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Access to Constitutional Courts: Popular Complaints in Croatia, Slovenia and Macedonia

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Access to Constitutional Courts: Popular Complaints in Croatia, Slovenia and Macedonia Zurich Open Repository and Archive University of Zurich Main Library Strickhofstrasse 39 CH-8057 Zurich www.zora.uzh.ch Year: 2017 Access to constitutional courts: popular complaints in Croatia, Slovenia and Macedonia Thoonen-Tornic, Ana Posted at the Zurich Open Repository and Archive, University of Zurich ZORA URL: https://doi.org/10.5167/uzh-158643 Dissertation Published Version Originally published at: Thoonen-Tornic, Ana. Access to constitutional courts: popular complaints in Croatia, Slovenia and Macedonia. 2017, University of Zurich, Faculty of Law. Access to Constitutional Courts: Popular Complaints in Croatia, Slovenia and Macedonia Dissertation der Rechtswissenschaftlichen Fakultät der Universität Zürich zur Erlangung der Würde einer Doktorin der Rechtswissenschaft vorgelegt von Ana Thoonen-Tornic von Zürich genehmigt auf Antrag von Prof. Dr. Andreas Auer und Prof. Dr. Lidija R. Basta Fleiner Die Rechtswissenschaftliche Fakultät gestattet hierdurch die Drucklegung der vorliegenden Dissertation, ohne damit zu den darin ausgesprochenen Anschauungen Stellung zu nehmen. Zürich, den 5. April 2017 Die Dekanin: Prof. Dr. Brigitte Tag Preface My gratitude goes to Prof. em. Dr. Andreas Auer, who supervised my doctoral thesis. His most valuable suggestions and motivation gave me the necessary incentive and inspiration to finalize this study. My gratitude also goes to Prof. Dr. Lidija R. Basta Fleiner for the preparation of a second opinion. Furthermore, I would like to thank the Swiss National Science Foundation SNF for the financial support. The fellowship for prospective researchers and the Doc.Mobility fellowship allowed me to undertake two research periods from August 2012 until July 2013 and from December 2013 until May 2014 at the Law Faculty of the University of Zagreb in Croatia and to collect and analyze the necessary information for my study. Finally, I would like to thank my family and, above all, my husband, who unceasingly encouraged me to carry on and who has given me solid support during this entire period. This thesis shall therefore be dedicated to him. I Introduction Introduction After socialist rule came to an end in the 1990s the Successor States of the former Socialist Federal Republic of Yugoslavia (SFRY) adopted new consti- tutions based on the rule of law, constitutional supremacy and democratic rule. Ever since they have gone or are still going through profound economic, po- litical and legal changes. After having achieved independence it has, to this day, been the main topic on the political agendas of the Successor States to achieve a speedy integration into the European Union. Besides economic transformations, this presents them with the challenge of comprehensive re- forms implementing the principles of liberty, democracy and the respect for human rights. The new constitutions and the therein prescribed principles and rules, human rights and liberties of individuals constitute formal and substantive limits to the state authorities and bodies vested with state power. A strong constitutional adjudication and the broad accessibility to the constitutional courts play a fun- damental role for the enforcement of these guarantees and the consolidation of the constitutions in the Successor States. The constitutional courts are vested with comprehensive powers to monitor acts and actions of the state authorities with respect to their compatibility with the constitutions. So as to enforce the constitutional order they are empowered to invalidate state acts for being inconsistent with the latter. These review powers comprise acts of an individual and concrete nature adopted by the judicial and executive powers as well as laws and other acts of legislation. The broad accessibility of the constitutional courts of the Successor States has been accomplished by several means which entitle individual persons to re- quest the constitutional courts to review state acts with respect to their com- patibility with the constitutions. The most noteworthy of these access rights is the entitlement of natural and legal persons to file complaints against laws and other acts of legislation without having to demonstrate a legal interest. With the exception of Bosnia and Herzegovina and the Republic of Kosovo, whose constitutions are to a great extent influenced by the Western model, all other Successor States provide for popular complaints as means of individual access to their constitutional courts. II Due to their particular nature such popular complaints fundamentally differ from other legal remedies in public and constitutional law proceedings. Be- cause they can be filed without a personal concern