen with regard to EU or international law. By way of some limited exceptions, trade unions and individuals unsuccessfully sought to contest austerity measures required as part of the EU Council's excessive deficit proceedings in the Constitutional Court. The Constitutional Court has additionally adjudicated questions on whether referendums regarding privatisation of certain public services are permissible, given that the referendum outcome

Iris Goldner Lang wrote Part 1 and Sects. 2.4–2.9. Zlata Đurđević wrote Sect. 2.3. Mislav Mataija wrote Sects. 2.1–2.2, 2.10–2.13 and Part 3.

All websites accessed 30 May 2015. Text submitted 7 July 2015.

Z. Đurđević e-mail<EMAIL_ADDRESS>
M. Mataija e-mail<EMAIL_ADDRESS>
© The Author(s) 2019 A. Albi and S. Bardutzky (eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law, https://doi.org/10.1007/978-94-6265-273-6\_24

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Iris Goldner Lang is Jean Monnet Professor and Chairholder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue at the Faculty of Law, University of Zagreb. e-mail<EMAIL_ADDRESS>
Zlata Đurđević is Professor of Criminal Procedural Law, Faculty of Law, University of Zagreb. e-mail<EMAIL_ADDRESS>
Mislav Mataija was at the time of writing Lecturer in European Public Law, University of Zagreb, and is at the time of publication a Member of the Legal Service of the European Commission (all views expressed are personal and the sections written by this author were written prior to commencement of work at the European Commission). e-mail<EMAIL_ADDRESS>
I. Goldner Lang (&) Z. Đurđević M. Mataija University of Zagreb, Zagreb, Croatia e-mail<EMAIL_ADDRESS>
could lead to incompatibility with EU law. The increased cost of water in relation to a relevant EU Directive was the object of the first reference for a preliminary ruling from Croatia. With regard to the European Arrest Warrant (EAW), some legislative guarantees (such as the statute of limitations) were removed from an implementing law following severe criticism and the threat of financial sanctions from the European Commission. The move through the EAW system towards in absentia judgments has also led to some debate, given the historical experience with a high number of in absentia judgments during the 1991–1995 war and the subsequent finding that a vast majority of these trials had violated fair trial rights.

Keywords The Constitution of Croatia Constitutional amendments regarding EU and international co-operation The Croatian Constitutional Court Constitutional review statistics Fundamental rights and the rule of law European Arrest Warrant Statute of limitations and in absentia judgments Excessive deficit proceedings Austerity measures and social rights Privatisation of public services Referendum Data Retention Directive

## 1 Constitutional Amendments Regarding EU Membership

## 1.1 Constitutional Culture

1.1.1 In the socialist system of the former Yugoslavia the Constitution could have been characterised as falling more into the second category of 'political' constitutions, as it was considered to be a set of ideopolitical principles which were not linked to legal practice and which were not supposed to be directly applied in practice.1 This perception still persists to a certain degree today with regard to the Croatian Constitution, but it has undergone a slow, but visible change, particularly in the last couple of years, with the growing importance of both the Constitution and the Constitutional Court. Different branches of the government and other actors on the Croatian political scene, such as trade unions and diverse interest groups, are using the Constitution and the important position of the Constitutional Court to advance their political agenda.2 However, outside the political forum, Croatian

1 Smerdel 2010, p. 6.

2 E.g. for the applications of the Croatian Parliament to the Constitutional Court see Judgments U-VIIR-1159/2015, 8 April 2015 and U-VIIR-1158/2015, 21 April 2015, of the Constitutional Court, where the Croatian Parliament asked the Constitutional Court to determine whether it is constitutional to put questions on outsourcing and on giving highways in concession at national referendums (for the lowering of the referendum threshold, see the answer to question 1.2.3). On the other hand, former Croatian President Ivo Josipović stood for constitutional amendments in his 2013/2014 presidential campaign. See also the proposal for constitutional review initiated by nine trade unions as a response to Government austerity measures, discussed in more detail in the answer to question 2.7.3. (Judgment U-I-1625/2014 and others, U-I-241/2015, U-I-383/2015, U-II-1343/2015, 30 March 2015).

judges are still extremely reluctant to use or rely on the Constitution in their judgments.3

Croatian constitutional tradition is and will surely continue to be highly and predominantly influenced by the German constitutional tradition, as well as by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). This influence is felt both at the level of constitutional provisions and of the judgments of the Constitutional Court. The latter is evidenced by the fact that by October 2013, the Constitutional Court had relied on the case law of the European Court of Human Rights (ECtHR) in more than 1,000 of its decisions.4

In the context of constitutional amendments which have been made under the influence of the ECHR, two examples can be provided. First, Art. 16 of the Croatian Constitution was amended in 2000 by inserting a new paragraph providing for the principle of proportionality which was previously not included in the Constitution.5 As explained in the National Report provided by the Croatian Constitutional Court for the XVIth Congress of the Conference of European Constitutional Courts, this insertion was 'predominantly the result of a [previous] judgment … of the Constitutional Court …, which was based on the principle of proportionality' and in which the Constitutional Court 'carried out the proportionality test as performed in the case-law of the ECtHR'. 6 The other example is the 2000 constitutional amendment whereby Art. 29 on the principle of a fair trial was aligned to Art. 6(1) of the Convention.7

On the other hand, the influence of the German Federal Constitutional Court (Bundesverfassungsgericht, hereinafter BVerfG) is most visible in the judgments of the Croatian Constitutional Court, in which it often cites the relevant paragraphs of judgments of the BVerfG in Croatian and the original text in German. On the occasions that it finds it necessary to establish whether a common standard on a certain issue can be found in a number of signatory states to the Convention, the Constitutional Court performs a comparative overview.8

The influence of the BVerfG can be expected to continue to be felt in the reasoning of the Croatian Constitutional Court both in matters which are not related to EU law and in the context of the relation between Croatian constitutional law and

3 For a rare example of a Croatian judge who decided to initiate a constitutional review procedure and a critique of the formalistic reasoning of the Constitutional Court, see the Report by T. Ćapeta in 'Member States' Constitutions and EU Integration' in the project coordinated by S. Griller, University of Salzburg, Hart, forthcoming in 2019.

4 National Report of the Constitutional Court of the Republic of Croatia based on the Questionnaire for the XVIth Congress of the Conference of European Constitutional Courts, 2013, p. 18.

5 The Vice-president of the Croatian Constitutional Court, Dr. Snjezana Bagić, recently wrote her Ph.D. thesis on the principle of proportionality in the case law of the European courts and its impact on the case law of the Croatian courts; Bagić 2013.

6 National Report of the Constitutional Court of the Republic, n. 4, p. 14.

7 Ibid., p. 14.

8 Judgment U-I-295/2006 et al, 6 July 2011.

EU law. So far, there have been only two judgments where the Constitutional Court has invoked Art. 145 of the Croatian Constitution (which stipulates the relationship between national and EU law) by stating that 'the Constitution is, by its legal nature, supreme to EU law'. 9 One can expect future judgments of the Constitutional Court to take a more detailed stance on the relation between Croatian and EU law, as well as the further influence of the BVerfG in this segment of the Constitutional Court's reasoning.

1.1.2 The Croatian Constitution lays importance on both of these areas. Title III, which encompasses 57 articles, in a very detailed way provides for the protection of human rights and fundamental freedoms. On the other hand, there are several provisions invoking sovereignty. Article 2, as the crucial sovereignty provision, provides that '[t]he sovereignty of the Republic of Croatia is inalienable, indivisible and non-transferable' and that '[t]he Republic of Croatia may conclude alliances with other states, retaining its sovereign right to decide upon the powers to be so delegated and the right to freely withdraw therefrom'. 10 Further, Art. 142 entitled 'Association and Dissociation', which was used as the legal basis for EU membership (as explicitly stated in Art. 143 of the Constitution), provides for the procedure for associating Croatia into alliances with other states. It also contains a provision explicitly prohibiting Croatian association in alliances which could lead 'to a renewal of a South Slavic state union or to any form of consolidated Balkan state'. 11

# 1.2 The Amendment of Constitutions in Relation to the European Union

1.2.1 Croatia acceded to the European Union on 1 July 2013. The act of accession was preceded by a lengthy and difficult process of accession negotiations. Croatia applied for EU membership on 21 February 2003, at the time when its Stabilisation and Association Agreement, signed in October 2001, was not yet in force. Having acquired candidate status in June 2004, accession negotiations were launched on 3 October 2005 and closed on 30 June 2011. The Accession Treaty was signed five months later on 9 December 2011. The constitutional amendment which paved the way for Croatian accession to the EU was adopted in June 2010 and was published in the Official Gazette of the Republic of Croatia 76/10 of 18 June 2010.

