Case nº U-I/763/2009 of March 30, 2011. Proceedings for reviewing conformity of a law with the Constitution

Resolution Date:March 30, 2011
Issuing Organization:Constitutional Court
SUMMARY

The Agricultural Land Act

 
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The Constitutional Court of the Republic of Croatia, composed of Jasna Omejec, President of the Court, and Judges Mato Arlović, Marko Babić, Snježana Bagić, Slavica Banić, Mario Jelušić, Davor Krapac, Ivan Matija, Antun Palarić, Aldo Radolović, Duška Šarin and Miroslav Šeparović, in proceedings instituted to review the conformity of an act with the Constitution, at its session held on 30 March 2011, rendered the followingDECISIONI. Articles 15 and 16, Article 25 paras. 1, 2 and 3 and Articles 81, 82, 83, 84 and 85 of the Agricultural Land Act (Narodne novine, nos. 152/08, 25/09, 153/09 and 21/10) have hereby been repealed.II. The proceedings instituted by the ruling of the Constitutional Court no.: U-I-763/2009 etc. of 7 July 2010 (Narodne novine, no. 90/10) have hereby been ended with reference to Article 25 paras. 4 and 5 of the Agricultural Land Act (Narodne novine, nos. 152/08, 25/09, 153/09 and 21/10).III. One day after the publication of this decision in Narodne novine the ruling of the Constitutional Court of the Republic of Croatia no.: U-I-763/2009 etc. of 7 July 2010 (Narodne novine, no. 90/10) shall go out of force.IV. This decision shall be published in Narodne novine.Statement of reasonsI. PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT1.- The following submitted proposals for the Constitutional Court to institute proceedings to review the conformity with the Constitution of Article 15, Article 16, Article 25 paras. 1, 2, 3, 4 and 5 and Articles 81, 82, 83, 84 and 85 of the Agricultural Land Act (Official Gazette of the Republic of Croatia, Narodne novine, nos. 152/08, 25/09 – Article 17 of the Foundation of the Croatian Agriculture, Food and Village Centre Act, 153/09 – Article 29 of the Public Roads (Amendment) Act, 21/10; hereinafter: ALA): Serb Democratic Forum (Hereinafter: SDF) from Zagreb, represented by its president Veljko Džakula (case no.: U-I-763/2009), Association for Promoting and Protecting the Constitutionally Guaranteed Rights of Citizens from Kaštel Novi, represented by its president Bogdan Pensa (case no.: U-I-1895/2009), and Antun Laslo, Josip Ostojčić, Emerik Huđik, Ivan Pavlek, Tibor Pap, Željko Markotić, Josip Hnatek, Martin Užarević, Stipo Djelatović, Marko Lučić, Stanko Zdravčević, Ljubica Brač, Stanko Todorović and Anđelko Balaban, who chose Antun Laslo as their common representative (case no.: U-I-1047/2010), Ivan Bižanović from Otočac (case no.: U-I-1376/2010), and Dinko Blažević from Zagreb (case no.: U-I-1814/2010).2.- After considering the proposals, the Constitutional Court rendered the ruling no.: U-I-763/2009 etc. of 7 July 2010 (Narodne novine, no. 90/10) in which it instituted proceedings to review the conformity with the Constitution of Article 15 paras. 1 and 2, Article 16, Article 25 paras. 1, 2, 3, 4 and 5 and Articles 81, 82, 83, 84 and 85 of the ALA.On the grounds of Article 45 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Narodne novine, nos. 99/99, 29/02 and 49/02 – consolidated wording, hereinafter: the Constitutional Act), in the same ruling the Constitutional Court temporarily suspended the execution of all the individual decisions made or the actions being conducted by the Agricultural Land Agency and other competent bodies on the grounds of the impugned articles of the ALA and the Regulation on the Foundation of the Agricultural Land Agency (Narodne novine, no. 36/09) until the Constitutional Court makes its final decision about the conformity with the Constitution of the impugned provisions of the ALA.In the same ruling the Constitutional Court determined, on the grounds of Article 31 para. 5 of the Constitutional Act, that privately-owned agricultural land may be disposed of in accordance with the general provisions regulating the disposition of real property until the final decision is made.2.- 1. The Constitutional Court notes that in the pronouncement of ruling no.: U-I-763/2009 etc. of 7 July 2010 it instituted proceedings to review the conformity with the Constitution of only the two first paragraphs of Article 15 ALA.In the proceedings following ruling no.: U-I-763/2009 etc. of 7 July 2010, the Constitutional Court decided also to examine, in these proceedings of constitutional review, the objections of the proponent Dinko Blažević (case no.: U-I-1814/2010) that refer to Articles 15 and 16, and Articles 81 to 84 ALA. The Constitutional Court singled out the part of this proponent’s proposal that refers to Article 1, Articles 3 and 4, Article 5 paras. 2, 4, 5 and 6, Article 6 para. 4, Article 7, Articles 12 para. 2, Article 13, Articles 77 to 80, Articles 86 to 89 and Articles 91 and 92 ALA into a separate case of constitutional review that is being conducted under number: U-I-1723/2011.For this reason point I of the pronouncement of this decision refers to Article 15 ALA in its entirety.3.