and legal interest, popular complaints allow practically unrestricted individual access to constitutional courts. As remedies for the initiation of judicial review proceedings they serve the enforcement of the abstract constitutional order against the legislative au- thorities. As individual access rights they, at the same time, entail features of legal remedies for the protection of subjective rights. Because unlimited access of individuals to constitutional courts predomi- nantly faces resistance, popular complaints are rather uncommon in a Euro- pean perspective. They can be found only in single states or at the subnational level. Also the European Commission of Democracy through Law (generally known as Venice Commission) regularly advises against introducing popular complaints.1 The practically unlimited access of individuals to the constitutional courts in the Successor States of the SFRY raises the question as to the actual function and significance of popular complaints as individual access rights. Detailed studies on access of individuals to constitutional courts are rare. In light of that the Venice Commission commissioned the publication of two sig- nificant studies providing a comprehensive overview over the different means of individual access in the member states of the European Council: «Der Zugang des Einzelnen zur Verfassungsgerichtsbarkeit im Europäischen Raum»2 and «Study on Individual Access to Constitutional Courts»3. Numer- ous studies can be found with respect to the individual or constitutional com- plaint as classic remedy for human rights protection and as most spread means of direct individual access to constitutional courts. Detailed studies exist for instance in relation to the German Verfassungsbeschwerde but also in the in- dividual Successor States considered. In contrast hereto, there seem to be 1 The Venice Commission is the Council of Europe’s advisory body on constitutional mat- ters. Established in 1990, the Commission has contributed to a significant extent to the adoption of European constitutional standards in the fields of democracy, human rights and the rule of law in the Successor States of the former SFRY and all post-communist and -socialist states after transition. For more information see <www.venice.coe.int/WebForms/pages/?p=01_Presentation&lang=EN> (last accessed September 2018). 2 Venice Commission Document CDL-JU(2001)22. 3 Venice Commission Document CDL-AD(2010)039rev. III Introduction hardly any in-depth studies on popular complaints as access rights of individ- uals to constitutional courts. A reason for this could be the fact that, with a few exceptions on the national and subnational level, these access rights are rather uncommon in European systems. The Bavarian popular complaint, for exam- ple, is analyzed in a number of doctoral theses and the meanwhile abolished popular complaint in Hungary has been subject of a couple of academic pub- lications as well. To the knowledge of the author there are, however, no detailed procedural or comparative studies about the popular complaints in the Successor States of the former SFRY. Also in domestic legal doctrine these means of direct indi- vidual access find attention mostly in a general way in relation to the initiation of judicial review proceedings or to the heavy workload of the constitutional courts. The present study aims at providing an answer to the above raised question about the function and significance of popular complaints in a procedural and practical aspect. Besides, the overall research question relates to the actual institutional significance of these complaints for the enforcement of the con- stitutional orders and for the consolidation of the new constitutions in the Suc- cessor States. In this respect the popular complaints in the Republics of Croa- tia, Slovenia and Macedonia are examined in a comparative manner. In ac- cordance with their procedural arrangements these three complaints represent three different models which developed in the Successor States after transi- tion. With respect to the procedural requirements the popular complaint in Slovenia stands for the most restricted form. The Croatian complaint is as- sessed in place of the popular complaints provided in Serbia and Montenegro, because of the comparability of the respective procedural arrangements. The choice of the popular complaint as provided in Macedonia as third model is finally justified by the limited protection offered by the constitutional com- plaint, allowing direct access to the constitutional court in parallel with the popular complaint. In Chapter 1 the bases for the study on the popular complaints in Croatia, Slo- venia and Macedonia are laid. In order to narrow down and to classify the object of investigation, the study in a first step describes the types and function of access rights of individuals in general and the
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