9 For the discussion of these judgments, in terms of the relation of national and EU law, see the answer to question 1.2.1. All translations of Croatian court judgments are by the authors.

10 All translations of the Constitution are from the English translation on the website of the Croatian Parliament. http://www.sabor.hr/Default.aspx?art=2405.

11 Arguing that the crucial aim of this constitutional provision was dissociation from the former Yugoslavia, Sinisa Rodin suggested that a different legal basis for the transfer of powers to an international organisation or an association could be used for Croatian accession to the EU: see Rodin 2007, p. 23.

The constitutional amendment had a threefold role. First, it inserted a separate Chapter VII, entitled 'European Union', into the Croatian Constitution. The purpose of this chapter is to provide the legal grounds for Croatian membership in the EU and to regulate the status of EU law in the national legal order. The provisions of Chapter VII regulate the legal grounds for membership and the transfer of constitutional powers (Art. 143);12 representation of Croatian citizens and institutions in the EU institutions and decision-making process (Art. 144);13 and the relationship of national and EU law (Art. 145);14 and they reiterate the rights of EU citizens (Art. 146).15 The amendment came into force on 1 July 2013, the date of Croatian accession to the EU.

12 Article 143 of the Croatian Constitution, entitled 'Legal Grounds for Membership and Transfer of Constitutional Powers' provides:

'Pursuant to Article 142 of the Constitution, the Republic of Croatia shall, as a Member State of the European Union, participate in the creation of European unity in order to ensure, together with other European states, lasting peace, liberty, security and prosperity, and to attain other common objectives in keeping with the founding principles and values of the European Union. Pursuant to Articles 140 and 141 of the Constitution, the Republic of Croatia shall confer upon the institutions of the European Union the powers necessary for the enjoyment of rights and fulfilment of obligations ensuing from membership.'

13 Article 144 of the Croatian Constitution, entitled 'Participation in European Union Institutions', stipulates:

'The citizens of the Republic of Croatia shall be directly represented in the European Parliament where they shall, through their elected representatives, decide upon matters falling within their purview.

The Croatian Parliament shall participate in the European legislative process as regulated in the founding treaties of the European Union.

The Government of the Republic of Croatia shall report to the Croatian Parliament on the draft regulations and decisions in the adoption of which it participates in the institutions of the European Union. In respect of such draft regulations and decisions, the Croatian Parliament may adopt conclusions which shall provide the basis on for the Government's actions in European Union institutions.

Parliamentary oversight by the Croatian Parliament of the actions of the Government of the Republic of Croatia in European Union institutions shall be regulated by law.

The Republic of Croatia shall be represented in the Council and the European Council by the Government and the President of the Republic of Croatia in accordance with their respective constitutional powers.'

14 Article 145 of the Croatian Constitution is cited in the answer to question 1.3.1.

15 Article 146, entitled 'Rights of European Union Citizens' stipulates:

'Citizens of the Republic of Croatia shall be European Union citizens and shall enjoy the rights guaranteed by the European Union acquis communautaire, and in particular:

– freedom of movement and residence in the territory of all Member States,

– active and passive voting rights in European parliamentary elections and in local elections in another Member State, in accordance with that Member State's law,

– the right to the diplomatic and consular protection of any Member State which is equal to the protection provided to own citizens when present in a third country where the Republic of Croatia has no diplomatic-consular representation,

– the right to submit petitions to the European Parliament, complaints to the European Ombudsman and the right to apply to European Union institutions and advisory bodies in the

Further, the 2010 Constitutional amendment was necessary in order to satisfy certain EU membership requirements, and a number of constitutional provisions were amended for this purpose.16 Finally, the crucial amendment, which facilitated if not enabled Croatian accession to the EU, was the rule on the requirement of a referendum which had to take place as a necessary part of the accession procedure. Namely, for the positive outcome of a referendum, Art. 141 of the pre-2010 version of the Constitution, as the legal basis of accession,17 required the majority vote of all voters in Croatia. This strict rule was toned down in order to prevent the possible failure of the referendum. The wording 'the majority vote of all voters in the state' was thus changed to 'the majority vote of all voters voting in the referendum'. The low turnout of only about 44% of eligible voters in Croatia at the referendum which took place on 22 January 2012 testified to the fact that the fear of not fulfilling the strict referendum requirement contained in the then Art. 141 had been reasonable. Out of all voters who took part in the referendum, more than 66% voted in favour of accession, which sufficed for a positive outcome.

1.2.2 The 2010 constitutional amendment followed the stipulated amendment procedure. Generally, amendments to the Croatian Constitution may be proposed by a minimum of one-fifth of the members of the Croatian Parliament, the Croatian President or the Croatian Government.18 Accordingly, on 1 October 2009 the Croatian Government proposed the 2010 constitutional amendment. Based on this proposal and the proposal submitted by members of the Croatian Parliament on 16 October 2009, on 30 April 2010 the Croatian Parliament adopted the Decision on the Commencement of the Amendment of the Constitution of the Republic of Croatia.19 Based on Art. 148(1) of the Constitution, such a decision must be

Croatian language, as well as in all the other official languages of the European Union, and to receive a reply in the same language.

All rights shall be exercised in compliance with the conditions and limitations laid down in the founding treaties of the European Union and the measures undertaken pursuant to such treaties.

In the Republic of Croatia, all rights guaranteed by the European Union acquis communautaire shall be enjoyed by all citizens of the European Union.'

16 Amendments included the provisions on the position of the Croatian National Bank (Art. 53) and the State Audit Office (Art. 54), as well as the abandoning of the previous rule of a complete ban on extradition of Croatian nationals which now became possible in order to comply with the European Arrest Warrant (Art. 9).

17 There was no consensus on the question whether Croatian accession should take place on the basis of Art. 141 of the pre-2010 version of the Constitution (which regulated Croatia's association in and dissociation from international alliances with other states) or based on the general provision of Art. 139 of the pre-2010 version of the Constitution (which regulated the conclusion of international treaties and which, together with the then Art. 86, contained a more lenient referendum rule requiring a majority vote of all voters who took part in the referendum). Finally, Art. 141 was taken as the legal basis for accession. For the discussion on possible constitutional bases for EU accession, see Rodin, supra n. 11; Ćapeta 2008, pp. 1–3.

18 Article 147 of the Constitution (Art. 142 of the pre-2010 version of the Constitution).

19 Official Gazette of the Republic of Croatia 56/10.

adopted by the majority of all Members of Parliament.20 The decision to amend the Constitution has to be made by a two-thirds majority of all deputies.21 Within the framework of the 2010 constitutional amendment, such a decision was made on 16 June 2010, whereby 133 deputies voted for the amendment, four deputies voted against it and one abstained.

1.2.3 The Republic of Croatia is a rather young state, as its establishment as a sovereign and independent state dates back to 25 June 1991 when the Croatian Parliament passed a Constitutional Decision on the Sovereignty and Independence of Croatia22 – thus initiating the proceedings of dissociation from the other republics and from the Socialist Federal Republic of Yugoslavia – and the Declaration on the Establishment of the Sovereign and Independent Republic of Croatia.23 On 22 December 1990, the Croatian Parliament passed the Constitution of the Republic of Croatia, which has undergone several revisions and amendments, and is still in force today.24 The first amendment took place in 1997,25 the second one in 200026 and the third in 2001.27 The fourth amendment took place in 2010 and, as described in Sect. 1.2.1, its motif was the enablement and facilitation of EU accession.28

The last constitutional amendment to date took place in 201329 as the result of a controversial national referendum on the inclusion in the Constitution of the definition of marriage as a union between a woman and a man. Namely, based on Art. 87(3) of the Constitution, the Croatian Parliament 'shall call referendums' on proposals to amend the Constitution, a bill or any such other issue as may fall within its purview 'when so requested by ten percent of the total electorate of the Republic of Croatia'. Following a successful petition of the conservative, catholic initiative 'In the name of the family', which managed to collect the signatures of more than 10% of the eligible voters in Croatia, a referendum was held on 1 December 2013. The turnout was rather low, as only a little bit less than 38% of eligible voters took part in the referendum. However, the 2010 constitutional amendment had changed the referendum threshold from 'the majority of all voters in Croatia' to 'the majority of all voters in the referendum', for the purpose of securing Croatian accession to the EU. This constitutional amendment indirectly enabled a positive outcome in the 2013 referendum, as out of those who voted, 65% supported the amendment, which consequently led to the adoption of the 2013

20 Article 143(1) of the pre-2010 version of the Constitution.

21 Article 149 of the Constitution (Art. 144 of the pre-2010 version of the Constitution).

22 Official Gazette of the Republic of Croatia 31/91.

23 Official Gazette of the Republic of Croatia 31/91.

24 Official Gazette of the Republic of Croatia 56/90.

25 Official Gazette of the Republic of Croatia 135/97.

26 Official Gazette of the Republic of Croatia 113/2000.

27 Official Gazette of the Republic of Croatia 28/2001.

28 Official Gazette of the Republic of Croatia 76/2010.

29 Official Gazette of the Republic of Croatia 5/2014.

constitutional amendment. For this reason the 2010 lowering of the referendum threshold, which had been passed in order to ensure Croatian accession to the EU, directly enabled and led to the 2013 constitutional amendment.30

1.2.4 As explained previously, the EU-related amendment proposals did materialise in practice. There are currently no provisions of the Constitution that are considered to be in need of amendment in view of EU membership.

