ࡱ> bda5@]bjbj22 .bXX(JJJ|X28L^$2P("'''''''$*Rp,:'Q' (d"d"d"'d"'d"@d""%% `jSNyx l%g', (0P(%,-!d-%22%&-%t2Hd"''22 H"22 Impact of Decisions of International Tribunals on National Law Croatian Experience (A very rough draft to be presented at the "Prvi dnevi evropskega prava", Kranjska Gora, 21.-22. XI 2003.) Sinia Rodin * Abbreviations: Const. Ct. Constitutional Court Cornell L. Q. Cornell Law Quarterly ECHR European Court of Human Rights EHRC European Human Rights Convention Harv. L. Rev. Harvard Law Review N.n. - Narodne novine (Official Journal of the Republic of Croatia) Zborinik PFZ Zbornik Pravnog fakulteta u Zagrebu The main proposition of this paper is that national reception of law as stated in decisions of international tribunals makes a little sense in absence of reception of policy that stands behind these decisions and, in case of the judicial branch, in absence of reception of methodological tools applied in pursuance of such policy. Following some general remarks addressing these issues I will exemplify the process of interaction of the Croatian legislative and judicial branch with the European Court of Human rights. I. Idea that every legislation rests on certain underpinning policy originates probably from Rudolph von Jhering and is encapsulated in his famous maxim Keine Handlung ohne Zweck.  Since the end of the 19th century this understanding has caught much firmer ground on the American side of Atlantic where it fuelled the rise of American legal realism. However, even in Europe it was gradually becoming more clear that narrow and formalistic interpretation of law is becoming increasingly useless in dealing with complex issues of law posed by the rising interventionist state of the 20th century. Linkage of legal problems with economic and social realities has re-defined the task of lawyers, particularly judges, of the 20th century. Legal logic became meaningless in absence of policy considerations. As it was brilliantly put by John Dewey taking example of the famous syllogism,  "the issue is not whether Socrates was mortal, the point is whether this mortality would or should occur at a specified date and in a specified way."  Arguments of policy are used both by political and judicial branch of government. Dworkin understood them as those that " justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole."  Thus, I argue, impact of decisions of international tribunals in a national legal order, necessarily depends not only on the final outcome of these decisions the result of judicial thinking, but also on the policy that these decisions are based on. Accordingly, national reception of decisions of international tribunals, if it is to bear any meaning in national legal system, by necessity has to reflect not just a final outcome, but policy considerations too. Let me exemplify this with an example. In the Vasilescu case  the European Court of Human Rights ruled on application of the EHRC ratione temporis and decided that despite of the fact that Romania did not recognise the right of individual petition (Article 25) and the Courts jurisdiction (Article 46) at material time of the case, the Court had jurisdiction to hear the case since the applicants complaint related to a continuing situation, which still obtained at the time of the hearing. The result of this decision on the merits is that Ms. Vasilescu should be entitled to just compensation for the property taken, or even in broader sense, that citizens should be protected against arbitrary acts of government. However, the policy behind this decision was clearly to afford full and meaningful protection to the right to property one of the fundamental values of liberal democratic society value that amounts to a collective community good. If there is any consequence for national legislative and judicial branch in other Member States of the Council of Europe it has to be drawn not from the outcome of the case, but from the policy behind it. Similar can be said of the method applied in the process of reaching a decision. Take application of the principle of proportionality, either within the framework of the EHRC or within the framework of the Community Law. What is necessary in democratic society a legal requirement for validity of any national legal rule purporting to restrict fundamental rights is framed in such a way that begs an answer to a question of policy, and the question is all about the scope of rights understood as fundamental social goods and permissibility of government intrusion. In order to be capable of reception of the policy, national courts have to be equipped with adequate methodological tools at the first place. In other words, certain methodological and interpretative constructs, such as principle of proportionality, have to be shared by national and international courts as a condition for reception of policy enshrined in an international treaty and forwarded by an international tribunal. II. Let us now consider interaction between the Croatian legal system and the system established under the EHRC. On the Croatian side it is possible to identify the Constitutional Court and the Parliament as the main actors that were affected by the Convention, as interpreted by the European Court of Human Rights. The example concerns evolution of the principle of the exhaustion of legal remedies rule, or as it is usually called, the principle of subsidiarity of the Constitutional complaint a legal remedy for protection of fundamental rights an issue closely related to the right to effective remedy stipulated by Article 13 of the EHRC.  