STRESSING THE RIGHTS GUARANTEED BY THE CONSTITUTION AND CONVENTION IN THE PROCEEDINGS BEFORE ORDINARY COURTS

Abstract

The ECtHR’s position is that the subsidiarity principle is one of the
fundamental principles upon which the supervisory system of the Convention is based. This specifically means that the mechanism for the protection of human rights and fundamental freedoms established by the Convention is subsidiary to national human rights protection systems. This paper focuses on the period when all parties in
court proceedings had to understand and accept the importance of the application of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as of the Constitution of the Republic of Croatia in proceedings before ordinary courts. The importance of these two documents is expressed in the decisions of the Constitutional Court of the Republic of Croatia and those of the European Court of Human Rights, which, with their role as interpreters of the Convention and of the Constitution respectively, clearly defined the contents of individual constitutional and Convention rights, freedoms, guarantees and principles, and created guidance for their better protection. The advantages of stressing violations of Convention and constitutional rights, even during proceedings before ordinary courts, are indisputable,
and this paper also stresses their obligatory nature, in situations where parties strive with their requests to appear before courts of these instances. The authors, who have been dealing with constitutional and Convention law throughout their careers, have followed the development of the case law of these courts, especially of the Constitutional Court, and thus noticed the development of stricter criteria of both courts when deciding on the merits in individual cases. In this paper, the authors focus on Constitutional Court and ECtHR decisions where the principle of subsidiarity is more prominent. They clarify the importance of a constitutional complaint, as well as the status of constitutional adjudication compared to ordinary court proceedings, and the shift of the Constitutional Court to constitutional argumentation in place of the argumentation of an ordinary court, which prevailed in the earlier jurisprudence of the Constitutional Court. In this context, it is possible to still perceive the insufficient “usage” of Constitutional Court and Convention arguments, as well as the incorrect
argumentation of the constitutional complaint and of references to the European Court with regular appellate reasoning.