# 1.3 Conceptualising Sovereignty and the Limits to the Transfer of Powers

1.3.1 The transfer or delegation of powers to the EU Croatia is a monist state, based on Art. 141 of its Constitution.

Further, Art. 143(2) of the Croatian Constitution provides:

Pursuant to Articles 140 and 141 of the Constitution, the Republic of Croatia shall confer upon the institutions of the European Union the powers necessary for the enjoyment of rights and fulfilment of obligations ensuing from membership.

The supremacy and direct effect of EU law Article 145 of the Constitution, entitled 'European Union law', is the most important Constitutional provision in terms of application of EU law in the national legal order. It opens the Croatian legal order to EU law. It provides:

The exercise of the rights ensuing from the European Union acquis communautaire shall be made equal to the exercise of rights under Croatian law.

All the legal acts and decisions accepted by the Republic of Croatia in European Union institutions shall be applied in the Republic of Croatia in accordance with the European Union acquis communautaire.

Croatian courts shall protect subjective rights based on the European Union acquis communautaire.

Governmental agencies, bodies of local and regional self-government and legal persons vested with public authority shall apply European Union law directly.

Paragraph 1 provides for the principle of equivalent legal protection based on EU law and national law. Paragraph 2, which states that EU legal acts have to be applied 'in accordance with the acquis communautaire', indirectly lays down the application of the principles of EU law such as supremacy, direct and indirect effect. Paragraph 3 provides for the principle of direct effect of EU law and paragraph 4

30 For an analysis and a critique of the Croatia constitutional referendum defining marriage as a union between a man and a woman, see Orsolic Dalessio T. (2014, January 23) The Interplay of Direct and Indirect Democracy at Work: Croatia's Battle Over the Rights of Same-Sex Couples. Jurist forum. http://jurist.org/forum/2014/01/tina-dalessio-croatia-referendum.php.

enables administrative direct effect, meaning that not only national courts but also national administrative bodies have to apply EU law.

Indeed, in a recent judgment the Croatian Supreme Court made it clear that EU law forms part of the Croatian legal order and 'must be applied, moreover it is superior to national law'. This duty to apply EU law concerns 'all legal relationships that fall within the scope of application of European Union law, and that [take] place after the accession of the Republic of Croatia into the European Union'. 31

However, all these principles and rules exist based on the interpretations of EU law provided by the Court of Justice of the European Union (CJEU). For this reason Art. 145 of the Constitution can be understood as being of a declaratory and not of a constitutive nature.

1.3.2 In the past almost two years following the Croatian accession to the EU and the 2013 Constitutional amendment, there have been only two judgments in which the Constitutional Court has referred to Art. 145 of the Croatian Constitution.32 However, the Court did so only in stating that it was not necessary to examine whether the issue disputed in the case complies with Art. 145 of the Constitution, due to the fact that the Constitution is, by its legal nature, supreme to EU law.33 One could infer two conclusions based on this statement. First, if an issue is contrary to the Croatian Constitution, there is no need to address its compliance with EU law, as the Constitution is supreme to EU law. On the other hand, if an issue complies with the Croatian Constitution, it will be admissible based on the Constitution, regardless of whether the same conclusion would be reached based on EU law. In the latter example, the case might undergo an analysis of compliance with EU law, but the outcome of the compliance analysis would be irrelevant in the end due to the fact that compliance with the Croatian Constitution had already been established and the Constitution is supreme to EU law.

1.3.3 See the answers to questions 1.2.1, 1.3.1 and 1.3.2.

1.3.4 See the answers to questions 1.2.1, 1.3.1 and 1.3.2.

31 Revt 249/14-2, decision of 9 April 2015.

32 The numbering provided by the Constitutional Court is different (Art. 141c) from the one provided in the Official Gazette, which can create misunderstandings and errors. Thus, the numbering of the newly inserted articles, as provided in the Official Gazette 85/10 (Art. 143–146) does not match the numbering provided in the version published on the website and cited in the judgments of the Constitutional Court (Art. 141a–141c).

33 Paragraph 46 of Judgment U-VIIR-1159/2015, 8 April 2015, of the Croatian Constitutional Court on the application by the Croatian Parliament to the Constitutional Court to determine whether the question proposed to be put at the national referendum on outsourcing is in conformity with the Constitution; Para. 60 of Judgment U-VIIR-1158/2015, 21 April 2015, of the Croatian Constitutional Court on the application by the Croatian Parliament to the Constitutional Court to determine whether the question proposed to be put at the national referendum on giving highways in concession is in conformity with the Constitution.

As regards EU-friendly interpretation, the previously cited Art. 145(2) of the Croatian Constitution implies the duty to apply basic EU law principles in Croatia, including the indirect or interpretative effect of EU law. Nevertheless, there have not yet been many judgments in which Croatian courts have interpreted Croatian law in light of EU law. However, a 2014 order of the Croatian Supreme Court needs to be singled out, also due to its importance and the politically controversial context of the case, which was also based on the Pupino34 judgment. In its order the Supreme Court stated:

… for the achievement of the aims and the respect for the principles expressed by EU law, national courts are obliged to apply national law in light of the letter and spirit of EU provisions. This means that national law must in practice be interpreted as far as possible in light of the wording and purpose of the relevant framework decisions and directives, in order to thus achieve the result sought by those framework decisions and directives … (as expressly stated in the judgment of the ECJ in Case 105/03 P of 16 June 2005). By acceding to the EU, the Republic of Croatia has also taken on the duty to act in such a way.35

## 1.4 Democratic Control

1.4.1 The involvement of the Croatian Parliament in EU affairs is stipulated both by the Croatian Constitution and the Act on Cooperation of the Croatian Parliament and the Government of the Republic of Croatia.36 Most importantly, the European Affairs Committee monitors the activities of the European Parliament in European affairs, adopts the Work Programme for considering the positions of the Republic of Croatia, and considers EU documents and the positions of Croatia on EU documents, with the authority to adopt conclusions thereon.37

The European Affairs Committee of the Croatian Parliament is in charge of conducting parliamentary scrutiny and subsidiarity checks, but the process may be initiated by any Member of Parliament, parliamentary committee, parliamentary party group or the Government. In 2014 the European Affairs Committee issued one reasoned opinion in the context of a national parliamentary subsidiarity check procedure. In this reasoned opinion, issued on 6 October 2014, the Committee considered that the Proposal for a Directive amending Directives 2008/98/EC on waste, 94/62/EC on packaging and packaging waste, 1999/31/EC on the landfill of waste, 2000/53/EC on end-of-life vehicles, 2006/66/EC on batteries and accumulators and waste batteries and accumulators, and 2012/19/EU on waste electrical

34 Case C-105/03 Pupino [2005] ECR I-05285.

35 Order of the Supreme Court Kž-eun 5/14-4 of 6 March 2014.

36 Official Gazette of the Republic of Croatia 81/13.

37 See the Report of the work of the European Affairs Committee for 2014. http://www.sabor.hr/ fgs.axd?id=42829.

and electronic equipment,38 did not comply with the principle of subsidiarity.39 Both the European Affairs Committee and the Environmental Protection Committee considered that the Proposal did not take into consideration the existing differences among national systems of waste management which prejudiced a balanced development of the European regions. The reasoned opinion was issued within the required 8-week period from the date of the publication of the proposal. However, there were not a sufficient number of reasoned opinions to initiate the 'yellow card' procedure, as only the Austrian, Croatian and Czech parliaments issued reasoned opinions. However, the Juncker Commission has since withdrawn the Proposal.40

Further, as part of the 'political dialogue', the Croatian Parliament sent three opinions to the European Commission in 2014 and received the Commission's responses. The first one related to the application of the principle of subsidiarity in the legislative procedure, the second opinion was on the Proposal of a Regulation on the establishment of the European public prosecutor's office,41 and the third concerned the Proposal of a Regulation amending Regulation 1308/2013 and Regulation 1306/2013 as regards the aid scheme for the supply of fruit and vegetables, bananas and milk in the educational establishments.42

Apart from its role in the subsidiarity procedure and the 'political dialogue', the European Affairs Committee composes an annual parliamentary Work Programme which contains the list of EU acts that are to be scrutinised. The specialised parliamentary committees may propose draft acts from their area of responsibility to be included in the Work Programme. When a draft act, together with the corresponding Position of the Republic of Croatia, is delivered to the European Parliament, the relevant specialised committees may discuss them and send their opinions to the European Affairs Committee which may, by a majority of votes of its members, draw a Conclusion on the Position of the Republic of Croatia, on which the Government must base its actions in the EU institutions. So far, the Committee has not used this competence in practice.