To begin with, the original text of the Constitutional Court Act  envisaged the principle of absolute subsidiarity of the constitutional complaint procedure, meaning that a constitutional complaint can be admissible only following exhaustion of all legal remedies, no exception provided. This provision was turned into a standing practice of the Constitutional Court, even in cases which involved deprivation of liberty in detention cases. As a consequence, regardless whether a detention decision of an ordinary court was justified or not, Constitutional Court was not prepared to hear a constitutional complaint before the decision on the merits became final, often after a considerable time.  However, in 1998, the Court changed its practice and took the position that Constitutional Complaint should be permissible against detention decisions in pending cases for purpose of protection of the Constitutional right to liberty.  In 1999, the Constitutional Court Act was amended and the new line of the Constitutional Court's case law was incorporated. According to the new provision of Art. 59(4) of the Act,  making an exception introducing a relative concept of subsidiarity of constitutional complaint in two instances: violation of the "reasonable time" rule and "severe infringement" cases. In 1999 the European Court of Human Rights delivered its decision in Horvat v. Croatia  where it found violation of Article 13 of the EHRC and held that "a complaint pursuant to section 59(4) of the Constitutional Court Act cannot be regarded with a sufficient degree of certainty as an effective remedy in the applicants case."  On November 9, 2000 Croatian Constitution was amended in order to incorporate  rights envisaged by Article 6 of the EHRC.  This was followed by an amendment of the Constitutional Court Act in 2002, in order to avail possibility of constitutional complaint in pending cases, along the new practice of the Constitutional Court.  Since then, a new article 59a that has become Article 63 of the Act  reduced the discretion of the Constitutional Court to control its docket in constitutional complaint cases and strengthened the relative concept of subsidiarity. Following the amendment a party wishing to invoke one of the two above mentioned exceptions from the exhaustion rule has, as a matter of law, and not as a matter of judicial discretion, access to the Constitutional Court.  The ECHR took notice of these legislative developments on July 4, 2002, in the Slavi ek v. Croatia case  where it found that even without recourse to practice of the Constitutional Court, the amendment to the Constitutional Court act renders legal protection in Croatia effective. Approximately at the same time, on July 10, 2002 as well as in subsequent cases the Constitutional Court embarked on the new course which is applied up to the day. First, the Court is not exercising judicial discretion to control its docket in constitutional complaint cases any more, as provided for Art 63 of the Constitutional Complaint Act. Second, the Court took formalistic approach to the understanding of the right to fair trial. It has construed it not from the internal constitutional order, but from an external source the EHRC.  III. What can be concluded from the above mentioned example, which is so far the most comprehensive evidence of interaction of national and international actors in Croatia. First, international law and decisions of the ECHR do matter in national legal order, and main actors, the Parliament and the Constitutional Court take notice of is shifts. However, both the Parliament and the Court seem to have been more concerned with the outcome of decisions of the ECHR, then with the process of thinking that led to them. Constitutional and legislative amendments seem to have been rather mechanical reaction to decisions of the ECHR then an endogenous process informed by policy considerations in furtherance of public good. Arguably, constitutional openness of the legal system and receptiveness of the kind exercised by the Constitutional Court, still fall short of the substantive policy analysis. Reasoning of the Constitutional Court remains formalistic and reactive, so formalistic, as we have shown, that certain fundamental rights, such as the right to fair trial, are construed as being based in international and not in national legal order. What would be a desirable change, insofar impact of decisions of international tribunals in national legal order is concerned, is taking into account not only results of their reasoning, but the reasoning itself. *** * Professor of European Public Law, Jean Monnet Module, University of Zagreb, Faculty of Law  Rudolph von Jhering, Der Zweck im Recht, Vierte Auflage, Leipzig 1904.  