Case nº U-I/722/2009 of April 06, 2011. Proceedings for reviewing conformity of a law with the Constitution

Resolution Date:April 06, 2011
Issuing Organization:Constitutional Court
SUMMARY

The Free Legal Aid Act

 
FREE EXCERPT

The Constitutional Court of the Republic of Croatia, composed of Jasna Omejec, President of the Court, and Judges Mato Arlović, Marko Babić, Snježana Bagić, Slavica Banić, Mario Jelušić, Davor Krapac, Ivan Matija, Antun Palarić, Aldo Radolović, Duška Šarin and Miroslav Šeparović, deciding on the proposal to institute proceedings to review the conformity of a law with the Constitution of the Republic of Croatia (Narodne novine, nos. 56/90, 135/97, 113/00, 28/01 and 76/10), at its session held on 6 April 2011, rendered the following

D E C I S I O N

  1. Proceedings are instituted to review the conformity of a law with the Constitution and Article 5 para. 2, Article 8, Article 10 para. 2, Article 37 and Article 53 para. 2 of the Free Legal Aid Act (Narodne novine, no. 62/08) are hereby repealed.

  2. Article 5 para. 2, Article 8, Article 10 para. 2, Article 37 and Article 53 para. 2 of the Free Legal Aid Act (Narodne novine, no. 62/08) shall go out of force on 15 July 2011.

  3. This decision shall be published in Narodne novine.

    and

    R U L I N G

  4. The proposal of the Croatian Bar Association to institute proceedings to review the conformity with the Constitution of the Free Legal Aid Act as a whole, and of Articles 1, 9, 11 para. 4, 29, 40, 41, 53, 54, 55, 56, 57, 58, 59, 60 and 64 of the Free Legal Aid Act (Narodne novine, no. 62/08), is hereby not accepted.

  5. This ruling shall be published in Narodne novine.

    Statement of reasons

  6. PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT

    1. - The Croatian Parliament enacted the Free Legal Aid Act (hereinafter: FLAA) at its sitting of 16 May 2008. The FLAA was promulgated by the President of the Republic of Croatia in his decision of 23 May 2008 and published in the Official Gazette of the Republic of Croatia Narodne novine, no. 62 of 30 May 2008.

    2. - The Croatian Bar Association from Zagreb, represented by its president Leo Andreis, submitted the proposal for the review of the conformity with the Constitution of the FLAA. The proponent disputes the constitutionality of the FLAA in its entirety, but after analysing the proponent’s allegations the Constitutional Court found that the proposal only challenges some provisions of the FLAA (these are Articles 1, 5 para. 2, 8, 9, 10 para. 2, 11 para. 4, 29, 37, 40, 41, 53, 54, 55, 56, 57, 58, 59, 60 and 64 FLAA), so the statement of reasons gives the corresponding analysis and review of these allegations.

    3. - On the grounds of Article 25 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), the Court requested the opinion of the Ministry of Justice of the Republic of Croatia (hereinafter: the Ministry of Justice), which also delivered to the Constitutional Court the Report on the Implementation of the Free Legal Aid Act in 2009. Furthermore, the Court requested and received the professional opinion of Alan Uzelac, LL D, scientific advisor of the Constitutional Court.

      In its work on the case the Court used the articles of Jozo Čizmić: “O pružanju besplatne pravne pomoći” (On Providing Free Legal Aid, Zb. Prav. fak. Rij. (1991) v. 31, no. 1, 389-444 (2010), and Alan Uzelac: “Pristup pravosuđu - analiza stanja u Republici Hrvatskoj” (An Approach to the Administration of Justice – Analysis of Conditions in the Republic of Croatia) (http://alanuzelac.from.hr/Pdf/access.pdf), and the Report of the European Commission for the Efficiency of Justice (CEPEJ) from 2004 (see European judicial systems, ed. 2006 [2004 data]; at: www.coe.int/t/dghl/cooperation/cepej/evaluation/2006/CEPEJ).

    4. - 1. During the consideration of the case the Court also examined the relevant case-law of the European Court of Human Rights (hereinafter: the European Court) in relation to the Republic of Croatia (http://www.echr.coe.int/HUDOC/; http://www.vlada.hr/Strasbourg/), of the Federal Constitutional Court of the Federal Republic of Germany (hereinafter: German Federal Constitutional Court) and of the Supreme Court of the USA, which are referred to in the relevant parts of the reasons of the Decision and Ruling.

