Review article
Position of the Constitutional Court of the Republic of Croatia from the Point of View of Separation of Powers and the Constitutional Guarantee of its Independence
Duška Šarin
; Constitutional Court of the Republic of Croatia, Zagreb, Croatia
Abstract
Along with legislative, executive and judicial government, the Constitution had established the Constitutional court of the Republic of Croatia (hereinafter: Constitutional court) as kind of ‘fourth state government’ or ‘inter-government’. The real position of the Constitutional court is seen in the authorities given to it by the Constitution, i.e. in legal impacts of constitutional-judicial decisions that directly act in areas of legislative, executive, and judicial government.
Constitutional autonomy of the Constitutional court is shown through the so called constitutional guarantees of the independence of the Constitutional court, that are expression and consequence of its position as the ‘fourth state government’ or ‘inter-government’ in the Republic of Croatia. Harutyunyan and Mavčič state the following guarantees of the independence of the constitutional court: 1. financing (budget) of constitutional courts as basis of their independence, 2. payment of fees in constitutional-judicial proceedings as source of financing of the constitutional court, 3. authorities of the constitutional courts as proof of their independence, 4. immunity, incompatibility, material independence and protocol position of constitutional judges, 5. appointment / choosing of constitutional judges, 6. public control / public form of actions of constitutional courts, especially: a) public discussions, b) publication of decisions of the constitutional courts in official gazettes and legal magazines, c) flow of information about constitutional-judicial decisions through individual computer information systems, and 7. constitutional autonomy of the internal organisation of the constitutional courts.
By comparing the general guarantees that are valid in most European countries with those valid in Croatian legal system we come to the conclusion that there still exist problems in that area that demand better or more advanced solution. It seems that three problems demand immediate solution.
In the area of financing of the Constitutional court, as basis of its independence, changes are necessary in two directions: first, the Constitutional court should get the authority to propose its own annual budget to the Croatian Parliament without the mediation of the Government of the Republic of Croatia (which does not necessarily mean its separation from the total state budget), and, secondly, despite the proclaimed independence in allocating its own means from the budget, as guaranteed by article 2, paragraph 2 of the Constitutional Act on the Constitutional court of the Republic of Croatia, it is necessary to change the administrative practice in that area, since that constitutional guarantee is not implemented in practice, or is not implemented in full measure.
Furthermore, it seems that the guarantees of independence of the constitutional court connected with the material independence of the constitutional judges are regulated the least in the legal system of the Republic of Croatia. They are not the subject of regulations neither of the Constitution nor the Constitutional Act. There is therefore the need for a separate regulation of the material position of constitutional judges in the Constitutional Act, separated from those of state officials in legislative, executive and judicial government.
Finally, in difference to the structure of the Croatian Constitutional court that satisfies the European standards, the current model of choosing the judges for the Constitutional court is being criticised in the part that relates to the process of proposing the candidates for the duty.
Keywords
principle of separation of powers; Constitutional court; guarantees of independence of Constitutional court and Constitutional judges
Hrčak ID:
100043
URI
Publication date:
28.12.2012.
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