1.4.2 Two of the referendums that have been held in Croatia have been directly or indirectly linked to Croatian accession to the EU. The first took place on 22 January 2012 and was part of the Croatian accession process. As explained in the answer to question 1.2.1, due to what proved to be a justified fear of a low turnout, the wording of the Constitutional provision previously requiring 'the majority vote of all voters in the state' had been amended to 'the majority vote of all voters in the referendum', which enabled a positive outcome of the accession referendum, despite the low turnout.

38 COM(2014) 397 final.

39 Reasoned opinion of the Croatian Parliament on COM (2014)397. http://www.ipex.eu/IPEXL-WEB/dossier/files/download/082dbcc548cd77e10148e4f3bf0f181a.do.

40 Commission response. http://www.ipex.eu/IPEXL-WEB/dossier/files/download/ 082dbcc54d4a5c3c014d4cc47c6b0237.do.

41 COM(2013) 534 final.

42 COM(2014) 32 final.

The second referendum, discussed in the answer to question 1.2.3, on the inclusion in the Constitution of the definition of marriage as a union between a woman and a man, took place in 2013 and, even though it was not directly related to Croatian membership in the EU, its positive outcome was a direct consequence of the 2010 Constitutional amendment which changed the previously high Constitutional referendum threshold of 'the majority of all voters in Croatia' to 'the majority of all voters in the referendum'. This 2010 Constitutional amendment of the referendum threshold, which was done in the context of securing Croatian accession to the EU, thus enabled a completely different Constitutional amendment not linked to EU membership.

## 1.5 The Reasons for, and the Role of, EU Amendments

1.5.1–1.5.3 See the answer to question 1.2.1. As explained previously, the Croatian Constitution has a number of EU amendments. These are fairly extensive, and they were partly based on input from a working group of academics.43

## 2 Constitutional Rights, the Rule of Law and EU Law

# 2.1 The Position of Constitutional Rights and the Rule of Law in the Constitution

2.1.1 As was seen in Sect. 1.1.2, the Constitution regulates, in a detailed way, human rights and fundamental freedoms in title III, which encompasses 57 articles. Proportionality is a general requirement for governmental action limiting individual rights and freedoms (Art. 16). A specific rule prohibits the retroactive application of laws and other measures, except, as far as laws are concerned, in exceptional circumstances (Art. 90). More broadly, Art. 3 of the Constitution provides that 'freedom, equal rights, national and gender equality, peace-making, social justice, respect for human rights, inviolability of ownership, conservation of nature and the environment, the rule of law and a democratic multiparty system are the highest values of the constitutional order of the Republic of Croatia'. Article 3 of the Constitution has been applied by the Constitutional Court (CC) on a number of occasions.

In addition, the Constitution contains specific and relatively detailed chapters on civil and political rights and economic, social and cultural rights.

All constitutional provisions, including the ones cited above, are in principle enforceable in courts. There is no doctrine according to which certain parts of the

43 See Smerdel 2010, p. 4. See also Rodin 2007 and Rodin 2010.

Constitution are off limits to (some) courts. Nevertheless, the Constitution is almost never explicitly relied upon in adjudication, except in the practice of the Constitutional Court. There are two possible reasons for this. First, like in some other European legal systems, Croatian courts cannot disapply legislation or find norms unconstitutional in an individual case – if a court considers the legal norms in question to run counter to the Constitution, it must refer the case to the Constitutional Court.44 The second reason is the legal culture: adjudication is largely seen as the application of laws. The Constitution, but also international agreements, case law, other sources of law as well as non-binding materials such as scholarly works, are very rarely used by ordinary courts, and have only been used by the Supreme Court in a few exceptional instances. In this respect, there is a strong divide between the Constitutional Court and other courts.

2.1.2 Article 16 of the Constitution provides:

Freedoms and rights may only be curtailed by law in order to protect the freedoms and rights of others, the legal order, and public morals and health. Any restriction of freedoms or rights shall be proportionate to the nature of the need to do so in each individual case.

2.1.3 Article 3 of the Constitution has been referred to above in Sect. 2.1.1. Article 3 and the principle of the rule of law have been relied upon by the Constitutional Court to impose general requirements on the legislator. Notably, the Constitutional Court has frequently pointed out that the legislator is authorised to independently regulate economic, legal and political relationships, but is required to respect the requirements imposed by the Constitution, and in particular those that 'arise from the principle of the rule of law' and the principle of legal certainty. Thus, the notion of the rule of law imposes general requirements on the legislator.45

Some decisions of the Constitutional Court have fleshed out this notion. For example, the rule of law requires that laws are 'general and equal for all', that their consequences must be foreseeable by the addressees and also that they must conform to the legitimate expectations of the parties in each specific case to which they are applied.46 This concerns not only formal legality and constitutionality, but controls substantive as well as procedural aspects,47 and requires laws to be sufficiently determinate.48 The separation of powers is an aspect of the rule of law, meaning that the legislator cannot intrude into the constitutionally defined powers and duties of the 'highest State authorities', such as the State Council for the Judiciary, the body in charge of judicial appointments.49 The rule of law is also connected to the rule allowing only for the exceptional retroactivity of laws as

44 Constitutional Act on the Constitutional Court of the Republic of Croatia ('Narodne novine' 49/ 02), Art. 37.

45 U-I-659/1994 et al, 15 March 2000, para. 10.

46 Ibid., para. 11.1.

47 Ibid., para. 11.

48 Ibid., para. 19.2.

49 Ibid., paras. 12–13.

outlined above.50 The requirements of the rule of law are thus said to be especially strict in relation to the transitional provisions of laws (especially those which regulate the retroactive application of such laws), which 'best show the relationship of the legislator to constitutionally protected values and its respect for constitutional guarantees'. 51 In that sense, the rule of law may even prevent the legislator from limiting or eliminating previously recognised subjective rights, insofar as such restrictions are not justified by a legitimate aim in the public interest.52

The judgments of the ECtHR and, occasionally, of the CJEU, have been used in support of the Constitutional Court's conclusions in this respect. For example, the Court cited the ECtHR judgment Kozlica v. Croatia53 and the CJEU judgment Tsapalos54 to support the general point that procedural rules in new legislation can be applied immediately to pending proceedings.55 The requirement that laws must be available, sufficiently precise and foreseeable, and that any discretionary powers given to State authorities must be circumscribed, was supported by invoking the ECtHR rulings in Sunday Times and Silver and Others. 56

The right of access to courts is an aspect of what the Constitutional Court calls the 'right to a court', and is governed by Art. 29 of the Constitution, frequently cited alongside Art. 6 of the ECHR. Article 29 provides in its introductory clause that '[e] veryone shall be entitled to have his or her rights and obligations, or suspicion or accusation of a criminal offence decided upon fairly before a legally established, independent and impartial court within a reasonable period'. The analysis is usually conducted under this provision and not under a general principle of the 'rule of law', but the two are connected. The Court has pointed out that the 'principle according to which recourse to a court must be possible is one of the generally recognised basic principles of law'. 57

Finally, the Constitution contains a general proportionality rule (Art. 16) according to which 'freedoms and rights may only be curtailed by law in order to protect the freedoms and rights of others, the legal order, and public morals and

50 U-I-4113/2008 et al, 12 August 2014, para. 22.

51 Ibid., para. 38.

52 Ibid., para. 64, 'When [it] authorises the Croatian Parliament to directly and independently decide on the regulation of economic, legal and political relations in the Republic of Croatia "in accordance with the Constitution and laws", the Constitution lays down a requirement that those "decisions" must respect basic constitutional values and take account of protected constitutional goods. In that sense, generally speaking, whenever it limits or eliminates previously recognised rights the legislator must have a legitimate aim in the public interest capable of justifying such a measure, and must also respect other requirements arising from the principle of the rule of law, legal certainty and legal predictability that were not raised when those rights were recognised.'

