Covid-19 pandemic in Croatia

The forms of state of emergency in the Croatian Constitution are regulated in two central provisions. Article 17 deals with criteria on restrictions of funda­mental rights and freedoms and may be applied in a state of war, immediate threat to the independence and unity of the State, or in the event of severe nat­ural disasters.

Faced with the Covid-19 threat, Croatia proclaimed an epidemic on 11 March 2020. Despite the growing and global spread of the virus, Croatian authorities decided to act on the basis of powers conferred by the special leg­islative acts and did not invoke Article 17 of the Constitution. In order to better understand the situation, I am here presenting explications related to two special laws that, up to this date, have served as the legal ground for dealing with the pandemic.

The first step made for the purpose of strengthening the special powers inten­ded to be used was an amendment made to the Law on the Civil Protection System. A newly added Article 22.a thereof provided that the body called ‘the National Civil Protection Headquarters’^[566] has the power to ‘render decisions and guidelines to be implemented by the civil protection authorities of the local and regional governments’ in case of ‘specific circumstances involving an unpredictable or uncontrollable event or state endangering the lives and health of citizens’. According to Article 22.a, those ‘decisions’ and ‘guidelines’ are enacted ‘for the purpose of protecting the lives and health of citizens’.^[567] It is to be noted that the amendment to the Law on the Civil Protection System was enacted after only one day of parliamentary deliberations with 108 votes for the amendment. This made an overwhelming majority, extending beyond two-thirds of all parliamentary representatives.^[568] Immediately after this amendment, the Headquarters started to enact anti-epidemic measures, the first one being the temporary restriction of crossing the state borders.^[569]

On the other hand, even before the pandemic, the Croatian parliament enacted the Infectious Diseases Protection Law which provides for a range of anti-epidemic measures, but in its version in force in March it also prescribed that application of those measures could be imposed only on the basis of a decision of the Minister of Health and not the Headquarters.

The Croatian Constitutional Court expressed its position regarding special anti­epidemic measures in a series of decisions delivered on 14 September 2020. I should immediately stress that the most important outcome thereof was the Court’s valida­tion of all the Headquarters’ decisions with just one exception. Moreover, the Court ruled that it had no constitutional power to review the decision of the Parliament to act within the rules provided for normal situations (Article 16 of the Constitution), thus excluding itself from pronouncing whether a state of severe natural disaster (Article 17 of the Constitution) should have been proclaimed regardless.

Among those several decisions of the Court, the prominent place belongs to the one in which it dealt with constitutionality of amendments to the Law on the Civil

Activism of the Croatian Constitutional Court 197 Protection System and the Infectious Diseases Protection Law.^[571] I will now present those two combined cases.^[572]

The arguments submitted by the applicants who sought the constitutional review of the two laws may be summarised in a few points. First, they claimed that the Parlia­ment erred in deciding to amend the laws through an ordinary procedure, without first proclaiming the state of a severe natural disaster, as foreseen in Article 17 of the Constitution. Moreover, that meant that the amendments to two laws, affecting con­stitutionally protected rights and freedoms, should have been enacted with the two- thirds majority of all parliamentary representatives.

As to the crucial issue in the whole case - the one related to the necessity of applying Article 17 of the Constitution - the Court stressed that the Parliament had two options to regulate restrictions on fundamental rights and freedoms. The first was to enact new laws through an ordinary procedure foreseen for ordinary times, with the majority of all representatives,^[573] while the second was to use Article 17 and a two-thirds majority. The Court, however, expressly said that the decision as to which of those two models should be applied in the present case belonged exclusively to the Parliament and not to the Court. The Court retained only its power to review con­stitutionality of particular decisions restricting rights and freedoms, even if they would be enacted within the realm of Article 17, should that have been the case.^[574]

As to the issue of legality of the Headquarters, the Court concluded that said body was properly empowered to act in new circumstances through both Article 22.a and Article 47. Moreover, the Court added that the pandemic/epidemic of Covid-19 did constitute ‘specific circumstances’ that endangered the health of the population in terms of Article 22.a and that, therefore, by enacting those amend­ments the Parliament actually constructed a legal framework in which both the Minister of Health and the Headquarters had powers to act.¹² Additionally, the Court stated that the specific measures enacted as a result of specific circumstances could last only for the duration of the pandemic.

