Case nº U-I/2414/2011 of November 07, 2012. Proceedings for reviewing conformity of a law with the Constitution
|Resolution Date:||November 07, 2012|
|Issuing Organization:||Constitutional Court|
Act on the Prevention of Conflict of Interest
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 (Official Gazette nos. 56/90, 135/97, 113/00, 28/01 and 76/10), at its session held on 7 November 2012, rendered the followingD E C I S I O NI. Proceedings are instituted to review the conformity with the Constitution of the Act on the Prevention of Conflict of Interest (Official Gazette nos. 26/11 and 12/12), and the following provisions are hereby repealed:- Article 8.13 in the part reading: "as well as banking institutions and business entities", and 8.14;- Article 26.3;- Article 27 in the part reading: "fails to justify the mismatch or disproportion";- Article 30.1.2 in the part reading: "on procedures before the Commission,";- Article 30.1.3 in the part reading: "and in the manner prescribed by the Ordinance that regulates the procedure of checking data from the declarations of assets of officials, adopted pursuant to this Act";- Article 39.5, first sentence, in the part reading: "establish the facts through its own actions or", and the second sentence in the part reading: ", banks and other financial institutions";- Article 45.3 in the part reading: "period and";- Article 46;- Article 47;- Article 53.1 and 2;- Article 55.2 in its entirety and 55.4 in the part reading: "and the declaration referred to in paragraph 2 of this Article".II. Pursuant to Article 31.4 and 5 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Official Gazette nos. 99/99, 29/02 and 49/02 - consolidated text), the Constitutional Court holds that the election of the President and members of the Commission for Conflict of Interest must be conducted at the latest by 15 February 2013.III. This decision shall be published in the Official Gazette.andR U L I N GI. The proposal to institute proceedings to review the conformity with the Constitution of Article 8.10 and 8.12, Article 42.1.2 and 42.3 in the part referring to paragraph 1 point 2, and Article 44 of the Act on the Prevention of the Conflict of Interest (Official Gazette nos. 26/11 and 12/12) is hereby not granted.The proposal to institute proceedings to review the conformity with the Constitution of the entire Act on the Prevention of Conflict of Interest (Official Gazette nos. 26/11 and 12/12) is hereby not granted in its entirety.II. This ruling shall be published in the Official Gazette.Statement of reasonsPROCEEDINGS BEFORE THE CONSTITUTIONAL COURT1.- The Croatian Parliament enacted the Act on the Prevention of Conflict of Interest at its session on 11 February 2011. It was published in the Official Gazette no. 26 of 2 March 2011 (hereinafter: APCI).The APCI was amended by the Act on Amendments to the Act on the Prevention of Conflict of Interest, which the Croatian Parliament enacted at its session on 25 January 2012. It was published in the Official Gazette no. 12 of 26 January 2012.2.- Proposals for the review of the conformity of the APCI with the Constitution were submitted by:- Josip Leko from Zagreb, case no: U-I-2414/2011 (hereinafter: first proponent),- Gordana Grbić from Zagreb, case no: U-I-3890/2011 (hereinafter: second proponent),- Daniel Majer from Osijek, case no: U-I-4720/2012 (hereinafter: third proponent).The first and the second proponents, pursuant to Article 45 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Official Gazette nos. 99/99, 29/02 and 49/02 - consolidated text; hereinafter: Constitutional Act), until the end of proceedings before the Constitutional Court, requested a temporary suspension of the execution of all individual decisions and actions undertaken by the Commission for Conflict of Interest (hereinafter: the Commission) pursuant to the APCI. The request of the first proponent to apply Article 45 of the Constitutional Act also arose from the fact that at the time of submitting the proposal he had been a member of the Croatian Parliament and a member of the Commission for Conflict of Interest.2.- 1. Based on the proponents' objections, the Constitutional Court, pursuant to Article 38.2 of the Constitutional Act, instituted proceedings for the review of the conformity of individual provisions of the APCI sua sponte (see point 6.1 of the statement of reasons of the decision).3.- Pursuant to Article 25 of the Constitutional Act, observations on the proponents' proposals were requested from the Government of the Republic of Croatia (hereinafter: the Government). Up to the rendering of this decision, the Constitutional Court has not received such observations.4.