53 Kozlica v. Croatia, no. 29182/03, 2 November 2006.

54 Joined cases C-361/02 and C-362/02 Tsapalos and Diamantakis [2004] ECR I-06405 (case number incorrectly cited as Joined cases C-121/91 and C-122/91, another judgment which makes a similar statement).

55 U-I-663/2011, 15 October 2014.

56 U-I-659/1994 et al, 15 March 2000, para. 19.5.

57 U-III/760/2014, 13 November 2014, para. 7.1.

health' (emphasis added), and Art. 31 provides that '[n]o one may be punished for an act which, prior to its commission, was not defined as a punishable offence by domestic or international law, nor may such individual be sentenced to a penalty which was not then defined by law'. Article 90 provides for the publication of 'laws and other regulations of government bodies' in the official journal and requires that ordinances of bodies vested with public authority 'be published in an accessible manner, in compliance with law' before their entry into force. Laws can enter into force no earlier than the eighth day after publication, except in exceptionally justified cases. See also the answer to question 2.5.1 below.

# 2.2 The Balancing of Fundamental Rights and Economic Freedoms in EU Law

2.2.1 As of yet, there do not seem to be any examples of a Croatian court addressing a conflict between the EU fundamental freedoms and constitutional rights. For that matter, the rapporteurs are not aware of any high-profile conflicts between the EU free movement rules and Croatian law adjudicated before the Croatian courts.

The approach of the Constitutional Court to the adjudication of national constitutional rights may, however, be relevant. For example, Art. 50(2) of the Constitution provides that '[f]ree enterprise and property rights may be exceptionally restricted by law for the purposes of protecting the interests and security of the Republic of Croatia, nature and the human environment and human health'. In reviewing the constitutionality of laws in this respect, the Constitutional Court has loosely followed the approach of the ECtHR. In a recent decision, it applied a test containing the following questions: (1) does the provision at issue interfere in addressees' property rights?; (2) does it have a legitimate aim?; (3) is it proportionate to the legitimate aim?; (4) does it impose an excessive burden to its addressees?; (5) does it have discriminatory effects?58

In the majority of cases, the Constitutional Court tends to defer to legislative choices on issues related to freedom of entrepreneurship and property rights, at least as long as such measures are not discriminatory and do not violate rule of law guarantees such as predictability. One exception is a 2009 decision declaring certain provisions of the Retail Act on Sunday Trading to be unconstitutional.59 First, the ban on Sunday trading with the aim of protecting workers failed the proportionality test, because the legislator cannot rely on the ineffective application of general labour law rules providing for minimum weekly rest as an argument for a specific working time regulation in retail trade. In addition, the detailed exemptions for certain categories of shops were held to violate Art. 49 of the Constitution (the 'equal legal status' of entrepreneurs on the market). The bar seems to have been set

58 U-I-381/2014 et al, 12 June 2014.

59 U-I/642/2009, 9 July 2009.

quite high here: the Court essentially found that the rules on exceptions were too detailed ('excessive normativism' in the Court's terms) which is inappropriate from the point of view of freedom of entrepreneurship, and that they violate Art. 49 of the Constitution because it could not be 'ruled out beyond any doubt' that the law resulted in the unequal treatment of different groups of traders.60

# 2.3 Constitutional Rights, the European Arrest Warrant and EU Criminal Law

The relevant provisions of the Constitution of the Republic of Croatia are:

Article 22

Human liberty and personality shall be inviolable.

No one shall be deprived of liberty, nor may such liberty be restricted, except when specified by law, upon which a court shall decide.

Article 24

No one may be arrested or detained without a written court order grounded in law. Such an order has to be read and presented to the person placed under arrest at the moment of said arrest.

The police authorities may arrest a person without a warrant when there is reasonable suspicion that such person has perpetrated a grave criminal offence as defined by law. Such person shall be promptly informed, in understandable terms, of the reasons for arrest and of his/her rights as stipulated by law.

Any person arrested or detained shall have the right to appeal before a court, which must forthwith decide on the legality of the arrest.

Article 25

…

Whosoever is detained and indicted of a criminal offence shall have the right to be brought before a court within the minimum time specified by law and to be acquitted or convicted within the statutory term.

A detainee may be released on bail to defend him-/herself.

Whosoever is illegally deprived of liberty or convicted shall, in compliance with law, be entitled to indemnification and a public apology.

Article 28

Everyone is presumed innocent and may not be held guilty of a criminal offence until such guilt is proven by a binding court judgment.

60 Ibid., para. 11.2.

Article 29

Everyone shall be entitled have his or her rights and obligations, or suspicion or accusation of a criminal offence decided upon fairly before a legally established, independent and impartial court within a reasonable period.

…

Article 31

No one may be punished for an act which, prior to its commission, was not defined as a punishable offence by domestic or international law, nor may such individual be sentenced to a penalty which was not then defined by law.

#### 2.3.1 The Presumption of Innocence

<IP_ADDRESS> In Croatia, criminal proceedings commence with the establishment of reasonable suspicion, which is a higher level of suspicion based on evidence and not only on indicia. Also, detention can be ordered only if there is reasonable suspicion that a person has committed a crime. Thus, in order to commence criminal proceedings or to order detention, it is necessary that a prosecutor and/or a judge verify on the basis of collected evidence that there is reasonable suspicion. The requirement of establishing reasonable suspicion based on evidence emanates from the presumption of innocence and protects the citizen from coercive state powers. The ECtHR has established that '[h]aving a 'reasonable suspicion' presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence'. 61

The problem with the presumption of innocence in the context of a European Arrest Warrant (EAW) surrender is that there is a possibility that the issuing state does not require the establishment of reasonable suspicion based on evidence for conducting a criminal prosecution but rather a lower level of suspicion and, secondly, that the executing state might not assess whether there is evidence that proves the existence of reasonable suspicion. Therefore, it is possible that a person could be arrested in order to be surrendered to another state without reasonable suspicion being established either in the issuing state or in the executing state. The comparative research shows that EU states have different thresholds for the application of arrest and detention as well as for the commencement of criminal proceedings. Also, the notion of the judicial authority empowered to issue an EAW is not interpreted in all Member States as being a judge, rather in some Member States this may be the prosecuting authority, administrative authority, ministry of justice or police. Therefore, it can be said that suspects in EAW proceedings are not granted the same level of protection emanating from the presumption of innocence as suspects in national criminal proceedings or in traditional extradition proceedings.

61 Stepuleac v. Moldova, no. 8207/06, § 68, 6 November 2007.

This issue has not been raised in the national case law or before the Constitutional Court.

<IP_ADDRESS> According to the Croatian Law on the European Arrest Warrant,62 a hearing in front of a court panel of three judges is obligatory. The suspected person and his/ her defence counsel have to be invited to this hearing. The appellate courts have on several occasions vacated first instance decisions due to a substantial violation of procedural rules in cases where the suspected person or his/her defence lawyer were not summoned or present at the hearing.63 However, the Law envisages that the defence may present evidence but only related to the grounds for refusal to surrender prescribed by law. In many cases the defence has tried to convince the court that the suspect is innocent and has corroborated its claims with evidence. Nevertheless, the courts have continuously refused to assess the existence of reasonable suspicion. The courts have taken the following standpoint:

The European arrest warrant is an instrument of mutual judicial cooperation between the Member States of the European Union that is based on the principles of mutual recognition between Member States and effective cooperation, and contains a legal obligation and moral responsibility of the national courts of the Member State of execution to grant the surrender of the person requested, unless there are the few and expressly prescribed grounds for refusal to surrender (listed in Arts. 20 and 21 ZPSKS-EU). The existence of reasonable suspicion that the person sought committed the offence for which the surrender is requested is not among these grounds, and the court of the state of execution is not even entitled to question whether there is such a probability of committing a crime by the person sought, because it automatically derives from the fact that a European arrest warrant was issued against him/her.64

#### 2.3.2 Nullum crimen, nulla poena sine lege

## Judicial abolishment of prescription of criminal prosecution justified by the abolition of the double criminality requirement

<IP_ADDRESS> The Croatian judicial interpretation of provisions regarding the surrender of citizens for the 32 categories of crimes for which the rule of double criminality has been abolished, is to my knowledge original in the European judicial space and has subjected Croatian citizens to unequal treatment in comparison with other EU citizens. It was preceded by a legislative manoeuvre by the Croatian Parliament related to the implementation of the EAW immediately prior to Croatian EU accession.