In relation to the issue of control, the Court said that the Headquarters was undoubtedly an executive body and that it was under direct supervision of the Government, which, in turn, was itself under control of the Parliament and the Constitutional Court. This also meant that, according to the Court, there was always a possibility that the Parliament could ask for a report from the Govern­ment on the application of concrete measures and on the overall work of the Headquarters. Concrete measures of the Headquarters were also firmly defined as acts falling under both judicial and constitutional review.

The issue of a legitimate aim in this particular case was solved easily by relying on the interest of protection of health, but the Court clarified that it could not here go into reviewing the elements of proportionality and necessity, thus saving this for cases in which it would deal precisely with concrete anti-epidemic measures.

In the most striking section of this part of the Decision - the one related to the issue of retroactivity - the Court concluded that this problem actually did not exist because the Headquarters from the beginning had legal grounds for acting, not on basis of Article 47, but rather through Article 22.a. According to the Court, Article 47 thus did not have a retroactive effect, but rather it only clarified powers already conferred to the Headquarters by Article 22.a.

The three dissenters in this case offered a range of counter-arguments to the majority opinion.¹³

amendments, the Government was empowered to postpone local elections, which it actually did, in two municipalities. Although those specific elections were later held, the three dissenting judges pointed both to the necessity of applying Article 17 of the Constitution and to the fact that the contested Law, as abstractly written, actually allowed for an indeterminate postponement of local elections in cases of ‘specific cir­cumstances’. Here also, the formulation of those circumstances in said law was almost identical to the one I already described in reference to Article 22.a of the Law on the Civil Protection System.

12 In its submission to the Court, the Government firmly claimed that the circumstances did not constitute a ‘natural disaster’ but rather an unpredicted state of special cir­cumstances that in their totality were endangering the lives and health of citizens in the entire territory of the State. To this it added that the state for the first time was faced with a new legal situation, unpredicted in the existing law and explicitly denied relevance of Article 17 of the Constitution. See: Decision of the Croatian Constitu­tional Court: U-I-1372/2020, 14 September 2020.

13 The three dissenting judges were AndrejAbramovic, Lovorka Kusan and Goran Sela- nec. As to the merits, judges Branko Brkic and Rajko Mlinaric, in their concurring

Firstly, they posited that there was no possibility to claim that one specific situation may be solved by choosing between two (competing) constitutional norms (Article 16 or Article 17 of the Constitution). In other words, each case should be dealt with by exclusively applying the relevant norm. Here the dissenters also warned that the optional approach actually contained a major advantage for the Government because it was obvious that no parliamentary majority, under such a scheme, would ever agree to binding itself to the two-thirds requirement if it could operate under a simple (absolute) majority. Additionally, they stressed that, for the sake of legal certainty, the state of a severe natural disaster should have been proclaimed. This meant that emergency as such finds its basis in the facts of the case itself, and not in the legal act of proclamation,¹⁴ the proof of which was also that the ‘special circumstances’, as defined by the Law on the Civil Protection System, indeed were used to legally validate the actions of the Head­quarters. The dissenters also insisted that the very existence of a state of emer­gency was a fact arising from the global situation surrounding Covid-19. To further strengthen the same line of reasoning, they focused on the specific defini­tion contained in Article 22.a of the Law on the Civil Protection System and concluded that it perfectly fits the constitutional notion of a state of ‘severe natural disaster’ itself.