  7. THE REASONS FOR THE DECISION

    1) The principles of legal norm quality in the light of the rule of law

    1. - The Constitutional Court examined the constitutionality of the provisions of the FLAA given in point I of the Decision in the light of Articles 3 and 14 of the Constitution, which read as follows:

      “Article 3… equal rights, … social justice, … the rule of law, … are the highest values of the constitutional order of the Republic of Croatia and the ground for interpretation of the Constitution.”

      “Article 14 Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.

      All shall be equal before the law.”

    2. - When reviewing the above provisions of the FLAA, the Constitutional Court started from its stand taken in Decision no.: U-I-659/1994 etc. of 11 October 2000 (Narodne novine, no. 107/00) that the requirements of legal certainty and the rule of law in Article 3 of the Constitution demand that the legal norm should be accessible to and predictable for those it applies to, i.e. such that they can know their real and specific rights and obligations so that they can act accordingly. It expressed this view in reliance on the view of the European Court, first formulated in the case of Sunday Times (No.1) v. the United Kingdom (judgment, 26 April 1979, application no. 6538/74, § 49), which says:

      “19.5. ... In the Court’s opinion, the following are two of the requirements that flow from the expression "prescribed by law". Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”

    3. - 1. The Constitutional Court deems that the addressees of a legal norm can certainly not know their rights and obligations really and specifically and foresee the consequences of their conduct if the legal norm is not sufficiently definite and precise. The requirement for a definite and precise legal norm is “one of the basic elements of the principle of the rule of law” (judgment of the European Court in the case of Beian v. Rumania, 6 December 2007, application no. 30658/05, § 39: “... constitue l'un des éléments fondamentaux de l'Etat de droit”) and is crucial for the creation and preservation of the legitimacy of the legal order. It ensures that the democratically legitimate legislator can independently elaborate the basic rights and freedoms in laws, that the executive and administrative powers can draw on clear statutory and regulatory standards for their decisions and that the judicial powers and courts can control the legality of the legal order (judgment of the German Federal Constitutional Court 1 BvR 370/07 of 27 February 2008, § 209). When this requirement is not met, indefinite and imprecise laws delegate some of the powers of legislation to subjective administrative and judicial decision-making, which is impermissible in constitutional law.

      The Constitutional Court recalls that the requirements for the definiteness and precision of the legal norm are more than a semantic requirement to forestall vagueness in communication between the maker of the norm and the person it applies to. These requirements are the basic standards for normative regulation in all the cases in which there could be more than one way of finding and interpreting the relevant law.

      The Constitutional Court notes that the requirements for the definiteness and precision of the legal norm must be considered part of the principle of the rule of law in all the branches of law, because neglecting them would endanger the other components of the principle of legal certainty as part of the principle of the rule of law. This especially refers to the requirement for the uniform application of the law and respect for the effects of the legally effective judgments and other decisions of the bodies of central government and public authority.

      It is especially important to comply with these requirements in criminal law for which – because of the intensity of the restriction of human rights and fundamental freedoms – the principle of legality (Article 31 para. 1 of the Constitution) contains as many as four separate requirements (the written legislative norm, lex scripta; the prohibition of analogy, lex stricta; precise statutory descriptions of criminal offences, lex certa, and the prohibition of retroactive effect, lex praevia).

    4. - 2. The requirement for the definiteness and precision of the legal norm has both a positive and a negative meaning. In the positive meaning, the definiteness and precision of the legal norm means that its wording must allow citizens to know their real and specific rights and obligations so that they can behave accordingly. If two or more legal norms regulate their behaviour, the bodies that bring them must ensure that they are clear and predictable both in content and in their effect in interrelationship (conclusion of the German Federal Constitutional Court 1 BvF 3/92 of 3 March 2004, § 107).

      The positive meaning of the requirement for the definiteness and precision of the legal norm, however, is not fulfilled if citizens, as conscientious and reasonable persons, speculate about its meaning and content, and those who apply it often differ in its interpretation and application to specific cases. A contentious interpretation of a legal...

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