62 Act on Judicial Cooperation in Criminal Matters with the EU Member States (OG 91/10, 81/13, 124/13).

63 E.g. VSRH, Kž-eun 6/13-4, 9 August 2013; VSRH, Kž-eun 13/13-4 21, October 2013.

64 VSRH, Kž-eun 17/14-4.

In Croatia the Framework Decision on the European Arrest Warrant (FD EAW) was implemented by the Act on Judicial Cooperation in Criminal Matters with the EU Member States (AJCEU) adopted in July 2010 during the accession negotiations. Although the Act was adopted correctly from the perspective of EU law, the priority of the Croatian legislator was to fulfil a benchmark for closing Chapter 23 'Justice, freedom and security' of the acquis communautaire and not to genuinely implement the EAW in practice. On 28 June 2013, three days before accession, the Croatian Parliament passed the extensive amendment of the AJCEU that established a new institutional and procedural framework for cooperation with EU Member States in criminal matters. Although this was a major problem for the Croatian courts and prosecutors who had to implement the new law in three days after it was passed, domestic and European political and public attention was focused on two amended provisions that allegedly violated EU law. One was the introduction of a temporal limitation on the EAW, which prevented authorities from surrendering anyone suspected of a crime committed before 7 August 2002. Under severe criticism and the threat of financial sanctions from the European Commission, the temporal limitation was removed on 1 January 2015. The second critical change was the transformation of the statute of limitations from a ground for optional non-execution of EAW into a ground for mandatory non-execution. The AJCEU expressly prescribes that the Court shall refuse an EAW if under domestic law the limitation period65 for criminal prosecution or the enforcement of criminal sanctions has expired, and the act falls within Croatian jurisdiction under its own criminal law (Art. 20(2.7)). This amendment, which was exposed to criticism in Croatia but not from abroad, resulted in the infamous interpretation of the Croatian courts, which abolished the rule that the statute of limitations for criminal prosecution can bar the surrender of a person for an offence for which the rule on double criminality does not apply.

The Croatian Supreme Court has introduced the rule that in cases where the verification of double criminality is excluded (Art. 2(2) FD EAW), the verification of the statute of limitations is also excluded: 'When executing an EAW, the court shall not apply domestic legal provisions regarding the statute of limitations for criminal prosecution, because the court does not verify double criminality'. 66 The explanation was that in order to determine whether there is a statute of limitations for the criminal offence in the executing state, it is necessary to establish jurisdiction or to determine which punishable criminal offence the act qualifies as according to the criminal law of the executing state. This means that double criminality would have to be verified, as 'the statute of limitation is organically linked to the prescribed punishment for a criminal offence' and therefore 'the statute of limitations is

65 The limitation periods are prescribed by the statutes of limitations, which set the maximum time period after the commission of an offence that criminal prosecution may be initiated or continued or that a criminal sanction can be enforced after the rendering of a final judgment.

66 Kž-eun 11/13, 20 September 2013.

an integral part of the concept of double criminality'. 67 This interpretation was also challenged in the Constitutional Court, which held that the surrender procedure is not a criminal procedure, but rather a sui generis judicial proceeding the aim of which is to enable criminal prosecution and not to decide on the guilt of the suspect. Therefore, the scope of potential constitutional complaints is very narrow and the Constitutional Court 'is not allowed to question the interpretations of domestic courts regarding domestic law and its application in concrete cases of surrender on the basis of an EAW, unless reasons are presented indicating that the assessment of the courts in a concrete case was "flagrantly and obviously arbitrary"'. 68

It is generally accepted in international and European law as well as in theory on mutual legal assistance that double criminality requires that the act constitute an offence under the law of both states (requesting and executing). Therefore, for determining whether the rule on double criminality permits extradition or surrender, it is enough to find the offence with the constituent elements that correspond to the behaviour which is criminalised in another state. In the theory on international legal assistance, a double criminality requirement is considered to be a substantive requirement while a statute of limitations is a procedural requirement for extradition. They are therefore different legal requirements of which the content is neither overlapping nor mutually exclusive, and thus both requirements have to be checked separately. This was also the interpretation of the Croatian courts in extradition procedures before the implementation of the EAW.69 However, the Croatian Supreme Court has rightly pointed out that in order to find out whether the prosecution is time-barred, the executing state has to establish which offence according to its criminal law is relevant, for which prosecution could be barred, and this procedure presumes the verification of double criminality. The further question for EU law-makers is that if the executing state has to check the rule of double criminality in order to verify the statute of limitations in any case, why was the verification of double criminality abolished in the EAW procedure?

The generally accepted public opinion (from supporters as well as from critics) is that the interpretation of the Croatian courts was motivated by a desire to bypass the newly introduced implementing law, which made the statute of limitations for criminal prosecution a ground for mandatory non-execution. It is alleged that the aim was to enable the surrender of Josip Perković, a former Yugoslav and Croatian intelligence agent suspected of participating in the organisation of the murder of Stjepan Đureković, a Croatian emigrant in Germany, in Munich in 1983, for which Germany had issued an EAW.70 However, in the meantime, this judicial interpretation has become established case law and e.g. it resulted in the recent surrender

67 VSRH, Kž-eun 2/14-5, 17 January 2014; Kž-eun 8/14-4, 7 February 2014.

68 U-III-351/2014, 24 January 2014.

69 VSRH II-8 Kr-268/01-3, 16 May 2001; I KŢ-689/03-3, 29 July 2003.

70 Josip Perković was surrendered to German authorities on 24 January 2014, and the criminal trial against him has commenced in October 2014.

of a person for acts of theft that were committed from 1985 to 1987, i.e. almost 30 years ago.71

This development in Croatia only deepened the further violation of the fundamental rights to legal security and equality of EU citizens that was prompted by the different implementation of the grounds for mandatory and optional non-execution of the EAW in the EU Member States. Already in 2007, the European Commission claimed that one of the weakest points in the implementation of the EAW was the provision on optional grounds for refusal. It was described as 'a patchwork which is contrary to the Framework Decision'. 72 Initially, the intention of the FD EAW was that the grounds for optional non-execution should be determined by judges and not the national legislator, and it was considered to be mistake if a Member State made a ground for optional refusal mandatory.73 However, the reality is that 15 states have introduced the statute of limitations as a ground for mandatory non-execution of an EAW (Austria, Belgium, Czech Republic, Finland, France, Greece, Italy, Lithuania, Hungary, Malta, Netherlands, Germany, Slovenia, Slovakia, Sweden), and 12 states have introduced the statute of limitations as a ground for optional non-execution of an EAW (Bulgaria, Cyprus, Denmark, Estonia, Ireland, Latvia, Luxembourg, Poland, Portugal, Romania, Spain, United Kingdom).

Such varied implementation of the EAW has been accepted by the European Court of Justice in its Gasparini and Wolzenburg decisions. In the Gasparini decision, the Court stated:

Article 4(4) of the framework decision, …, permits the executing judicial authority to refuse to execute a European arrest warrant inter alia where the criminal prosecution of the requested person is time-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that State under its own criminal law. In order for that power to be exercised, a judgment whose basis is that a prosecution is time-barred does not have to exist.74

In the Wolzenburg judgment, the Court went even further and held that when implementing grounds for optional non-execution of an EAW as mandatory or '[w] hen implementing Art. 4 of the Framework Decision…, the Member States have, of necessity, a certain margin of discretion'. 75

The different implementation and interpretation of grounds for non-execution of an EAW have resulted in the utterly unequal treatment of EU citizens depending on which state is executing an EAW. Germany and Croatia exemplify the two extremes. Croatia surrenders citizens in EAW proceedings for the 32 categories of

71 VSRH, Kž-eun 20/14-6, 15 April 2014.

72 Annex to the Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [COM(2007) 407 final], p. 11.

73 See EU Council report on the practical application of the European Arrest Warrant and corresponding surrender procedures between member states, 28 May 2009, 8302/4/09 REV 4, pp. 13– 14.