On the sub-issue of the consequences arising from the states of emergency, the dissenters stressed that there existed a crucial legal difference between laws reserved for ordinary times and those meant to regulate crises (different parlia­mentary majorities required for their adoption). Consequently, from the strict legal point of view, that meant that an ordinary majority of representatives could not decide that the two-thirds of votes was actually not necessary. Moreover, for the dissenters, it was exactly the Court’s duty to verify if the proper procedure of enactment of laws was followed.

opinions stated that activation of Article 17 of the Constitution would not benefit the interest of expediency and efficiency of indispensable safety measures. Judge Brkic even stated that Article 17 could not be activated here because the case did not involve ‘state of emergency’ (‘severe natural disaster’ are the exact words in the Con­stitution) but rather ‘obviously a state that will last, become regular, the one with which the whole global population, including the Republic of Croatia, is faced and in which it will live in the future’. See: Decision of the Croatian Constitutional Court: U- I-1372/2020, 14 September 2020 (concurring opinions of Judges R. Mlinaric and B. Brkic).

14 The Constitutional Court forwarded the same argument, regarding the act of procla­mation of an emergency, already in its 1992 decision. See: Decision of the Croatian Constitutional Court: U-I-179/1991, 24 June 1992. The dissenters made another parallel here, the one with the 1990s war, which itself was never declared. The US Supreme Court offered the same argument in the Prize cases: ‘This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganised insurrections. However long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.’ See: Prize Cases, 67 U.S. 668, 669 (1862).

The dissenters also criticised arguments, pursued in public debates sur­rounding the situation, that a proper and full parliamentary control over special measure was not possible, pointing to practices in other states that proved otherwise. To this they added two additional reasons for the claim that pro­clamation of an emergency was actually beneficial for society: first, because both the European Convention on Human Rights and the International Covenant on Civil and Political Rights asked for temporary application of emergency measures; and, second, because the proportionality principle con­tained in Article 17 of the Croatian Constitution actually imposed a lower burden of proof for necessity than its counterpart in Article 16.^[575] [576] For all those reasons they concluded that restrictions of rights and freedoms should have been decided by the two-thirds majority in the Parliament, thus according to the prescription of Article 17 of the Constitution.

What then follows in the dissenting opinion is a rather heavy criticism on two special points: legal status of the Headquarters and retroactivity of the amend­ment to the Infectious Diseases Protection Law. As to the first point, the dis­senters concluded that, due to its composition, its powers and the way it is controlled, the Headquarters truly represents a ‘Clone of the Government’. In fact, they stressed, the Headquarters was made of members elected by the Gov­ernment according to political criteria, was led by the Minister of Interior and included most of the ministers of the Government, with only a few exceptions. This way, it was actually a political body, a fact that totally undermined its independence from the Government and overturned the desired purpose of its functioning. In other words, instead of having in it experts who would advise relevant ministers on how to deal with the crisis, it was the ministries who dele­gated their representatives in the Headquarters so that it could more easily do the job. Moreover, judicial oversight of the Headquarters was here also put in question, not only because the Constitutional Court was in heavy delay in deli­vering its review, but also because ordinary courts were, during the pandemic and according to instructions of the Headquarters itself, mainly out of action.¹ As to the powers of the Headquarters, the dissenters criticised the overall and temporally indeterminate ‘delegation’ of powers made to it through Article 22.a of the Law on the Civil Protection System, specifically the prerogative to render

Activism of the Croatian Constitutional Court 201 ‘decisions and guidelines’.¹⁷ In their view, this resulted in the Headquarters becoming a ‘parallel legislator headed by the Minister of Interior’. Finally, they found inadmissible a solution according to which the Headquarters was ‘alleg­edly’ empowered to act through Article 22.a along with the Minister of Health, who could act on the basis of Article 47 of the Infectious Diseases Protection Law. For those reasons, the dissenters concluded that Article 22.a was uncon­stitutional. And on the second point, the dissenters rejected that there was no issue of retroactivity of Article 47 in this case: for them, retroactivity clearly did exist and should have been justified. Since it was not justified, the dissenters pointed to unconstitutionality in this respect as well.¹

Apart from the decisions made in abstract constitutional review of the laws I already described, the Constitutional Court also reviewed several decisions of the Headquarters imposing concrete anti-epidemic measures. Those may be sum­marised in three separate categories.

