Ratified treaty;¹ International case law²

Expropriation/ Competence of the Constitutional Court to verify the compliance of a law with a treaty/ Application of international law to waive a lower-ranking domestic provision/ Direct resolution of a dispute on the basis of international law

A citizen considered that the Expropriation Act³ violated the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as the protocols thereto. He affirmed that the fact that an expropriation procedure had not been subjected to court supervision violated Article 6⁴ of the Convention as well as its Protocols Nos. 1, 4, 6, 7 and 11. He instituted proceedings before the Constitutional Court to have the law appealed against declared incompatible with the provisions of the Convention.

Since the Constitution was silent on the competence of the Constitutional Court to assess whether a law complied with an international instrument, the Court first had to answer that question. In order to found its jurisdiction, the Court considered that the Constitution assigned it the task of ensuring that the hierarchy of standards was complied with and thus found that:

“If the decision of the Constitutional Court on the compliance of a law with the Constitution, and on the compliance of other regulations with the Constitution and the law, is in fact a decision on the compliance of a lower-ranking regulation with a higher-ranking regulation and with the Constitution, as the highest-ranking regulation, then the authority of the Constitutional Court to review the compliance of a law with an international treaty is a logical consequence of the constitutional provision whereby the international treaty, which has been ratified and published, forms a part of the domestic legal order and is by legal force ranked higher than a law.”⁵

The Constitutional Court of Croatia then examined the articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as the case law of the European Court of Human Rights.⁶ The latter Court had found that courts responsible for settling a dispute concerning a civil right or obligation should make a finding of facts independently and that the procedure should be oral and one in which both parties are heard. The Court held that the administrative procedure provided by the Expropriation Act did not meet these conditions.

The Constitutional Court of Croatia ruled that the law contravened the European Convention for the Protection of Human Rights and Fundamental Freedoms and thus also the Constitution.