The Republic of Croatia has adopted the German-Austrian constitutional court system that is also seemed to be the classic European-continental model. Regarding the consti-tutional legal status of this body, there is no noteworthy difference between Serbia and Croatia: in both states this is the only special judicial authority which is vested by the
57 Ibid. Art. 13. Par. 1.
58 Ibid. Art. 14.
59 Ibid. Art. 19. Par. 1.
60 Zakon o službenoj upotrebi jezika i pisama (Law on Official Use of Languages and Scripts), Službeni glasnik Republike Srbije, br. 45/91, 53/93, 67/93, 48/94, 101/2005 – dr. zakon, 30/2010, 47/2018 i 48/2018 – ispr., Art. 12 Par. 1–2.
61 Law on The Use of Languages and Script of National Minorities, Art. 10.
62 Constitutional Law on The Rights of National Minorities, Art. 13.
63 Act on birth registers, IDs, travel documents and, local municipalities, etc.
64 Act on civil, criminal and administrative procedure, etc.
65 The constitutional law on minority rights and the law on the use of minority languages.
competence to determine the explicit and the implicit meaning of constitutional legal norms by checking on the conformity of any act with the constitution, and to grant legal priority of the constitution over laws and any other acts.66
The Constitutional Court of Croatia primarily “decides on the conformity of a law with the Constitution”, “on the conformity of other regulations with the Constitution and the law,” and “may assess the constitutionality of laws and the constitutionality and legality of other regulations that have ceased to be valid”67 (which is called normative control or review of constitutionality and legality) furthermore, “decides on constitutional com-plaints against individual decisions of state bodies, bodies of local and regional self-gov-ernment units, and legal entities with public authority when these decisions violate human rights and fundamental freedoms, as well as the right to local and regional self-gov-ernment.”68 Regarding the possible outcomes of the proceedings, during the normative control, in case of determining the inconsistency of laws and other regulations with the Constitution and / or laws, the court may repeal the entire regulation or some parts there-of, or may annul the subject of constitutional and legality assessment in toto or in parte, bearing in mind the intensity of the violation of the Constitution, the law, and the interests of legal security: “if they infringe human rights and fundamental freedoms guaranteed by the Constitution; if they unreasonably put individuals, groups or associations in a more favorable or unfavorable position.”69
Resolving constitutional complaint, the Constitutional Court may accept the complaint and repeal the disputed act as a whole or in part (just some its provisions) by which a constitutional right has been violated; in case of passing a new act to replace the act that was repealed by the court decision the competent body is obliged to obey the legal opin-ion and eventual instructopin-ions of the Constitutopin-ional Court. The second optopin-ion is to refuse the constitutional complaint as not grounded.70 In these procedures the court examines only those violations of the constitutional rights that were expressed in the constitutional complaint, or in other words, the applicant shall state constitutionally relevant reasons of violation.71 The court does not consider those cases when the complaint does not deal with the violation of a constitutional right, or any other right of material or procedural character.72 In this context, constitutional right means a human right or fundamental free-dom, or right to local and regional self-government, guaranteed by the Constitution.73 But any violation of the Constitution does not lead automatically to the acceptance of the constitutional complaint: the violation of right has to be of such an importance and
66 Slobodan vučeTić: Uloga ustavnog suda u procesu tranzicije u Srbiji. [The role of the Constitutional Court in the process of transition in Serbia] In: Ustavni sud Srbije – u susret novom ustavu – Zbornik radova – referati. [The Constitutional Court of Serbia – meeting the new constitution − Collection of works − Reports].
Beograd, Ustavni sud Srbije, 2004, pp. 13−19 at p. 13.
67 Constitution of the Republic of Croatia, Art. 125, Par. 1, Items 1‒3.
68 Ibid. Art. 125, Par. 1, Item 4.
69 Ustavni zakon o Ustavnom sudu Republike Hrvatske (Constitutional Law on the Constitutional Court of the Republic of Croatia), Narodne novine, br. 99/99, 29/02, 49/2002 – prečišćen tekst, Art. 55.
70 Ibid. Art. 73–77.
71 Decision of the Constitutional Court of the Republic of Croatia No. U-III-540/1999 of 17 May 2000.
72 Constitutional Law on the Constitutional Court of the Republic of Croatia, Art. 71, Par. 1‒2.
73 Ibid. Art. 62, Par. 1.
intensity that justifies assessment of the court about the existence of the violation of the applicant’s constitutional right.74
Looking at the figures of the submitted constitutional complaints and requests/proposals for normative control from 2000, namely in the period that constitutes the timeframe of this research, a continuous increase can be detected in both the number of normative controls and procedures initiated by constitutional complaint; but there is no significant percentage difference in distribution of subjects of one or another kind of procedure in comparison with the statistics of the first decade (1990-1999).75 Domination of cases re-garding constitutional complaints in the activity of the Constitutional Court is the logical consequence of the universal character of this special legal remedy that might be lodged with the court literally by everyone “who deems that the individual act… has violated his/
her human rights or fundamental freedoms.”76 On the other side, it is interesting that there were more requests for normative control than constitutional complaints regarding cases resolved by the Croatian Constitutional Court in field of minority rights.
