Constitutional Court of the Republic of Croatia, 10 January 2001, No. U-III 727-1997
Constitution of the Republic of Croatia
International agreements concluded and ratified in accordance with the Constitution and made public, and which are in force, shall be part of the internal legal order of the Republic of Croatia and shall be above law in terms of legal effects. Their provisions may be changed or repealed only under conditions and in the way specified in them or in accordance with the general rules of international law.
Reference to international law to strengthen a decision based on domestic law
Dismissal/ Action before the Constitutional Court for violation of freedom of expression/ Reference to international law to strengthen a decision based on domestic law
A driver of the Ministry of the Interior had been dismissed by his administration for professional inadequacy. After a series of adjudications, the complainant instituted proceedings before the Constitutional Court of Croatia, affirming that his employment contract had been terminated because he had expressed his personal opinions in the course of his duties. He argued furthermore that since the courts had not taken account of the essential facts of the case (and in particular the real reasons for the dismissal) they had not given him the opportunity to avail himself of an effective legal remedy.
To found his action, the claimant referred to a violation of the Constitution, of the International Covenant on Civil and Political Rights, and of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Constitutional Court of Croatia analyzed the relevant provisions of the Constitution in order to determine whether the claimant’s freedom of expression had been violated and established that the right to freedom of expression enshrined not only in Article 38(1) of the Constitution but also in several international instruments had indeed been infringed:
“The Constitutional Court points out that no person’s employment may be terminated due to an expressed personal opinion, and thus also not the applicant’s in his capacity of an employee of the Ministry of the Interior. The right to the freedom of expression is guaranteed in Article 38 paragraph 1 of the Constitution, Article 10 of the European Convention2 and Article 19 of the International Covenant,3 and it may be restricted only in exceptional cases (in the interest of state security, territorial unity, public order and peace, preventing disorder or crime and similar), and these were not the basis for the termination of the applicant’s employment in the present case, nor were they discussed or determined in court.”
The Constitutional Court then established further that the lower courts had not examined the reasons for the driver’s termination and found that that dismissal contravened the articles of the Constitution guaranteeing equality before the law, the right of appeal and the right to a fair trial. It gave force to its remedy by underlining that these rights were also enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the International Covenant on Civil and Political Rights.
“On the grounds of the same reasons that serve as the basis for the infringement of the cited constitutional provisions, the disputed judgments are also in breach of the relevant provisions of the International Pact on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
Having established that the rights guaranteed by the Constitution had been infringed, the Constitutional Court of Croatia relied on international instruments in two instances to strengthen its decision and to underline the importance of the fundamental rights that had been violated. It thus ruled that freedom of expression could not constitute a reason for termination and that the fact that the real reasons for the dismissal had not been sought violated the right to effective legal remedy. The Court overruled the judgments challenged by the complainant.
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for presenting the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.”