Case nº U-I/5612/2011 of January 23, 2013. Proceedings for reviewing conformity of a law with the Constitution

Resolution Date:January 23, 2013
Issuing Organization:Constitutional Court
SUMMARY

Public Bailiffs 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, 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 23 January 2013, rendered the following:

R U L I N G

I. The proposals to institute proceedings to review the conformity with the Constitution of the Public Bailiffs Act (Official Gazette nos. 139/10, 150/11 and 70/12) and the Act on Amendments to the Public Bailiffs Act (Official Gazette no. 150/11) are hereby dismissed.

II. In the part in which the Act on Amendments to the Public Bailiffs Act (Official Gazette no. 150/11 and 70/12) and the Act Repealing the Public Bailiffs Act (Official Gazette no. 112/12) have a direct and immediate effect on the legal status of persons who the Ministry of Justice of the Republic of Croatia appointed public bailiffs pursuant to the Public Bailiffs Act (Official Gazette no. 139/10), the Constitutional Court of the Republic of Croatia, 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), establishes:

- each of the total of seventy-one (71) persons who the Minister of Justice of the Republic of Croatia appointed public bailiffs pursuant to the Public Bailiffs Act (Official Gazette no. 139/10), the personal names of whom are listed in point 17 of the statement of reasons of this ruling, have the right to redress in the lump sum net amount of HRK 18,000.00 for the reasons set out in point 22 of the statement of reasons of this ruling.

- the redress from point 1 of this item of the operative part will be paid from the state budget within three (3) months from the day a request is filed with the Ministry of Justice of the Republic of Croatia for payment.

III. The redress from point II of this operative part does not affect the general right of each person appointed public bailiff, who has been affected by the Act on Amendments to the Public Bailiff Act (Official Gazette nos. 150/11 and 70/12), and the Act Repealing the Public Bailiffs Act (Official Gazette, no. 112/12), to seek in court proceedings damages incurred pursuant to the general rules of the law on obligations. The redress shall not be included in the calculation of that possible court indemnity.

IV. This ruling shall be published in the Official Gazette.

STATEMENT OF REASONS

1.- The proposal to institute proceedings to review the constitutionality of the Public Bailiffs Act (Official Gazette, nos. 139/10, 150/11 and 70/12, hereinafter: the PBA/10) was filed by the association VERONIKA VERE (for the protection of human rights, promotion of the rule of law and protection of victims of the justice system) of Zagreb, represented by its president, Nada Landeka (case no. U-I-5612/2011).

2.- The proposal to institute proceedings to review the constitutionality of the Act on Amendments to the Public Bailiffs Act (Official Gazette, nos. 150/11, hereinafter: AAPBA/11) was filed by:

- Marko Lapaine of Varaždin (case no. U-I-6274/2011),

- Ante Šumelj of Zagreb (case no: U-I-178/2012),

- Marko Lapaine of Varaždin, Romuald Kantoci of Pregrade, Željko Ljubičić of Solina, Izabela Špoljar of Stubičkih Toplica, Gordana Mahovac of Nove Gradiške, Sunčica Gložinić of Varaždin, Blaženka Bošnjak of Zagreb, Ines Grubišić of Vranjica, Mirjana Jelavić of Virovitice, Vlatka Pižeta of Varaždin, Tomislav Perić of Zagreb, Bosiljka Grbašić of Zagreb, Nikolina Nežić of Zagreb, Lea Čavić of Zagreb, Đurđica Crnčević of Svetog Ivana Zeline, Dubravka Bašljan of Zagreb, Damjan Saridžić of Zagreb, Drago Burazer of Zagreb, Igor Buruš of Slavonski Brod, Darko Graf of Zagreb, Sandra Kasapović of Zagreb, Katarina Pažanin of Split, Milica Bjelić of Dubrovnika, Svjetlana Klobučar of Zagreb, Dragan Čupić of Zagreb, Irena Glogovšek of Zagreb, Martina Grgec of Zagreb, Vanja Buntić of Pula, Saša Čaldarević of Zagreb, Zdravko Vragović of Svetog Ivana Žabno, Ana Marković Ćoso of Bjelovar, Siniša Rajnović of Virovitica, Miroslav Lovreković of Križevci, Kristina Samardžić of Split, Sunčica Horvat Peris of Karlovac, Sandra Cindrić of Karlovac, Marijana Vrhovac of Županja, Marijana Kruhoberec of Varaždin, Martina Majcen of Lepajci, Tomislav Polić of Kaštel Novi, Vjenceslav Arambašić of Osijek, Ana Milković of Vinkovci, Dragan Petrović of Osijek, Zvonimir Žulj of Osijek, Zlatko Ilak of Zagreb, Višnja Fureš of Križevci, Vlasta Majstorović of Pula, Anđelko Rudeš of Slavonski Brod, Alma Opačak of Slavonski Brod, Tea Tončić of Pula, Bela Kocsis from Ugljan, Tihana Kušeta Šerić of Split, Denis Klarendić of Zadar, Višnja Merdžo of Rijeka, Mario Pešić of Biograd na Moru, Diana Butigan Granić of Dubrovnik, Dubravka Novaković of Zadar and Gordana Grancarić of Zagreb (case no: U-I-480/2012).

