Conclusion

Emergencies inevitably require application of unusual measures. This especially goes for global threats, such as is the spread of the Covid-19 virus. In my opinion, the present pandemic in the Croatian context undoubtedly represents the case of a ‘severe natural disaster’, foreseen in Article 17 of the Croatian Constitution.

At the same time, the emergency model made on the basis of Article 17 is not to be read as the ‘state of exception’ that leads to unrestrained discretion of the executive, but rather as an expression of the concept of constitutional ‘checks and balances’, that is of the rule of law. I personally believe that it should have been activated.

law, but the case represents a clear example of a new measure which, under Article 17 of the Constitution, would need to be approved by a two-thirds majority in the Par­liament. On the other hand, that the two-thirds majority is not an unachievable goal even in emergencies is clear from the fact that the Parliament enacted the amendments to the Law on the Civil Protection System with 108 representatives voting for it (the two-thirds in the Croatian case is 101 votes).

55 S. Issacharoff and R.H. Pildes describe well that approach in the American context, in my opinion also applicable here: ‘American courts have gravitated toward intermediate institutional options that reject the more extreme claims of either executive uni­lateralists or civil libertarian idealists. Contrary to the modern civil libertarian stance, the American courts have only rarely addressed these issues through the framework of individual constitutional rights. Yet contrary to the executive unilateralist position, courts have also been reluctant to find that the executive has unfettered discretion to make liberty/security trade-offs. Instead, the courts have developed a process-based, institutionally oriented (as opposed to rights-oriented) framework for examining the legality of governmental action in extreme security contexts. Through this process­based approach, American courts have sought to shift the responsibility for these dif­ficult decisions away from themselves and toward the joint action of the most demo­cratic branches of the government.’ See: Issacharoff, S.

56 See: Decision of the Croatian Constitutional Court: U-I-1372/2020, 14 September 2020 (L. Kusan, A. Abramovic and G. Selanec, dissenting).

In that scenario, Article 17 would have placed upon the undertakings of the Croatian authorities dealing with the threat more appropriate means of democratic parliamentary control. On the other hand, judicial review mechanism would still be in place for protecting both the constitutionally guaranteed rights and freedoms and for checking upon the crisis measures of the Government.

Ironically for the Constitutional Court, the application of Article 17 would have also given it more fuel for being deferent to political branches because the pro­portionality principle included in Article 17 allows for far more flexibility than its counterpart in Article 16. This way, the Court approved some sort of ‘Business as Usual’ model to the whole situation,^[592] even though in practice it largely moved out of the way of the Government.

Such an approach, of course, comes with significant costs. Judicial validation of governmental crisis actions as being under the framework of an ordinary situation not only blurs the distinction between a regular and an emergency constitution. It also establishes a ‘principle’ that ‘then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need’.^[593]