In three cases, the Court rejected going into merits because the applicants, according to the Court, did not further relevant reasons justifying their claims and because the contested decisions of the Headquarters ceased to apply before the Court delivered its opinions in mid-September.¹⁹ In the first case, the Court

17 In a related case delivered the same day, the majority in the Constitutional Court also concluded that through the contested law the Headquarters acquired general power to enact special measures during ‘unforeseen special circumstances that could not have been counteracted, and which were endangering the lives and health of the people’. In this case, the Court dealt with the power of the Headquarters to regulate working hours in catering businesses during the pandemic. See: Decision of the Croatian Constitutional Court: U-I-2162/2020, 14 September 2020. The same dissenters objected to this point in this case as well.

18 Decision of the Croatian Constitutional Court: U-I-1372/2020, 14 September 2020 (A. Abramovic, L. Kusan and G. Selanec, dissenting). In a separate dissent, the same judges objected that the Court should have taken the whole case into docket on its own motion, that it should have done it months before and that separate motions for review of constitutionality should have been distributed equally among several judges, instead of having been given to only one rapporteur. Their objections become even more serious with their statement that they received the first draft of the opinion from the judge rapporteur only on 3 September, thus 11 days before the Court published its decisions. Additionally, they complained that a public hearing, which they advo­cated for, was not held. See: Decision of the Croatian Constitutional Court: U-I- 1372/2020, 14 September 2020 (L. Kusan, A. Abramovic and G. Selanec, dissent­ing). In yet the third joined dissent, they heavily criticised the whole legal model upon which the Headquarters was based, especially the fact that by it the Headquarters, unlike the Minister of Health, was not directly accountable to the Parliament. They also objected on several other grounds, including that it remained unclear whether the Headquarters had a timely limited mandate to act and by which exact procedure it was acting. See: Decision of the Croatian Constitutional Court: U-I-1372/2020, 14 Sep­tember 2020 (G. Selanec, L. Kusan and A. Abramovic, dissenting).

19 This, however, provoked the three dissenting judges to object to the majority rea­soning on three grounds: first, that it was not true that the applicants in those cases had not submitted relevant reasons in support of their claims on constitutionality of contested measures; second, that it was not the fault of the applicants that the Con­stitutional Court waited several months to deliver its opinions; and third, that the

concluded that the ban on crossing the state borders was both appropriate and necessary since most of the European countries, from the beginning of March until the beginning of May, applied similar measures with the objective of pre­venting the uncontrolled spread of the virus. The Court also added that concrete damages that might have been inflicted upon the applicants should be solved in individual judicial proceedings, including the constitutional complaint, and not in an abstract review before the Constitutional Court.²⁰ In the second case, the Court concluded the same, this time in reference to the Headquarters’ decision that prohibited leaving the place of residence.²¹ In the third case within this cate­gory, the Court rejected the applicants’ motion for constitutional review in refer­ence to several decisions restricting public assemblies, work of shops and markets, provision of some other services, sport and cultural activities, as well as cemetery 22

ceremonies.

On the other hand, the Court did undertake a substantial review of the Head­quarters’ decision on the duty to wear face protection masks, from the point of Article 35 of the Constitution, guaranteeing personal and family life, dignity, reputation and honour. In the Court’s view, the article implied positive obligations on the state in its efforts to protect health and the conclusion was that the measure in the existing cir­cumstances was both rational and necessary. This way, the Court accepted justifica­tions of the Government thereof which claimed that it acted on the basis of both the recommendations of various expert groups, including the World Health Organiza­tion, and on the basis of several scientific researches.²³

Court should have applied its own power to review the decisions notwithstanding the fact that those decisions meanwhile ceased to apply. See: Decisions of the Croatian Constitutional Court: U-II-1312/2020, U-II-2027/2020, U-II-1373/2020, 14 September 2020 (A. Abramovic, L. Kusan and G. Selanec, dissenting).

20 Decisions of the Croatian Constitutional Court: U-II-2027/2020, 14 September 2020. The applicant in this case stressed that the exclusions to the decision did not allow travelling for specific purposes, such as in case of seeking a job in another country or for medical interventions or for performing parental duties.

