Case nº U-I/4175/2013 of August 27, 2013. Proceedings for reviewing conformity of a law with the Constitution

Resolution Date:August 27, 2013
Issuing Organization:Constitutional Court
SUMMARY

Preliminary objections in proceedings for a review of conformity with the Constitution of the Financial Operations and Pre-Bankruptcy Settlement 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, Davor Krapac, Ivan Matija, Antun Palarić, Duška Šarin and Miroslav Šeparović, deciding in proceedings for a review of 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) on preliminary objections by Dalekovod d.d. Zagreb, represented by attorneys at law from the Madirazza & Partners Law Firm, Zagreb, at its session held on 27 August 2013, rendered unanimously the following

R U L I N G

I. It is hereby declared that in case no. U-I-4175/2013 a proposal has been filed to institute proceedings for a review of conformity with the Constitution of the Financial Operations and Pre-Bankruptcy Settlement Act (Official Gazette nos. 108/12, 144/12 – Decree, and 81/83) within the meaning of Article 38.1 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).

II. The ruling by Zagreb Commercial Court no. 66. Stpn-7/13 of 22 July 2013 on the stay of proceedings in case no. Stpn-7/13 is hereby quashed and the immediate continuation of these proceedings is ordered.

III. Other objections by Dalekovod d.d. are hereby dismissed.

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

STATEMENT OF REASONS

I. PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT

1.- On 29 July 2013, Mislav Kolakušić, a Zagreb Commercial Court judge, filed in person with the Constitutional Court "a request or alternatively a proposal for a review of the constitutionality of individual provisions of the Financial Operations and Pre-Bankruptcy Settlement Act...".

The applicant is a single judge working on Zagreb Commercial Court case no. Stpn-7/13 (hereinafter: single trial judge). He founded his submission to the Constitutional Court to institute proceedings for a review of the constitutionality of individual provisions of the Financial Operations and Pre-Bankruptcy Settlement Act (Official Gazette nos. 108/12, 144/12 – Decree, and 81/83, hereinafter: FOPBSA) on Article 37.1 (or alternatively on Article 38.1) 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 on the Constitutional Court of the Republic of Croatia or the Constitutional Act) which read:

"Article 37(1) If a court of justice in its proceedings determines that the law to be applied, or some of its provisions, are not in accordance with the Constitution, it shall stop the proceedings and present a request with the Constitutional Court to review the constitutionality of the law, or some of its provisions.

(...)”

“Article 38 (1) Every individual or legal person has the right to propose the institution of proceedings to review the constitutionality of the law and the legality and constitutionality of other regulations.

(...)"

The submission was signed by the single trial judge and was certified by the Zagreb Commercial Court seal.

2.- On 22 July 2013, seven days before the filing of the request with the Constitutional Court for the review of constitutionality of individual provisions of the FOPBSA (or alternatively of the proposal to institute these proceedings within the meaning of Article 38.1 of the Constitutional Act), the single trial judge rendered two rulings in Zagreb Commercial Court under case no. Stpn-7/13.

2.- 1. The first is the ruling by the Zagreb Commercial Court to stay the proceedings under no. 66. Stpn-7/13 of 22 July 2013 with the operative part which reads:

"These court proceedings are hereby stayed.

The request to review the constitutionality of individual provisions of the Financial Operations and Pre-Bankruptcy Settlement Act (Official Gazette nos. 108/12, 144/12 and 81/13) shall be submitted to the Constitutional Court of the Republic of Croatia within 8 days."

The statement of reasons of this ruling reads in its entirety as follows:

"During these court proceedings, the judge found that individual provisions of the Financial Transactions and Pre-Bankruptcy Settlement Act (Official Gazette no. 108/12) and of the Act on Amendments to the Financial Operations and Pre-Bankruptcy Settlement Act (Official Gazette nos. 144/12 and 81/13, hereinafter: FOPSA) are not in conformity with the Constitution of the Republic of Croatia.

Pursuant to Article 37.1 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Official Gazette nos. 99/99, 29/02 and 49/02) if a court in its proceedings finds that the law to be applied, or some of its provisions, are not constitutional, it shall stay the proceedings and submit a request to the Constitutional Court to review the constitutionality of the law, or some of its provisions.

The authority to render a decision to stay the proceedings stems directly from Article 120 of the Constitution of the Republic of Croatia (Official Gazette nos. 56/90, 135/97, 8/98, 113/00, 124/00, 28/01, 41/01, 55/01 and 85/10) which prescribes that judges are vested with judicial office in person.

Pursuant to Article 3 of the Courts Act (Official Gazette no. 28/13) courts protect the legal order of the Republic of Croatia established by the Constitution, international agreements and laws, and they ensure uniform application of the law, equal treatment and equality of all before the law.

The reasons for the found unconstitutionality of individual provisions of the FOPSA shall be given in the Request for the Review of the Conformity of Individual Provisions with the Constitution of the RC, which will be enclosed in the case file.

Following the above, it was decided as in the operative part of this ruling.

(...)

Information on available remedy:

Pursuant to Article 278.2 of the Civil Procedure Act, no remedy is allowed against this ruling."

2.- 2. The second ruling by Zagreb Commercial Court was rendered in the same legal matter under the same number as the ruling referred to in point 2.1 of the statement of reasons of this ruling (66 Stpn-7/13 of 22 July 2013), but it relates to the adjournment of the hearing. Its operative part reads as follows:

"The hearing scheduled for 23 July 2013 at 10 a.m. at Zagreb Commercial Court, Amruševa 2/2, room 100, shall not be held."

2.- 3. Due to the identical numbers under which both rulings were rendered on the same day in the same legal matter conducted before the same court, the Constitutional Court especially underlines that only the ruling on the stay of the pre-bankruptcy settlement proceedings is relevant for these preliminary proceedings.

3.- On 29 July 2013, Dalekovod, Joint Stock Company for Engineering, Manufacturing and Construction, Zagreb (hereinafter: Dalekovod d.d. Zagreb), filed a submission with the Constitutional Court entitled "constitutional complaint" in which it presented its objections to Zagreb Commercial Court ruling...

To continue reading

REQUEST YOUR TRIAL