From the almost hundred thousand resolved cases in the last twenty years, only few ten were dealing with (alleged) violation of minority rights in Croatia (according to the re-sults of the research conducted by the author examining the available cases of the Cro-atian Constitutional Court, published on its official website).77 For example, in Hungary the percentage of cases of this kind is under 1% in the last three decades.78 In Croatia 38 decisions adopted in 51 cases are mostly results of normative controls (four times the Constitutional Court merged the cases because of common decision making regarding preferential representation of members of national minorities in representative bodies).
In 20 reviews of constitutionality of laws and six reviews of constitutionality and le-gality of lower legal acts, the Constitutional Court has annulled provisions of laws and other regulations eight times, still in the other proceedings, requests were refused or not accepted. Three decisions were made concerning legality of elections, one decision con-cerning constitutionality and legality of state referendum when the court has determined that the proposed referendum question was not in accordance with the Constitution, and further eight proceedings were analyzed, as well, instituted by constitutional complaints in which complaints were refused as not grounded, each time. It is important to note that during the selection of cases that are determined as cases related to minority rights in the constitutional court practice of Croatia, only those cases were selected in which there is a clear motivation to protect the rights of national minorities or majority people in relation to other ethnic communities. Those court decisions that in some way may have points of contact with minority rights (for example, the universal human right to education), but are
74 Decision of the Constitutional Court of the Republic of Croatia, No. U-III-2432/2008 of 07 October 2009.
75 Resolved cases by the Croatian Constitutional Court in the period between 1990 and 30 June, 2020.
See: https://www.usud.hr/sites/default/files/dokumenti/Pregled_rijesenih_predmeta_u_razdoblju_od_1990._
do_30._lipnja_2020.pdf, Applications to the Croatian Constitutional Court in the period between 1990 and 30 June, 2020. See: https://www.usud.hr/sites/default/files/dokumenti/Pregled_primljenih_predmeta_u_razdo-blju_od_1990._do_30._lipnja_2020.pdf
76 Constitutional Law on the Constitutional Court of the Republic of Croatia, Art. 62.
77 For the constitutional court practice in Croatia visit: https://sljeme.usud.hr/usud/praksaw.nsf.
78 Noémi nagy: ‚Nyelvében él a nemzet(iség)’ avagy a magyarországi nemzetiségek nyelvi jogainak alkot-mánybírósági védelme. [‚The nation(ality) lives in its language or protection of language rights of nationalities in Hungary before the constitutional court’]. In: Fundamentum, 2019/3-4, pp. 86–98, at p. 86.
not primarily aimed at protecting a specific right of a national minority (for example, the right to education in mother tongue, namely in the language of a national minority), were not classified in the analysis group.
The fact that comparing with the numbers in general statistics among the cases related to minority rights there are significantly more requests or proposals for assessing constitu-tionality and legality than constitutional complaints, as a rule reflects the logical behavior of members of minority communities not only in Croatia but also in general. Fear from eventual repression, misunderstanding of rights and mechanisms for their enforcement are only few examples of possible reasons why members of minorities do not ask for protection before the Constitutional Court. Otherwise in most of the analyzed cases ap-plicants of the constitutional complaints were lawyers or employees in the public sector who, regarding their profession, already knew the basic human and minority rights, and who stated in the respective cases that their ethnicity as a basis for positive discrimination was not considered during electoral procedure or employment, contrary to the law79. Regarding their themes the cases are various: 1) proportional representation in public administration and judiciary, 2) preferential representation in representative bodies and right to double vote during elections of these bodies, 3) issues concerning bodies of cul-tural autonomy of national minorities, and 4) official use of native language (regulation of official status of minority language either at local, or at regional level, visual use of languages on nameplates of towns, streets, squares, on seals, bilingualism of public doc-uments). In the next chapter, we deal with cases from this last group in order to find an-swers to the questions: whether the Constitutional Court has consistently interpreted the right of national minorities to official use of their mother tongue in different proceedings;
whether the court acted protectively towards all minorities in the same way, and finally, whether he based the decisions on the letter and/or the spirit of the Constitution.
4. Constitutional court practice in field of official use of minority languages –