In September 2021, a workshop was organised in which the contributors to Volume 2 on Article 47 of the EU Charter and effective judicial protection presented their findings from the research of national case law. The contributors were asked to identify a perspective or perspectives in their national legal systems when it comes to the principle of effective judicial protection and Article 47 of the Charter. From the research I conducted on the judicial application of Article 47 of the Charter in Croatia, I found no perspective at all – as surprising as this might be.

In this piece, I reflect on this finding and discuss the reasons behind it. The following issues will be addressed: (i) numbers, i.e. the (in)frequency with which Croatian courts refer to Article 47 of the Charter; (ii) their style of reasoning when they propose a particular understanding of the meaning or scope of the legal text in general; (iii) a lack of precision when they invoke the effective judicial protection found in different legal sources, i.e. the national constitution, ECHR, and the Charter; and (iv) their hesitancy to refer questions of interpretation of EU law (including the Charter) for a preliminary ruling to the Court of Justice of the EU.

For each year, one reference (almost)

A search for the references to Article 47 of the Charter in three databases (1, 2, 3) of the case law of Croatian courts – Constitutional court, Supreme court, and ordinary (municipal and county) courts and specialised (administrative, commercial, misdemeanour) courts – in the period between 2013 (when Croatia joined the EU) and 2021 yielded limited results. There were only around fifty decisions that mentioned ‘the Charter’ in general. Of them, ten mentioned Article 47 specifically. Ten references in more than eight years mean that Croatian courts are not particularly enthusiastic about using this provision. Although in such a small sample size it is difficult to make (m)any observations, two things could be singled out. First, almost all references came from the two highest courts in the country, i.e., the Constitutional court and the Supreme court. Given their institutional position and respective tasks in the national constitutional order – the former safeguarding the constitution, the latter ensuring the uniformity of law – it is unsurprising that they will be the ones making the first attempts at developing doctrines that regulate the status of Article 47 in Croatian law. Second, these references were mainly related to those areas of law extensively regulated at the EU level, such as public procurement, asylum and migration, and credit consumer protection. Hence, the application of Article 47 had no impact on national law beyond the limits of EU law.

Underdeveloped reasoning, impersonal rulings, and instrumentalised law

Like courts in other countries of civil law tradition in continental Europe, Croatian courts champion a very formalistic, magisterial, and deductive style of reasoning, the Constitutional court occasionally being an exception. Often their decisions are very condensed, with a rigid and circular structure. They are mostly concentrated on the discussion of facts and whether they are within the scope of some legal text, whereas the relevant legal texts are merely listed, and their meaning, context, and purposes are taken for granted. So, the questions of interpretation of applicable law are largely ignored. In some cases, it is difficult to figure out what exactly are the sources of national law, let alone EU law, that Croatian courts are relying on.

On top of that, the style of reasoning of Croatian courts and their practice of justifying their decisions is to a significant degree influenced by the remnants of the former socialist regime. This is reflected in two patterns of behaviour. First is that courts try not to expose themselves too much to the public. The more obscure and cryptic their decisions are, the less political backlash they can cause. So, Croatian judges seem to be the most comfortable when they appear as bureaucrats or administrative officials who defer to other branches of the government in making important public policy decisions; this habit (or pretence) of deference is one of the key traits of the judiciary’s image originally being developed vis-à-vis the communist party. Second, courts know very well how to instrumentalise the law for different purposes, including flying under the radar in the political arena. So, whenever their decisions are not threatened by the Charter or EU law more generally, Croatian courts will have no problem engaging with it. But when EU law threatens to challenge their reasoning or conclusions, they will simply ignore it without bothering to explain why.

‘Tomato [tomayto], tomato [tomahto]’: no difference between various sources of law

In the rare decisions in which Croatian courts did explicitly cite Article 47, another thing can be noticed. In some of them, they made mechanical references to this provision of the Charter, without differentiating it from the equivalent provisions found in other human rights catalogues. One could thus find the Charter rights lumped together with the relevant provisions of the ECHR (Articles 6 and 13) or the Croatian constitution (the right to appeal from Article 18; the right to a fair trial from Article 29), but with no or only little superficial explanation as to which standard of fundamental rights protection applies and why. This happens even when the matter is clearly within the scope of application of EU law. An illustrative example is the Supreme court’s ruling from the early days of the EU membership (Order No Kž-eun 5/14-4, Kž-eun 14/14-4 of 6 March 2014 concerning execution of a European arrest warrant issued for Zdravko Mustač). That court was dealing with a dispute involving the national implementation of the EU secondary legislation regulating criminal proceedings, which safeguarded the victim’s right to appeal. After mentioning briefly in one place all three human rights catalogues, the Supreme court went on to elaborate in a bit more detail on the ECHR perspective only. Interestingly, the Supreme court came to the ECHR via EU law. It noted that the relevant EU directives refer to Article 6 TEU, which mentions the Convention as an inspiration for general principles of EU law, thus allegedly justifying the Supreme court’s engagement with the Convention’s rights.

The failure to differentiate these sources of law usually comes at the expense of Article 47 of the Charter. Indeed, despite only several examples, Croatian courts seem to have a clear preference for ECHR rights and constitutional rights. The ECHR is considered as having ‘quasi-constitutional status’. High courts, especially the Constitutional court and the Supreme court, refer to it very often. Lower courts have a practice of citing the rulings of higher courts word for word. As a result, there are many more references to the Convention than to the Charter overall. In practical terms, this might mean that there is no gap in legal protection if the level of protection of fundamental rights in the ECHR and the Charter is by and large complementary. Of course, the question then is what is the added value of the Charter, including Article 47? And further, given that the Charter allows for a greater level of protection than the ECHR, as provided in Article 52(3), its potential remains untapped.