- Legal opinions were requested from and were submitted to the Constitutional Court by Prof. Arsen Bačić, DSc, professor at the Department for Constitutional Law of the Faculty of Law, University of Split, Prof. Sanja Barić, DSc, professor at the Department for Constitutional Law of the Faculty of Law, University of Rijeka, Prof. Branko Smerdel, Head of the Department for Constitutional Law at the Faculty of Law, University of Zagreb.4.- 1. Legal opinions were also requested from Prof. Zlata Đurđević, DSc (Faculty of Law, University of Zagreb), Prof. Josip Kregar, DSc (Faculty of Law, University of Zagreb) and Prof. Zvonimir Lauc, DSc (Faculty of Law, Josip Juraj Strossmayer University in Osijek). Up to the rendering of this decision, the Constitutional Court has not received these opinions.4.- 2. An opinion has also been requested from Transparency International Croatia. Up to the rendering of this decision, the Constitutional Court has not received such an opinion either.PROCEDURE OF THE ADOPTION OF THE APCI5.- The Proposal of the Act on the Prevention of Conflict of Interest (P.Z. no. 703) was submitted to the Speaker of the Croatian Parliament by the Government of the Republic of Croatia through act class: 023-03/11-01/03, reg. number: 5030109-11-1 of 27 January 2011 (hereinafter: Proposal of the APCI) pursuant to Article 85 of the Constitution (this Article is marked as Article 84 in the consolidated text of the Constitution, Official Gazette no. 85/10) and Article 129 of the Standing Orders of the Croatian Parliament (Official Gazette nos. 71/00, 129/00, 117/01, 6/02 - consolidated text, 41/02, 91/03, 58/04, 69/07, 39/08 and 86/08).5.- 1. In point II of the Proposal of the APCI ("Situation assessment and basic issues which have to be regulated by the Act, and the consequences that arise from the adoption of the Act"), the Government highlighted the following reasons for proposing the APCI:"The Act on the Prevention of Conflict of Interest in the Exercise of Public Office was adopted in 2003, and since then the Croatian Parliament has adopted six amendments to this Act.In 2005, the Republic of Croatia ratified the UN Convention against Corruption whose purpose was to promote and strengthen measures to prevent and combat corruption more efficiently and effectively, as well as to promote integrity, accountability and the proper management of public affairs and state property. In conformity with the Convention, each State Party must, in accordance with the fundamental principles of its domestic law,endeavour to adopt, maintain and strengthen policies that promote transparency and prevent the occurrence of conflict of interest. Each State Party must endeavour, as appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their office as public officials.On 19 June 2008, the Croatian Parliament adopted an Anti-corruption Strategy... and included the prevention of conflict of interest in the exercise of public office among the priority areas in combating corruption.As part of the process of accession to the European Union, the Republic of Croatia must align its anti-corruption legal and institutional framework with the standards of EU Members States. In this context, the Proposal of the Act allows for an improvement of the system in force by strengthening the independence of the Commission of Conflict of Interest or, more precisely, by regulating a number of instruments for preventing conflict of interest, and introducing a system for controlling and checking the declaration of assets of public officials, including strict sanctions in cases on non-compliance.The main task of public institutions is to serve the public interest. The public expects public officials to exercise their office with integrity, honesty and impartiality. Although conflict of interest does not represent corruption in itself, the conflict between the private interests and duties of officials in public administration, if inappropriately resolved, may result in corruption. Similarly, inadequately resolved conflicts of interest among officials in public administration cause the weakening of public trust in public institutions.The aim of a policy regulating conflict of interest does not have to prohibit any private interest public officials might have, even though such an approach would be understandable. The immediate aim should be to focus on maintaining the integrity of the official and the administration in general, as well as of the decisions adopted, acknowledging in this way that an unresolved conflict of interest may result in an abuse of position. Consequently, a system for the early identification of risk and for the resolution of conflict of interest should be put in place, the integrity of officials must be strengthened, an...
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