I. REASONS FOR DISMISSING THE PROPOSAL

3.- At its 20th session held on 23 November 2010, the Croatian Parliament passed the Public Bailiffs Act (hereinafter: PBA/10) by 111 votes "for" and four "abstentions". It was published in the Official Gazette no. 139, of 10 December 2010. Articles 1 and 2 PBA read:

"Article 1 This act regulates the organisation, authorities and operation of the public bailiff profession as a public service.

The public bailiff service and public bailiffs

Article 2 (1) The public bailiff service shall conduct enforcement on the basis of enforcement documents in conformity with the provisions of the Enforcement Act or another special act, except in cases where the conduct of such enforcement falls under the exclusive jurisdiction of a court or another body. It shall undertake necessary actions related to the implementation of enforcement in the territory of the Republic of Croatia and perform other duties provided for in this act or in other laws.

(2) The public bailiff service shall be performed by public bailiffs as autonomous and independent agents of the service, who possess the characteristics of persons of public trust.

(3) Public bailiffs shall perform the service as an exclusive profession during the time for which they have been appointed."

In the part under consideration in these Constitutional Court proceedings, the PBA/10 should have come into force on 1 January 2012 (Article 122. PBA/10),

4.- At its 2nd extraordinary session held on 22 December 2011, the Croatian Parliament passed the Act on Amendments to the Public Bailiffs Act (hereinafter: AAPBA/11) with 86 votes "for" and 24 votes "against". It was published in the Official Gazette no. 150 of 22 December 2011. That act read:

"Article 1 In the Public Bailiffs Act (Official Gazette no. 139/10) in Article 122.1, the words: '1 January' are replaced with the words '1 July'.

Article 2. This act shall enter into force on day of its publication in the 'Official Gazette'."

5.- At its 4th session held on 21 June 2012, the Croatian Parliament passed the Act on Amendments to the Public Bailiffs Act (hereinafter: AAPBA/12) by 79 votes "for", 28 "against" and eight "abstentions". It was published in the Official Gazette no. 70 of 28 June 2012. That act read:

"Article 1 In the Public Bailiffs Act (Official Gazette no. 139/10 and 150/11) in Article 122.1, the words: '1 July 2012' are replaced with the words '15 October 2012'.

Article 2. This act shall enter into force on day of its publication in the 'Official Gazette'."

6.- At its 5th session held on 28 September 2012, the Croatian Parliament passed the Act Repealing the Public Bailiffs Act (hereinafter: the ARPBA) by 84 votes "for", 24 "against" and five "abstentions". It was published in the Official Gazette no. 112 of 11 October 2012. That act read:

"Article 1 The Public Bailiffs Act (Official Gazette no. 139/10, 150/11 and 70/12) shall be repealed on the day this act comes into force.

Article 2 On the day this act comes into force, the service of public bailiffs, appointed pursuant to the Public Bailiffs Act, shall cease to exist (Official Gazette no. 139/10, 150/11 and 70/12)

Article 3 This act shall be published in the 'Official Gazette', and comes into force on 15 October 2012."

7.- When the ARPBA came into force on 15 October 2012, the PBA/10 was no longer in force.

8.- Before the ARPBA came into force, the Constitutional Court had not instituted proceedings to review the constitutionality of the PBA/10 pursuant to Article 44.2 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: the Constitutional Act), which reads:

"Article 44 (…)

(2) The proceedings to review the constitutionality of the law and the constitutionality and legality of other ordinances upon the proposal shall be considered instituted on the day the ruling to institute the proceedings was adopted."

9.- Article 32 of the Constitutional Act prescribes:

"Article 32 The Constitutional Court shall by a ruling dismiss a request, a proposal ...and on all other occasions when the requirements do not exist to decide on the merits of the case."

10.- When the ARPBA came into force, by which the PBA/10 was repealed, the requirements no longer existed for Constitutional Court proceedings, and thereby the requirements also no longer existed for deciding on the merits of the case in relation to all the complaints by the proponent (case no. U-I-5612/2011), and the complaints of the other proponents (cases nos. U-I-6274/2011, U-I-178/2012 and U-I-480/2012) in the part dealing with the effect of the PBA/10 in abstracto.

Pursuant to Article 32 of the Constitutional Act, it was ruled as in the operative part.

11.- One year after the...

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