74 Case C-467/04 Gasparini and others [2006] ECR I-09199, para. 31.

75 Case C-123/08 Wolzenburg [2009] ECR I-09621, para. 61.

offences without verifying double criminality or the statute of limitations. In Germany, the statute of limitations is a ground for mandatory non-execution, and the German Constitutional Court, Federal Court of Justice and appeal courts unitedly agreed that a person shall not be surrendered, notwithstanding whether he/she is a German citizen,76 if prosecution is time-barred according to German law. Certainly the most famous decisions of the German courts not to extradite a person because of the statute of limitations is the refusal to extradite Sören Kama, a member of the Danish SS unit and a Dane who acquired German citizenship in 1956. Denmark had asked for his surrender on the basis of a European arrest warrant for the murder of a number of journalists in Copenhagen in 1943. In 2007, the appeals court in Munich decided that the surrender did not relate to a case of qualified murder (Mord), which is not subject to a statute of limitations, but rather to a case of ordinary manslaughter (Totschlag) and that therefore the prosecution was time-barred.

#### 2.3.3 Fair Trial and In Absentia Judgments

<IP_ADDRESS> The Croatian rapporteur for the questionnaire on the Area of Freedom, Security and Justice for the FIDE XXV Congress in 2012 stated that one of the major threats to defence rights in criminal proceedings arising from EU law was introduced by the 2009 Amendment of the FD EAW. According to the rapporteur, it is absurd to say that this FD has the aim of 'enhancing the procedural rights of persons' when its only aim is 'fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial'. The aim of fostering the principle of mutual recognition to decisions rendered in the absence of the person concerned should be fulfilled without restricting the procedural rights of the defendant.77

The ECtHR considers the right to be present at trial as an element of fair trial in the sense of Art. 6. of the ECHR, as it enables the realisation of other rights protected by Art. 6 (3.c, d and e). In general, trials in absentia are not acceptable, and thus criminal procedure is armed with various coercive instruments in order to secure the defendant's presence. The ECtHR differentiates between a trial in absentia that results from the accused person's free will,78 and one which is the consequence of circumstances outside his/her control.79 A waiver of the right to appear in person at the trial has to be unequivocally established, and this will not be the case where the accused person cannot reasonably foresee the consequences of

76 OLG Karlsruhe Beschluss Az. 1 AK 102/11 vom 25. März 2013.

77 Đurđević et al 2012, p. 251.

78 Poitrimol v. France, 23 November 1993, § 30, Series A no. 277-A; Van Geyseghem v. Belgium [GC], no. 26103/95, § 29, ECHR 1999-I.

79 Goddi v. Italy, 9 April 1984, Series A no. 76; Colozza v. Italy, 12 February 1985, Series A no. 89; Krombach v. France, no. 29731/96, ECHR 2001-II.

his/her absence at the trial.80 In such a case, the accused has to be given the opportunity for a re-trial.81 The ECtHR has also stated that it is of capital importance that the accused appears, and that legislation has to be capable of discouraging unjustified nonappearance.82

The requirements for execution of an EAW issued for the purpose of executing a custodial sentence following an in absentia trial, pursuant to the 2009 Amendment (Art. 4a FD EAW), do not satisfy either the ECHR standards or the Croatian standards. The FD EAW obliges the executing authority to surrender a person even if he/she was neither summoned in person and he/she has no right to a retrial.83 The establishment of requirements for execution of an EAW for a trial in absentia is no longer under the jurisdiction of the executing state,84 but rather of the issuing state, which simply ticks the relevant box in the form.85 It is apparent that the execution of an EAW for the purpose of the surrender of a person convicted in absentia to serve a (final) custodial sentence without the possibility of a retrial puts the quality of justice in the EU at a lower level than standards recognised in ECtHR case law and in all states, including Croatia, where a person tried in absentia has the right to ask for a retrial. The exclusion of the possibility of a retrial undermines the existing fundamental procedural rights and paves the way for possible miscarriages of justice.

A trial in absentia in Croatia is considered to be contrary to the defendant's right to a fair trial and rights of defence, such as the right to be informed of the accusation, to be heard by the judge and to examine witnesses. Therefore, the Croatian Criminal Procedure Act guarantees a person sentenced in absentia the right to a retrial in his/her presence.86 Furthermore, in proceedings for the execution of a foreign judgment according to the rules of mutual legal assistance in criminal matters, the national judge may examine whether the fundamental rights to be heard and to defence were respected.87

80 Harris et al. 2009, p. 142.

81 Ibid.

82 Lala v. the Netherlands, 22 September 1994, Series A no. 297-A; Pelladoah v. the Netherlands, 22 September 1994, Series A no. 297-B; Van Geyseghem v. Belgium [GC], no. 26103/95, ECHR 1999-I.

83 See Morgan 2005, p. 207.

84 Article 5(1) of the FD EAW, which laid down the rule that surrender of a person shall be subject to the issuing State giving 'adequate' assurances that the person will have an opportunity to apply for a retrial of the case, was deleted by the 2009 Amendment.

85 See Open Europe Briefing note: EU strengthens trials in absentia – Framework Decision could lead to miscarriages of justice, 2008. http://archive.openeurope.org.uk/Content/documents/Pdfs/ tia.pdf.

86 Article 497(3) Criminal Procedure Act (Official Gazette No. 152/08, 76/09, 80/11, 91/12 – The decision of the Constitutional Court of the Republic of Croatia, 143/12, 56/13, 145/13).

87 Article 4 of the Act on Mutual Legal Assistance in Criminal Matters (Official Gazette No. 178/04).

Additionally, the European legislator should have been warned by, and learned a lesson from, the Croatian experience twenty years ago with trials in absentia that shows that they may be perilous for fair trial rights. From the early 1990s, the Croatian courts rendered a high number of judgments in absentia for war crimes committed on the territory of Croatia during the war from 1991 to 1995, against Croatian Serbs, most of whom had fled to Serbia. Later, the international community and Croatia recognised that many of these trials violated fair trial rights and the rule of law. Unprofessional and biased criminal proceedings were manifested through unsubstantiated and incorrectly written indictments, the passiveness of defence lawyers, the failure to submit appeals and so on. Croatia has paid a very high price on the international level, and even higher domestically because of the errors that were made in the prosecution of war crimes.88 The revision of these proceedings became one of the benchmarks for EU accession. In order to correct the illegal judgments, Croatia took a series of legislative and concrete measures. Thus, up to the end of 2010, the State Attorney's Office reviewed all the convictions made in absentia from the 1990s (465) and found that 20% (93) of the judgments were groundless, and therefore requested the reopening of the case. Reopening was permitted in all cases and the vast majority of these judgments were repealed (80%). In addition, although the Croatian Criminal Procedure Act prescribed the right to a retrial for any person tried in absentia, at the request of the European Union, in 2008 the right of persons convicted in absentia to apply for a retrial without returning to Croatia was introduced in the Croatian Criminal Procedure Act. Now, however, the EAW procedure requires the Croatian legislator and courts to give up the high procedural rights standards of persons tried in absentia, and requires the surrender of a person tried in absentia without establishing that the person will be entitled to a new trial in the requesting country.

The implementation of Art. 4a of the FD EAW in Croatia shows that the errors in the implementing law will further weaken defence rights and fair trial guarantees in trials in absentia. The Croatian implementing law establishes that it is sufficient for execution of an EAW that the requested person was represented at the trial by a defence lawyer appointed by the person concerned or by the requesting state.89 The additional condition that the person had to be aware of the scheduled trial was mistakenly omitted.

#### 2.3.4 The Right to a Fair Trial – Practical Challenges Regarding a Trial Abroad

<IP_ADDRESS> In Croatia, the state does not provide any kind of assistance to its surrendered citizens beyond standard consular assistance, and there is no public or non-governmental organisation that provides assistance to them.

88 Hrvatin (2010).

89 Article 21(2)(2) of the AJCEU.

<IP_ADDRESS> As Croatia only acceded to the EU on 1 July 2013, there are no final judgments regarding persons who have been surrendered to another EU state.

#### 2.3.5 The Right to Effective Judicial Protection: The Principle of Mutual Recognition in EU Criminal Law and Abolition of the Exequatur in Civil and Commercial Matters

#### <IP_ADDRESS>–<IP_ADDRESS> See Sect. 2.3.2.

<IP_ADDRESS> In the case explained in Sect. 2.3.2, the only role of the Croatian courts was to be actors of loyal co-operation, efficiency and trust. They have expressly assumed this role themselves. By way of examples from court decisions:

To achieve the goals and to respect the principles expressed in EU law, national courts are bound to apply national law in the light of the letter and spirit of EU law. This means that national law must be interpreted in the application as much as possible in the light of the wording and the purpose of relevant framework decisions and directives, in order to achieve the result pursued by such framework decisions and directives;90

Criminal proceedings in another state have priority over criminal proceedings conducted before a Croatian court;91

The European arrest warrant is an instrument of mutual judicial cooperation between the Member States of the European Union that is based on the principles of mutual recognition between Member States and effective cooperation, and contains a legal obligation and moral responsibility of the national courts of the Member State of execution to grant the surrender of the person requested, unless there are the few and expressly prescribed grounds for refusal to surrender.92

<IP_ADDRESS> The opinion of the author is that a proportionality test should be introduced. The author does not recommend the reinstatement of verification of sufficient evidence that an offence has been committed.

