Venice Commission - Observatory on emergency situations

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Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).

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  Croatia

16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)

On the basis of the recommendation of the Minister of Justice and the recommendation of the head of the Supreme court of the Republic of Croatia, hearings in individual cases that were not urgent, that were not „older cases“, nor were cases in which proceedings were to be ended soon, were postponed in the period from 14 March to 14 May 2020 for an indefinite period of time, leaving each individual court to reschedule them for the time they considered possible. Obligation of adherence to special measures of reduced physical contact, physical distance and possibility of work of courts in morning and afternoon shifts was in force.

The Constitutional Court examined cases related to the measures introduced during the crisis. Thus, the Constitutional Court of the Republic of Croatia rendered on 3 July 2020 decision no. U-VII-2980/2020. It held that from the perspective of Article 16 of the Constitution, it is not constitutionally and legally unacceptable to exclude the possibility of citizens who have been diagnosed with COVID 19, and are thus in isolation, and also citizens who are in self-isolation due to the suspicion that they have an infectious disease, to come in person to a polling station.

However, citizens who have been diagnosed with COVID 19 as well as all others who, for other prescribed reasons, do not come to polling stations but may vote outside polling stations (Article 83.2–83.6 of the Act on t he Election of Representatives to the Croatian Parliament) – should have the possibility to vote outside polling stations, under conditions adjusted to the nature of the potential risk of infection and aligned with requirements regarding the health safety and protection of other participants in the election process.

Therefore, the State Election Commission must secure the possibility to exercise the voting right for this category of voters, by adequately adjusting the rules on voting outside polling stations in cooperation with the Croatian Institute of Public Health and by taking into account the protection of the health of all participants in the election process.

17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?

The elections of representatives to the Croatian Parliament were held in July 2020, in accordance with constitutional and legislative time limits. Article 73, paragraph (1) of the Croatian Constitution stipulates that representatives to the Croatian Parliament are elected for a term of four years. Article 74, paragraph (1) of the Constitution stipulates that the elections of representatives to the Croatian Parliament are to be held no later than 60 days from the expiry of the term or the dissolution of the Croatian Parliament. Under Article 78, paragraph (1) of the Constitution, the Croatian Parliament may be dissolved in order to call early elections, if the majority of all representatives votes in favour of this.
(The parliamentary term of the representatives in the previous (ninth) convocation of the Croatian Parliament started on 14 October 2016, when the Parliament was constituted.) Pursuant to Article 78, paragraph (1) of the Constitution, at the sitting of 18 May 2020, the Croatian Parliament adopted the Decision on the Dissolution of the Croatian Parliament (Official Gazette “Narodne novine” No. 58/20), which entered into force on the day of its adoption.
Under Article 98, paragraph (1), subparagraph (1) of the Constitution, the President of the Republic calls elections for the Croatian Parliament, and Article 5, paragraph (4) of the Act on Elections of Representatives to the Croatian Parliament (OG 116/99, 109/00, 53/03, 69/03, 44/06, 19/07, 20/09, 145/10, 24/11, 93/11, 120/11, 19/15, 104/15 and 98/19) stipulates that there is a minimum period of 30 days from the date of entry into force of the decision on calling elections to the election day. The President of the Republic of Croatia adopted the Decision on Calling Elections of the Representatives to the Croatian Parliament (OG 62/20) on 20 May 2020, and it entered into force on 2 June 2020. It was stipulated in the Decision that elections would be held at polling stations in Croatia on Sunday, 5 July 2020, and at polling places in the premises of diplomatic and consular offices of the Republic of Croatia on Saturday, 4 July 2020 and Sunday, 5 July 2020, and the elections took place on the days stipulated.
As soon as the parliamentary elections were called, the State Electoral Commission of the Republic of Croatia (hereinafter: SEC) started communicating with the Croatian Institute for Public Health (hereinafter: CIPH) in order to start preparing recommendations and instructions for holding elections in a safe manner in times of epidemic. In such exceptional circumstances, special account was taken of the following: providing sufficient protective equipment and prescribing sufficient protective measures for electoral bodies; protecting election participants (candidates), volunteers and voters during the process of collecting voters’ signatures and protecting election participants, volunteers, voters and other participants during election gatherings. Moreover, special focus was on securing safe voting on the election day, especially considering the fact that there is no postal voting or internet voting, so the only way for voters to exercise their voting right is at polling station or, in specific situations prescribed by the Act on Elections of Representatives to the Croatian Parliament and the SEC’s Mandatory Instructions, in their homes.
During the preparation of instructions for the election day, special account was taken of the following: providing sufficient protective equipment and prescribing measures for polling station committees and voters that will reduce the risk of infection at polling stations, especially when it comes to polling stations in social welfare institutions and the voting of voters who are in self-isolation or COVID-19 positive.
The CIPH, in cooperation with the SEC, issued three recommendations: Securing epidemiological measures during the election process – Work of electoral bodies; Securing epidemiological measures during the election process – Collection of voters’ signatures of support, and Recommendations for preventing COVID-19 infection during election gatherings.
The SEC, in cooperation with the CIPH, issued two sets of technical instructions: Technical instructions – voting on the election day and securing epidemiological measures to protect all participants at polling stations, and Technical instructions – voting on the election day and securing epidemiological measures to protect all participants at polling stations in social welfare institutions.
It was not necessary to amend electoral legislation in order to issue the above recommendations and technical instructions.
The voter turnout was 46.90%. By comparison, the turnout in 2016 parliamentary elections was 52.90%, and in 2015 parliamentary elections it was 60.82%.

18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.

In accordance with the Decision of the Government of Croatia of 12 March 2020 on calling early elections for the City Council of the City of Orahovica and the Municipal Council of the Municipality of Otok, early elections were scheduled for 19 April 2020.
The reason for early elections was the dissolution of the Orahovica City Council and the Otok Municipal Council due to the fact that they had failed to adopt the 2020 Budget or a Decision on temporary financing within the legally stipulated period.

Since after the early elections had been called, special circumstances caused by the COVID-19 epidemic emerged, in which it was justified to postpone holding early elections, it was necessary to establish a legal basis for the Government to decide on holding early elections in such exceptional circumstances, i.e. on postponing already called early elections beyond the deadline stipulated by the then valid Local Elections Act (OG 144/12, 121/16 and 98/19).