21 Decisions of the Croatian Constitutional Court: U-II-1312/2020, 14 September 2020. In this case the applicants argued that the decision of the Headquarters infrin­ged upon the freedom of movement, that it discriminated against people in small municipalities who had to travel in order to purchase food and medicine, that it did not precisely foresee the time period of its application and that it should have been enacted by the Parliament, according to Article 17 of the Constitution.

22 Decisions of the Croatian Constitutional Court: U-II-1373/2020, 14 September 2020. The Court thus rejected as ill-founded the applicants’ arguments that the imposed measures infringed the constitutional principle of equality, entrepreneurial freedoms, freedom of movement, right to work and freedom of assembly.

23 Decision of the Croatian Constitutional Court: U-II-3170/2020, 14 September 2020. The three dissenting judges, however, pointed out that there undoubtedly existed an intrusion into the personal freedom, which should have been properly jus­tified by the Government. Taking into account the fact that the duty to wear masks was imposed only in June 2020, thus months after the actual outbreak of the pan­demic, the dissenters objected on the ground of both the rational basis for the mea­sure and its necessity. See: Decisions of the Croatian Constitutional Court: U-II-

Finally, the Court struck down the decision of the Headquarters, which pro­hibited work of shops, markets and similar businesses on Sundays exclusively. The contested measure was part of the ‘relaxation’ strategy of the Government and was enacted after a wide March ‘lockdown’ already ended. Taking into consideration that shops did work on Sundays even during the lockdown and that the Govern­ment in its submission firmly claimed that for shops the most frequent day of the week was actually Friday, the Court concluded that the measure breached the principle of proportionality.²⁴

I conclude this overview of the Court’s case law with an additional case in which it unanimously struck down the standing orders of the Parliament that regulated its operation in circumstances of epidemic. In short, the challenged section reduced the number of representatives allowed to be present in the par­liamentary hall during debates, time of their expositions and number of their replies. At the same time, it allowed for voting of all representatives by electronic means or from different rooms apart from the main hall. Parliamentary committees were also allowed to use audio or video conference means of communication. The Court concluded that there obviously existed appropriate alternative means for organising sessions of the Parliament, which would not infringe rights and duties of representatives based on their free mandate.²⁵

In one specific aspect, however, the Court remained completely silent. It did not pronounce itself on the fact that the challenged section of the standing orders prescribed that the decision to put the whole Parliament into the reduced mode of operation rested with the presidency of the Parliament alone. Moreover, the pre­sidency could ‘determine’ this special mode of work only on the basis of a decision already issued by the body declaring the epidemic, i.e. the Government. Having in mind that by this scheme the presidency, counting only six persons and, of course, reflecting a significantly reduced parliamentary majority, had the exclusive power of deciding how long this mode of operation for the rest of 151 parliamentarians

3170/2020, 14 September 2020 (A. Abramovic, L. Kusan and G. Selanec, dissenting).

24 Decision of the Croatian Constitutional Court: U-II-2379/2020, 14 September 2020. In one dissent, Judge D. Mlakar argued that the Court should have rejected the case as it did for the first category of cases. In another, Judge M. Sumanovic claimed that the Court’s decision to take the case into consideration represented an ungroun­ded judicial activism, taking into account that no specific motion for review was sent to it. On the merits, Sumanovic advocated a relaxed standard of review in reference to proportionality. In their dissents, however, both judges, although not willing to invoke application of Article 17 of the Constitution, expressly stated that the Covid-19 situation amounted to ‘health risk without a precedent’ (M. Sumanovic) and ‘emer­gency situation’ (D. Mlakar). On the other hand, three judges (G. Selanec, L. Kusan and A. Abramovic) concurred, stressing that the Court should have applied Article 17 of the Constitution in the first place, and since it did not, it gravely erred in inter­preting the elements of appropriateness of the measure and its necessity. See: Decision of the Croatian Constitutional Court: U-II-2379/2020, 14 September 2020 (G. Selanec, L. Kusan and A. Abramovic, concurring).

25 Decision of the Croatian Constitutional Court: U-I-4208/2020, 20 October 2020. would last, I strongly believe that this also represented an obvious example of the breach of the separation of powers principle.

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