## 2.4 The EU Data Retention Directive

2.4.1 The Data Retention Directive has not raised constitutional issues in Croatia. This is probably, at least partly, due to the fact that Croatia acceded to the EU only recently so that the implementation of the Directive in the Croatian legal system took place as part of the process of alignment of the national system with the acquis. Probably for this reason, the Directive was not viewed separately or

90 VSRH, Kž-eun 5/14-4, Kž-eun 14/14-4.

91 County court in Varazdin, Kv-eun 2/14, 9 January 2014.

92 VSRH, Kž-eun 17/14-4.

differently from other, less controversial EU measures which required amendments of national legislation. Discussion started only upon the annulment of the Directive on 8 April 2014. Logically, the central point of the discussion at that point was not the constitutionality of the Directive but the effects of its annulment on Croatian rules which regulate data retention in Croatia. The Ministry of Foreign and European Affairs asked the Department of European Public Law of the Faculty of Law of the University of Zagreb for a legal opinion in the matter, as there was well-founded concern that certain national norms could be contrary to EU law for the same reasons provided by the Court of Justice in its judgment in Joined Cases C-293/12 and C-594/12.93

Further, the Ministry gathered the analyses of different national bodies in charge of data retention. Each body had to analyse national rules within its competence in terms of the compatibility of such rules with the four criteria set by the judgment of the Court of Justice. In its analysis, the Ministry of Maritime Affairs, Transport and Infrastructure identified the provisions of the Law on Electronic Communications which need to be amended, and it is expected that this will be taken into account when the Law, which needs to be aligned with the new Directive 2014/61 of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks, is amended. Also, the amendment of the Criminal Procedure Act from December 2014 narrowed down the cases in which it is possible to conduct checks to determine whether communications have taken place, allowing for such checks only in relation to criminal offences for which the prescribed sentence is more than five years of imprisonment.

The relevant constitutional provisions provide as follows:

Article 34

The home is inviolable.

…

#### Article 35

Respect for and legal protection of each person's private and family life, dignity, reputation shall be guaranteed.

#### Article 36

The freedom and privacy of correspondence and all other forms of communication shall be guaranteed and inviolable. Restrictions necessitated by the protection of national security and the conduct of criminal prosecution may be prescribed solely by law.

#### Article 37

The safety and secrecy of personal data shall be guaranteed for everyone. Without consent from the person concerned, personal data may be collected, processed, and used only under the conditions specified by law.

93 Joined cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others [2014] ECLI:EU:C:2014:238.

Protection of data and oversight of the operations of information systems in the state shall be regulated by law.

The use of personal data contrary to the express purpose of their collection shall be prohibited.

## 2.5 Unpublished or Secret Legislation

2.5.1 Article 90 of the Croatian Constitution provides that laws and other regulations of government bodies as well as ordinances of bodies vested with public authority have to be published in the Official Journal of the Republic of Croatia (Narodne novine) before their entry into force. In judgment U-II-296/2006 of 27 October 2010, the Constitutional Court reviewed the constitutionality of the Decree on the Internal Structure of the Ministry of the Interior, which came into force in 2001, but had not been published in Narodne novine and was marked as a 'state secret'. The Constitutional Court ruled that a decree cannot be a 'state secret' and, therefore, cannot be exempt from the obligation to be published in the official journal. The Constitutional Court stated that any other conduct is contrary to both Art. 90 of the Constitution and to the rule of law and the principle of legal certainty. The Court, therefore, ruled that the Decree had to be published in Narodne novine and ordered the Croatian Government to ensure such publication within 90 days of the publication of the Court's decision.

# 2.6 Rights and General Principles of Law in the Context of Market Regulation: Property Rights, Legal Certainty, Non-retroactivity and Proportionality

2.6.1 No such issues have yet arisen in Croatia in relation to EU measures, which is primarily due to Croatia's relatively short EU membership.

# 2.7 The ESM Treaty, Austerity Programmes and the Democratic, Rule-of-Law-Based State

2.7.1 Croatia has not signed the Treaty Establishing the European Stability Mechanism (ESM Treaty) due to the fact that Croatia is not a euro area state. It has also not signed the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (Fiscal Compact) due to the fact that the Fiscal Compact was signed before Croatian accession to the EU. For this reason, the Croatian position vis-à-vis the Fiscal Compact is unique in comparison to all other EU Member States and remains open. The Croatian Government has, so far, not given any official position in respect of possible signature of the Fiscal Compact in the future.

2.7.2 There has not been any public discussion about the constitutionality of other proposed measures. This is (probably) due to the fact that Croatia has decided not to enter the banking union prior to adopting the euro. Therefore, there is no additional financial exposure for Croatian citizens above other costs associated with EU membership.

2.7.3 Croatia has not been subject to any EU bailout or subsequent related austerity procedures which would initiate a strong negative reaction in the state. However, as all other EU Member States, Croatia is subject to economic governance procedures, which require the adoption of policies and measures recommended by the Council. Excessive macroeconomic imbalances identified by the Commission led to strong policy recommendations for Croatia. The Excessive Deficit Procedure, initiated on 28 January 2014, obliges Croatia to correct its excessive deficit by the end 2016.94 The EU recommendations are mostly in line with domestic policy priorities – fiscal consolidation and return to a path of sustainable growth. Croatia is adhering to these recommendations. In this context, the Croatian Government has not (yet) imposed aggressive austerity measures which would disproportionately hurt Croatian citizens. So far, only modest measures have been taken, the most visible being the adoption of two laws of temporary character: the Law on the Denial of Payment of Certain Material Rights to Employees in the Public Service,95 in force as of 31 March 2015, and the Law on the Denial of the Right to Increase Salaries Based on Seniority,96 in force as of 1 April 2014. The former act denies public servants the right to a 2015 Christmas bonus and the regress for using annual leave in 2015, while the latter denies the right to increase the coefficient for the complexity of work in the public service based on the number of years of service. The latter act was subjected to a constitutional review procedure initiated by nine trade unions and a number of Croatian citizens. In its judgment, dated 30 March 2015, the Constitutional Court rejected the proposal and declared that denial of the right to increase salaries based on seniority is in accordance with the Croatian Constitution.97 The Court based its judgment on the argument that 'there are imperative reasons of public interest which justify its application (correction of excessive deficit in accordance with the Council recommendations)'. 98

94 The Excessive Deficit Procedure was initiated at the Economic and Financial Affairs Council meeting on 28 January 2014, based on Council decision 17908/13, dated 21 January 2014, establishing the existence of an excessive deficit in Croatia, and Council recommendation 17904/13 dated 21 January 2014.

95 Official Gazette of the Republic of Croatia 36/15.

96 Official Gazette of the Republic of Croatia 41/14, 157/14 and 36/15.

97 Judgment U-I-1625/2014 and others, U-I-241/2015, U-I-383/2015, U-II-1343/2015, 30 March 2015.

98 Ibid., para. 66.

Nevertheless, the Constitutional Court warned that potential further extension of the application of the law in question could turn the measure into a permanent one, which would raise the question of the functioning of the rule of law and the principle of legal certainty and could call the citizens' confidence in pubic authority into question.99 If further austerity measures are introduced, further constitutional review procedures can be expected.

# 2.8 Judicial Review of EU Measures: Access to Justice and the Standard of Review

2.8.1 Due to its relatively recent EU membership, there have so far only been a few preliminary references from Croatia, all dealing with the interpretation of EU law. Two of them concern public notaries in the context of judicial cooperation in civil matters,100 two deal with EU rules on consumer credit,101 and one with the price of water consumption in the context of the EU water policy.102

There are also four actions for damages, dealing with similar issues, which are currently pending before the General Court,103 as well as an action for annulment initiated by the ferry port Split asking for the annulment of a Commission decision104 stating that the measure subject to the complaint does not constitute state aid within the meaning of Art. 107(1) TFEU.105

2.8.2 There has been no public debate on the standard of review of the EU Courts in Croatia.

2.8.3 The Croatian Constitutional Court has in certain instances taken a rather vigorous approach to the review of constitutionality of Croatian legislation. In the most recent controversial case the Constitutional Court suspended the new Family Law.106

99 Ibid., para. 67.