CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA
Zagreb
In accordance with Article 15, paragraph 1 of the Costitutional Law on the
Constitutional Court of the Republic of Croatia (Official Gazette of the RC, No. 13/91),
we are lodging this
SUBMISSION
in order to challenge the constitutionality and lawfulness of Compensation Act dealing
with the property seized during the Communist rule ( Official Gazette No.92, from October
30, 1998 ), on grounds of this Act's disagreement with the following Articles:
- Article 3 of the Constitution of the Republic of Croatia whereby the highest values of
the constitutional order in the Republic of Croatia are equality, human rights,
inviolability of property and rule of law;
- Article 16 of the Constitution of the Republic of Croatia which claims that freedom and
rights are to be limited only to protect freedom and rights of other people, as well as
the juridical system, public morals and health;
- Article 41 , paragraph 2 of the Constitution of the Republic of Croatia whereby it is
envisaged that religious communities ere entitled to the State's protection and support;
- Article 48 of the Constitution of the Republic of Croatia which guarantees the
protection of property and inheritance rights;
- Article 49 of the Constitution of the Republic of Croatia whereby it is guaranteed that
all entrepreneurs are to have equal legal status on the market and the rights gained due
to capital investment;
- Article 50 of the Constitution of the Republic of Croatia which says that in the
interest of the Republic it is possible by means of a law to impose restrictions on
property or seize it, offering an adeqate compensation for its market value.
ARGUMENTATION
In order to support the above-mentioned inconsistencies of Compensation Act with the
property seized during the Yugoslav Communist rule (Compensation Act further on) with the
stated provisions of the Constitution of the Republic, except for the disagreement with
the provision of Article 41, paragraph 2 of the Constitution,
the submitter of this proposal would also like to quote the arguments listed in the
submissions lodged by Matija Očić, attorney- at-law, and SUVLAH-Varaždin branch.
As regards the violation of Article 41, paragraph 2 of the Constitution of the Republic
of Croatia we are offering the following explanation:
The provisions of Articles 58 and 59 of Compensation Act specify the maximum
compensation and the way how to determine it. According to the chart given in Article 59,
which is not calculated with exactitude, it turns out that one part of the compensation
for the property seized will be in inverse proportion to its value in other words, the
owner who was stripped of the property of a lower value will proportionally get more in
damages than the owner who lost a great deal of property. We would especially like to
emphasize the fact that the chart in Article 59 under coloumn VII specifies the
compensation for the property whose value exceeds 75,000,000 Kn to be in percentage terms,
from 4.93 % to 0 %, which means that, in practice, it is possible for the former owner
whose property exceeds the stated amount not to get any compensation at all
(mathematically, each big number multiplied by zero equals zero). This only proves with
how much imprecision, the superficiality and lack of explicitness the law has been edited.
Not only has the principle of inviolability of property been breached, but within the
category of the former owner, Compensation Act has also violated the principle of equality
of all citizens. With their content the above-mentioned provisions also violate the
provision of Article 50 of the Constitution which enables the limitation of seizure of
property only with the compensation of its market value.
The cited provisions of Article 58 and 59 of Compensation Act that implicitly establish
the principle according to which the amount of compensation is to be inversely
proportionate to the property seized also violate the provision of Article 41, paragraph 2
of the Constitution whereby all religious communities are free, accordance with the law,
to publicly perform their services, to set up schools and universities, as well as other
institutes, social and charitable institutions and to manage them. In their activities
they are entitled to the protection and support of the state. Judging by the data
available, the submitter of this proposal will be particularly affected by the mentioned
provision of Compensation Act, together with other religious communities, since most of
the property seized belonged to them. Thus the enforcement of the quoted provisions will
in particular damage religious communities because for a relatively large property taken
away from them they will get a low compensation. Not only had the state avoided offering a
suitable protection and support to religious communities, but it has done quite the
opposite since the property in their ownership primarily serves for the performance of the
religious services listed in the provision of Article 41, paragraph 2 of the Constitution.
Therefore, in addition to the violation of the principle of equality with regard to
religious communities, their activities that are guaranteed by the Constitution may also
be rendered impossible. With the mentioned provision, the state has committed itself to
offering religious communities its special protection and support. However, imposing
restrictions on property rights and inadequate compensation cannot be considered to be
protection and support since it is widely known that the activities of religious
communities are funded form the property in their onwership. To sum up, instead of
coordinating the provision of Compensation Act with the highest constitutional value, such
as equality of all legal entities before the law and in inviolability of property, the
state has, by breaching all those principles, also violated the mentioned provision of
Article 41, paragraph 2 of the Constitution of the Republic of Croatia.
Due to above-listed arguments, we are proposing to the Constitutional Court of the
Republic of Croatia to challenge the constitutionality of Compensation Act dealing with
the property seized during Yugoslave Communist rule and after taking necessary
proceedings, pass a judgement by which the challenged law will be delclared null and void,
and the provisions of Article 58 and 59 in particular.