This preference of Croatian courts for the ECHR rights over Article 47 of the Charter is exemplified in two recent preliminary references (Case C-657/18 HRT ECLI:EU:C:2019:304; Joined Cases C‑267/19 and C‑323/19 PARKING and Interplastics ECLI:EU:C:2020:351). In them, lower (municipal and commercial) courts referred to the Court of Justice questions of interpretation of Article 6 ECHR instead of Article 47 of the Charter. In its reply, the Court had to clarify that it can interpret only the Charter and not ECHR in the preliminary ruling procedure. It did, however, add that the two rights match in essence, thereby excusing to some extent the referring courts’ slip. But at least, these two courts asked the question, and hopefully learned something about Article 47 and the Charter in general. This is not what higher courts in Croatia seem willing to do, which might be explained by their indifference towards EU law.

Those who ask shall receive, those who do not ask… may deceive?

Croatian courts of last instance for the most part seem unwilling to use the preliminary ruling procedure, often without good reasons. This is although, like in several other Member States, the Constitutional court established a remedy for the unsubstantiated refusal to make a reference, considering it a violation of the right to a fair trial (Decision No U-III-1966/2016 of 6 December 2016 on the constitutional complaint of Rafo Alandžak and Others; Decision No U-III-2521/2015 et al. of 13 December 2016 on the constitutional complaint of OTP Bank Croatia and Others). In a ruling that predates Consorzio Italian Management, the Constitutional court concluded that the requirement to justify non-referrals was grounded in the rights safeguarded by the Croatian constitution and the ECHR, citing the relevant case law of the Strasbourg court.

When reviewing decisions of Croatian courts of last instance not to refer, the Constitutional court was initially merely checking whether any reasons have been offered. Recently, it started moving beyond a formal check and assessing the quality of stated reasons. At least in some cases (e.g. Decision No U-III-4150/2019 et al. of 3 February 2021 on the constitutional complaint of Raiffeisenbank Austria and Others), the Constitutional court’s findings about the meaning or scope of EU law or the inferences from the case law of the Court of Justice were rather questionable. And yet, the Constitutional court firmly refuses to make a reference for a preliminary ruling, without proper justification. In those situations, the Constitutional court takes it upon itself to issue the authoritative interpretation of applicable EU law, circumventing the Court of Justice and its role envisaged in the EU Treaties.

Regarding Article 47 of the Charter more specifically, the Constitutional court at times takes it, alongside relevant case law of the Court of Justice, as a yardstick when reviewing the constitutionality of the national legislation implementing EU law (Decision No U-I-1007/2012 et al. of 24 June 2020 on the constitutionality of Law on Foreigners and Law on Security Checks). In this context, the Constitutional court made a potentially far-reaching remark. Namely, when assessing whether a single instance of judicial review of administrative proceedings guarantees effective legal protection, the Constitutional court declared that, since the Croatian constitution required a higher standard of protection of the right to an effective legal remedy and the right to appeal than the Charter, it would be obliged to pursue the national standard (Decision No U-I-2911/2017 of 5 February 2019 on the constitutionality of Public Procurement Law). Commentators saw it as a possible pushback against the Melloni doctrine of the Court of Justice. But on that occasion, the Constitutional court managed to interpret the constitutional right in conformity with Article 47 of the Charter and ruled that it does not always require multiple instances of judicial review. In that way, conflict was evaded. The question is for how long, given the apparent ‘national constitution first’ attitude of the Constitutional court demonstrated in earlier rulings (Decision No U-VIIR-1159/2015 of 8 April 2015 on the constitutionality of referendum on ‘outsourcing’ in the public sector; Decision No U-VIIR-1158/2015 of 21 April 2015 on the constitutionality of referendum on the monetisation of public highways).

No perspective?

Let us go over the main findings. Only a few decisions of Croatian courts that refer to Article 47 of the Charter; a style of reasoning which can conceal sources of law that influence the outcomes of adjudication; a practice of ignoring legal arguments that may challenge judicial reasoning or conclusions; a failure to differentiate rights to a fair trial and effective judicial protection contained in different human rights catalogues; a preference for the ECHR and the national constitution over the Charter; a seemingly ad hoc application of Article 47, which depends on a pure chance or the combination of a ‘low threat’ environment and a knowledgeable deciding judge or judge rapporteur with a positive attitude to EU law; in general, half-hearted approach to the dialogue with the Court of Justice about the matters of interpretation of EU law; and fragments of a defensive judicial doctrine on the status of Article 47 – or EU law as such – in the national legal system.

These were the reasons that led me to conclude that the impact of Article 47 on the Croatian legal system was insignificant. They may also hint at systemic issues with the reception of EU law in Croatia, but this is something for another discussion. The main causes of this state of affairs could be individual and institutional. Individual causes would concern a lack of knowledge, education about, and appreciation of EU law, including the Charter; not only among Croatian judges, most of which were educated and entered the service before the EU membership but also among legal practitioners. Institutional causes would concern inexistent, understaffed, or unused research services that assist Croatian courts with EU law expertise.

In any event, my initial conclusion was that in Croatia there was no perspective on Article 47 of the Charter. Now I guess that it could perhaps be argued that there is some kind of perspective, only it is negative, unclear or blurred, or still nascent. Would such a recharacterization change anything? Would it read too much into otherwise plainly undeveloped case law and doctrine? At the moment I am unsure, but time will certainly tell.

Posted by Davor Petrić, Lecturer and Postdoctoral research at the University of Zagreb (Croatia).

Suggested citation: D. Petrić, ‘Article 47 of the Charter in Croatia: No perspective at all?’ REALaw.blog available at https://realaw.blog/?p=2608