Constitutional Court: Those Connected to the State Are Not Equal Before the Law

If it is justified for the Constitutional Court to challenge the right to file a constitutional complaint against the Republic of Croatia and local and regional self-government units, it is problematic that this right is also challenged for domestic companies owned or having shares held by the state or local self-government units, which participate equally in the market competition with all others.

Every natural and legal person has the right to address the Constitutional Court of the Republic of Croatia with a request for constitutional protection if they believe that their human rights or fundamental freedoms guaranteed by the Constitution have been violated by an individual act of a state authority, a local and regional self-government unit, or a legal entity with public authority that has decided on their rights and obligations or on suspicion or accusation of a criminal offense.

As one of the fundamental constitutional rights, the Constitution prescribes equality of all before the law (Article 14, paragraph 2) and the right of everyone to have an independent and impartial court established by law decide fairly and within a reasonable time on their rights and obligations (Article 29, paragraph 1). However, the Constitutional Court challenges the right to file a constitutional complaint against the Republic of Croatia, local and regional self-government units, domestic companies, and other legal entities whose member is the state or a local and regional self-government unit, including legal entities with public authority (hereinafter: public law entities).

‘By the nature of things…’

In its decision no. U-III/2154/2007 of November 5, 2009, the Constitutional Court dismissed the constitutional complaint filed by the Republic of Croatia against the ruling of the Supreme Court of the Republic of Croatia, reasoning that ‘the constitutional complaint is a constitutional legal remedy for the protection of human rights and fundamental freedoms that may be violated by individual acts of state or public authorities. The state is not authorized to file a constitutional complaint against the decisions of its bodies, nor is it possible by the nature of things for it to have its human rights and fundamental freedoms violated,’ a position it also took in Decision no. U-III/1709/2009 of March 5, 2013.

The Constitutional Court has taken the position that local self-government units are also not authorized to file a constitutional complaint (except for the so-called communal constitutional complaint) in Decision U-III/462/2010 of September 10, 2013, according to which ‘local self-government units are authorized to file a constitutional complaint under certain conditions, but only if it seeks protection against unconstitutional interventions in their constitutional right to local self-government (the so-called communal constitutional complaint). Only in that case, therefore, ‘local self-government units are recognized as holders of constitutional rights, not as obligors of their protection’.

The limitation is expanding

Commercial companies whose founder is the Republic of Croatia or a local and regional self-government unit and legal entities with public authority are not authorized to file a constitutional complaint. With its decisions, the Constitutional Court has dismissed constitutional complaints filed by the State Agency for the Protection of Deposits and Bank Rehabilitation, Hrvatske ceste, ZET, HZZO, CERP, Port Authority, Hrvatske vode, hospitals, HPB… In these decisions, the Constitutional Court justifies the denial of constitutional legal protection by stating that the complainant is an entity organizationally, functionally, and subordinately financially connected to the state, so in these circumstances, it cannot be a holder of the protection of constitutional rights and lacks active legitimacy (locus standi) to file a constitutional complaint.

Interestingly, the limitation on filing a constitutional complaint is automatically extended by the Constitutional Court even to foreign public law entities, dismissing constitutional complaints filed against the decisions of Croatian courts (for example, Decision no. U-III/1370/2018 of December 18, 2018).

Does the Constitutional Court protect then?

The described limitations on the ability to file constitutional complaints certainly lead to inequality in the protection of rights guaranteed by the Constitution, primarily for those public law entities that participate equally in market competition with companies whose member is not the state or a local or regional self-government unit. This also means that the Constitutional Court, when deciding on the admissibility of a constitutional complaint, is obliged, in addition to fulfilling other legal prerequisites for the admissibility of filing a constitutional complaint, to determine the ownership structure of the complainant.

Although we can agree that such an understanding of the Constitutional Court is justified in those relations where public law entities exercise public authority (iure imperii), the Constitutional Court unjustifiably neglects that public law entities can also act equally with other parties in legal relations (iure gestionis). The Law on Ownership and Other Real Rights in Article 35, paragraph 1, prescribes that public law entities that are holders of ownership rights have the same position as private owners in legal relations (iure gestionis), unless otherwise provided by law. Therefore, the Constitutional Court should examine in what capacity the public law entity acted when receiving a constitutional complaint in order to decide on the possibility of providing constitutional legal protection. Even less can the position of the Constitutional Court regarding the fact that foreign public law entities are not provided with constitutional legal protection be accepted, given that they, by the nature of things, cannot exercise their public authority in a foreign state, so in that sense, it is questionable whether they should be denied the requested constitutional protection.