Socrates is a man, all men are mortal, thus Socrates is mortal  John Dewey, Logical Method and Law, 10 Cornell L. Q. 22 (1914-1925)  "Arguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole. The argument in favor of a subsidy for aircraft manufacturers, that the subsidy will protect national defense, is an argument of policy. Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right. The argument in favor of anti-discrimination statutes, that a minority has a right to equal respect and concern, is an argument of principle." Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 6 (1974-1975) 1057, 1059  Case Vasilescu v. Romania (53/1997/837/1043), judgement of the European Court of Human Rights of May 22nd 1998  EHRC, Art 13: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."  N.n. 13/1991  See e.g. decision of the Const. Ct. No. U-III-32/1992, N.n. No. 42/1992  Decision of the Const. Ct. No. U-III-1162/1997, N.n. No. 156/1998  Constitutional Court Act, Nn 99/1999: The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party s constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.  Application no. 51585/99, for a commentary see Lidija Lukina Karajkovi, Izvraenje presuda Europskog suda za ljudska prava u Strasbourgu, 53 Zbornik PFZ 2 (2003) 407, 412  Id. 45  Quite unneccessarily, since international treaties make part of Croatian national legal order under article 140 (originally Art. 134) of the Constitution  Article 10 of the Odluka o proglaenju promjene Ustava RH, Narodne novine 113/2000 of November 16, 2000: "Article 29 of the Constitution is ammended and reads as follows: "Everyone shall have the right to the independent and fair trial provided by law which shall, within a reasonable term, decide upon his rights and obligations, or upon the suspicion or the charge of a penal offence. "  N.n. 29/2002  Constitutional Court Act, Nn 49/2002, Consolidated text  The Constitutional Court shall institute constitutional complaint proceedings before exhaustion of legal remedies in case where an ordinary court has not decided, within reasonable time, about rights and obligations, or upon the suspicion or the charge of a penal offence, or in case where a contested individual act severely infrenges constitutional rights and it is clear that failure to institutie proceedings before the Constitutional court would entail serious and irreparable consequences for the applicant.  Application no. 20862/02: "Although the Constitutional Court has not yet adopted any decision following the introduction of the new remedy, the wording of Section 63 of the 2002 Constitutional Act on the Constitutional Court is clear and indicates that it is specifically designed to address the issue of the excessive length of proceedings before the domestic authorities. According to the new law everyone who deems that the proceedings concerning the determination of his civil rights and obligations or a criminal charge against him have not been concluded within a reasonable time may file a constitutional complaint. The Constitutional Court >TUh  ) w   V c " Ƽ|sjfb^b^b^Z^Z^h* #h@h)]vhVhIg=hCJhIg=h3ZCCJh ph pCJh ph pCJmHsHh ph p:CJmHsHhibIhibICJmHsH hVCJhIg=hVCJhm hk$^0Jhk$^hh6ThhmCJ h6ThCJh6Thh6ThCJh6ThhCJhh05hhm5#U ) O w      00 dh`gdt dh`gdIg=gd pgdIg=dhgdIg= $dha$gdIg=E1]]" ^ `    m u S Z hjMX-./+./0+?@ƼƼ~~hh6jh0JUh ghrhh@jht0JU h ghtht hthtjhC^0JUhC^hNhNH*jhsW0JUh9hN6hNh9hsWhhIg=h)]vh* #1BN 37IlA} Iqrtwx*7c?̸hJjhV0JUhVhadhA0w6 had6hadhad6hadhA0wh2qhh@hyh\yhoWhQhha!hhPhUhhG htht ht6htht6h:ht1stx#)+++@1A1E111-2s24 x`gdt x`gd9 $dha$gd/R$dh`a$gdIg= dh`gdIg= dh`gdIg= $dha$gdIg=dhgdIg=dhgdt?@\q!? !3!!!!!!"["\"]"^""###^#d#e#f#h#o#p#q#r#{###e$f$ᵫᵧjh-B0JUh-Bh jh0JUhrh6hjhYV0JUhYVjh3ZC0JUh#ajhp0JUhHh\wh(hph3ZChVh(hA0w6hA0wjhA0w0JU3f$g$i$r$u$$$$$$ %&%.%%%%%%%%f&r&w&&&&&&v'w'x'y'(&(2(4())*p*-+l+++++++++_,j,I--ԾԾ樞h|hrh]9hh0jhs<0JUhs<jhU0JUhUhU6hUh9jh50JUh5h+jh+0JUh#ahnFjhP0JUhPh)h 5-..A.f/n//k0?1@1D1E1F11111111,2-2.2;2Q2S2V2b2s2t2v24444øЕЍЕtl`lh ph6mHsHhmHsHhthmHsHhjh0JUh9h6h9hmHsHh9h:mHsHh9h:mHsHh9hmHsHjh9h0JU h9hh9h0Jhmh/Rh+h,khphH`hrh%"44444444 5Y5[5`5a5b5_6`6a6e6n6o6}66666666666%7"9$9&9<9>9B99:=:>:?:̼̱̱̕ӱ̱̕ӱӱ{{k{h9h6mHnHsHuh9hmHnHsHuh9hmHnHuhh9hCJjh9h0JCJUh9hmHsHh9hH*h9h6 h9hjh9h0JUh phmHsHhmHsHh ph:mHsH*4a5_6n666"9>:I::n<}<<>W]]]] &`#$gdP x`gdC) idx`gd9 ^`gd9 x`gd9x[$\$`gd9 x`gdt?:@:B:I:J:K:::::::::::;;;; ; ;;;;;; ;";$;+;,;2;<;>;?;G;N;;k<n<o<p<t<}<~<<<<>>>>GA͉hC)hCJhmHsHhhCJmHsHh9hCJjh9h0JCJUh9hCJmHsH h9hjh9h0JUh9h6mHsHh9h6h9hmHsH5must examine such a complaint and if it finds it well-founded it must set a time-limit for deciding the case on the merits and it shall also award compensation for the excessive length of proceedings. The Court considers that this is a remedy which must be exhausted by the applicant in order to comply with Article 35 1 of the Convention."  See decisions of the Constitutional Court No. U-IIIA-880/2002, N.n. 83/2002, and more recently No. U-IIIA-740/2002, N.n. 9/2003 PAGE  PAGE 3 GA\W]X]]]]]]]]]]]]]]]]]]]]]]ýýýòýͮhmhs0JmHnHu h0Jjh0JUhsh9hmHsHh h9hjh9h0JUhC)hCJU]]]]]]]] $dha$gd/R &`#$gdPh]hgdP,1h. A!"#$% @@@ NormalCJ_HaJmH sH tH DA@D Default Paragraph FontViV  Table Normal :V 44 la (k(No List >@> sW Footnote TextCJaJ@&@@ sWFootnote ReferenceH*4@4 PHeader  p#.)@!. 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