- On the grounds of Article 25 of the Constitutional Act the Court requested and received the opinion of the Ministry of Agriculture, Fishing and Rural Development of the Republic of Croatia and the professional opinion of teachers at the Administrative Law Department of the Law Faculty of Zagreb University.4.- In these proceedings of constitutional review the Constitutional Court made use of the relevant case-law of the European Court of Human Rights in Strasbourg (hereinafter: the European Court), which is cited in the appropriate places in the statement of reasons of this decision.Starting from the comparability in substantive law between Article 48 of the Constitution and Article 14 of the Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland vom 23. Mai 1949, BGBl. S. 1, zuletzt geändert durch das Gesetz vom 21. Juli 2010, BGBl. I S. 944) of legal principles concerning the constitutional guarantee of the right of ownership (see points 15 to 17 of the statement of reasons of this decision), the Constitutional Court especially referred to the relevant case-law of the German Federal Constitutional Court which has universal significance in clarifying issues connected with ownership in a social state, i.e. in clarifying the issue of the social function of ownership. This especially applies to the following judgments and rulings of the German Federal Constitutional Court: BVerfGE 38, 348 (Zweckentfremdung von Wohnraum), ruling of the Second Senate of 4 February 1975 – 2 BvL 5/74; BVerfGE 14, 263 (Feldmühle-Urteil), judgment of the First Senate of 7 August 1962 – 1 BvL 16/60; BVerfGE 21, 73 (Grundstückverkehrsgesetz), ruling of the First Senate of 12 January 1967 – 1 BvR 169/63; BVerfGE 31, 229 (Schulbuchprivileg), ruling of the First Senate of 7 July 1971 – 1 BvR 765/66; BVerfGE 46, 325 (Zwangsversteigerung II), ruling of the first Senate of 7 December 1977 – 1 BvR 734/77; BVerfGE 52, 1 (Kleingarten), ruling of the first Senate of 12 June 1979 – 1 BvL 19/76; BVerfGE 58, 300 (Nassauskiesung), ruling of the First Senate of 15 July 1981 – 1 BvL 77/78; BVerfGE 68, 361 (Eigenbedarf I), ruling of the First Senate of 8 January 1985 – 1 BvR 792, 501/83; BVerfGE 100, 226 (Denkmalschutz), ruling of the first Senate of 2 March 1999 – 1 BvL 7/91.II. THE ENACTMENT OF THE AGRICULTURAL LAND ACT5.- The Government of the Republic of Croatia submitted the Proposal of the Agricultural Land Act, P.Z. no. 124 (hereinafter: the ALA Bill) to the Speaker of the Croatian Parliament on 30 June 2008.The Government referred to Article 2 para. 4 and Article 52 of the Constitution as the constitutional foundation for passing the ALA.In point II of the ALA Bill (“Situation Assessment”) the Government stated, among other things, the following reasons for proposing the ALA:“Agricultural land is an asset of general interest, agricultural areas are limited and cannot be increased, moreover, we are decreasing them by our activities. The area of agricultural land in the Republic of Croatia is 2,695,037 ha, of which the State owns 890,214 ha or 33%, and 1,804,823 ha or 67% is privately owned.These data have been taken from the Statistical Annual of 2005.(...) The previous Act mostly referred to the disposition of state-owned agricultural land.(...)Privately-owned agricultural land, transactions with and disposition of it have so far not been specially regulated and it were covered by general regulations on ownership.This has led to a steady decrease in the size of our production plots and decrease in area per farm.Another special problem is not using agricultural land for agricultural production.”6.- Discussion on the ALA Bill (first reading) ended on 14 July 2008. On 15 July 2008, at the 5th sitting, the ALA Bill was accepted and all the objections, proposals and opinions were sent to the Government to prepare the Final ALA Bill (121 votes “for”, 4 “against”, 6 “withheld”).The discussion on the Final ALA Bill (second reading) was concluded on 9 December 2008.The ALA was passed at the 7th sitting of the Croatian Parliament on 15 December 2008 (72 votes “for”, 3 “against”, 2 “withheld”).The ALA was published in the Official Gazette Narodne novine, no. 152 of 24 December 2008. It entered into force on 1 January 2009, except Articles 81 to 85 and Article 92, which entered into force on 1 January 2010 (Article 110 ALA).7.- The proponents dispute the conformity with the Constitution of Articles 15 and 16, Article 25 paras. 1 to 5 and Articles 81, 82, 83, 84 and 85 of the ALA.Because of the different content of the impugned provisions of the ALA, and therefore also the different objections of the proponents, the Constitutional Court has explained the reasons that guided it in the review of the conformity with the Constitution of the impugned legal provisions in the headings that deal with particular impugned articles or groups of contextually similar articles of the ALA.III. ARTICLES 15 and 16 of the AGRICULTURAL LAND ACT8.- The impugned Articles 15 and 16 ALA read as follows:“Article 15Privately-owned agricultural land...

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