Brioni, Croatia 23-25 September 1995 CDL-STD(1995)015 Or. Engl. Science and technique of democracy, No. 15 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) The protection of fundamental rights by the Constitutional Court Brioni, Croatia, 23-25 September 1995 TABLE OF CONTENTS Opening session ............................................................................................. 2 Introductory statement - by Jadranko CRNIĆ ......................................................................... 2 Introductory statement - by Antonio LA PERGOLA .............................................................. 4 Rights suitable for protection by constitutional complaint procedures ................. 9 What rights can be duly protected by a constitutional complaint - Report by Mr Jadranko CRNIĆ.................................................................................................................................. 21 Contesting the arbitration decision in the proceedings before the Constitutional Court according to the Croatian law - Report by Mr Hrvoje MOMČINOVIĆ ................................ 62 Procedures other than constitutional complaints for protecting human rights.... 83 Procedures for the protection of human rights in diffuse systems of judicial review - Report by Professor Donald P. KOMMERS.......................................................................................... 83 Interlocutory review - Abstract review - Report by Professor Lorenza CARLASSARE..... 107 Admissibility requirements for constitutional complaints and mechanisms for avoiding an excessive case load 124 Admissibility requirements for constitutional complaints and mechanisms for avoiding an excessive case load - Report by Ms Helga SEIBERT ........................................................ 125 Admissibility requirements for constitutional complaints and mechanisms for avoiding an excessive case load – Report by Mr Velimir BELAJEC...................................................... 136 Remedies and effects of decisions inconstitutional complaint procedures ........ 153 Remedies and effects of decisions in constitutional complaint procedures - Report by Ms Britta WAGNER................................................................................................................. 154 Papers submitted to the seminar .................................................................. 176 The protection of fundamental rights by the Constitutional Court and the practice of the Constitutional Court of the Republic of Slovenia - Paper by Mr Arne MAVĆIĆ ................ 178 The Supreme Court of Canada and the Protection of Rights and Freedoms - Paper by Senator Gérald BEAUDOIN............................................................................................................ 201 The constitutional court of the Russian Federation and the protection of the (constitutional) fundamental rights and freedoms of citizens - Paper by Mr Nikolai V. VITRUK................ 248 Protection of fundamental freedoms and rights before the constitutional court during time of war - Paper by Mr Nedjo Milićević ..................................................................................... 257 Closing speech ........................................................................................... 265 Mr Jadranko CRNIĆ, President of the Constitutional Court of Croatia ............................... 265 List of participants ...................................................................................... 267 Opening session Chaired by Mr Antonio LA PERGOLA Opening statements by : a. Mr Jadranko CRNIĆ, President of the Constitutional Court of Croatia b. Mr Antonio LA PERGOLA, President of the European Commission for Democracy through Law Introductory statement - by Jadranko CRNIĆ President of the Constitutional Court of Croatia I have a special pleasure to welcome Mr Nikica Valentić, Prime Minister of the Republic of Croatia as the special representative of the President of the Republic of Croatia, Dr Franjo Tudjman. Expressing our thanks for this representation and attendance, please allow me to point out that Mr Valentić himself is a distinguished lawyer, an attorney for many years, and consequently our colleague. I hereby thank the Prime Minister for his presentation which has a special significance in the land in which the rule of law is one of the highest constitutional values, the land in which the Constitutional Court occupies the position of an inter-branch of government, on which I will elaborate in my report. Yesterday, I already had the honour to welcome Prof. Antonio La Pergola, President of the European Commission for Democracy through Law, and now I wish to welcome him again, as well as all his collaborators. If I assert that today the Brioni isles are the capital of the European constitutions, then it is a matter of fact and honour, because we have in our midst many Presidents or Vice-Presidents of numerous constitutional courts, as well as Prof. Dr. Laszlo Solyom, President of the Constitutional Court of Hungary and Chairman of the 10th Conference of the Constitutional Courts of Europe, the highest authority, the roof association of the constitutional courts. I would like to express special thanks to Prof. Dr. Solyom for preferring our meeting to another important meeting on a similar topic taking place in Budapest at the same time. Please allow me also to welcome Mr Miroslav Šeparović, Minister of Justice of the Republic of Croatia; Mr Luciano Delbianco, Prefect of the County of Istria; and the Mayor of the town of Novi Vinodolski, Mr Zlatko Pavelić, with his associates, to whom we extend our thanks for presenting all participants with a copy of the "Vinodolski zakonik"/the "Vinodol Act" book, an act which belongs to the oldest documents of the Croatian legal history, written in the Croatian language and script in 1288. On this occasion, I would like to explain to you what the sign on all our invitations, letters and pads means : it is the initial letter of the Act meaning "In the name of God". Yesterday, awaiting your arrival with anticipation, I and all my collaborators tried to show you how much the arrival of each and every one of you means to us, how pleased I am that you have come in spite of your numerous, difficult and responsible commitments in converting the noble idea of democracy into reality through law, doing your utmost - in the words of the Bible - that from the beginning at which there was the Constitution, the Constitution should become a living fact. I hope that our efforts in showing what your arrival meant to us can excuse me for not mentioning each of you individually, and that you could all feel our joy. We are proud of the fact that in this long search for democracy through law, which as you know best is not strewn with roses but rather with thorns - therefore : per aspera ad astra - the science and practice walk the same road hand in hand. This guarantees that on these isles in our country, the Republic of Croatia, in which we never subscribed to the ancient Roman dictum according to which "inter arma silent musae", the profuse combination of science and practice will advance one step further in the judgment of the marvellous remedy called the constitutional complaint, with a long tradition in some countries and still unknown in others, always praised and always criticised. We shall probably give rise to new doubts, new disputes, but shall muster new support and contents as well. On behalf of all judges of the Constitutional Court of the Republic of Croatia and all our associates, I once again thank each and every one of you and wish you fruitful proceeding with your work, a pleasant stay and, in short, continuing of the UniDem seminar tradition. Introductory statement - by Antonio LA PERGOLA President of the European Commission for Democracy through Law It is a priviledge and a heartfelt pleasure to address you here on this beautiful island, for a UniDem Seminar on the protection of human rights by constitutional courts. Let me extend the Commission's warm welcome to our distinguished guests from nearly all courts in Central and Eastern Europe and from some Western European courts, as well as scholars and practioners of law. Let me say how grateful all of us are to our hosts. Every seminar on which we engage is an excercise in a most advanced form of cultural solidarity. It is a meeting of like minded people who share the urge to discover and appreciate the values we have in common. And the place where our Croatian friends have staged this seminar has all the bewitching appeal of a corner of paradise on earth. Our sincere appreciation goes to you, Mr President of the Constitutional Court, to all your colleagues and the members of the court Secretariat, to our old, dear friend Mr Nick, and to all the other persons who have contributed to organise this seminar here and offer us such overwhelming hospitality. We are lawyers, and each of us feels she or he belongs in the community of the thought ways that are reflected in our Commission across national borders. Democracy through law is a world view on which those who make the law, or apply and explain it, know they can rely. A world view that works both inside and above the nation state. That is why our UniDem seminars address issues that seem to be raised in unison by the hand of the common destiny of all peoples living in the same conditions of legality and freedom. A little more than a year ago, in Bucharest, at the invitation