The Constitutional Court's decision, in which the judges declared themselves incompetent to decide on the Government's three-year closure of St. Mark's Square to citizens, Gong finds extremely dangerous - it confirms that the principle of separation of powers, which implies mutual checks and balances of the branches of government, does not function in Croatia. If the fearful Constitutional Court is not competent to check whether the executive branch adheres to the Constitution and laws, no one stands in the way of the arbitrariness of the Government of Andrej Plenković.
The executive branch has abused its position of power and has, contrary to the Constitution, taken the public space of St. Mark's Square away from the citizens of the Republic of Croatia. Thus, this square, which is a common good and belongs to everyone, has become subordinate to protected objects owned by the executive branch. The freedom and interests of citizens are subordinated to the interests of the state authorities is what five constitutional judges point out in their dissenting opinions. However, the majority of judges still sided with the Government, declaring themselves incompetent and rejecting Gong's request.
The majority in the Constitutional Court ignored the fact that, as stated in the Constitution itself, fundamental freedoms and rights can only be restricted by law, not by a regulation which is subordinate to the law. In the explanation of the decision in which they declared themselves incompetent, they incorrectly state that the text of the regulation does not restrict constitutional rights and freedoms in any way and that only the application of the regulation can lead to some restrictions, which they cannot determine in this procedure. Their argument is that the Constitutional Court is not competent to evaluate the general implementation of regulations but that this can be the subject of constitutional complaints in individual cases of violations of human rights and freedoms.
Contrary to the eight judges who declared themselves incompetent to decide on Gong's request, as many as five judges voted against the majority decision: Mato Arlović, Ingrid Antičević Marinović, Andrej Abramović, Lovorka Kušan and Goran Selanec. In their dissenting opinions among the constitutional judges, there is a consensus that the regulation is unconstitutional simply by virtue of being a regulation that is not a law, and only by law can constitutional rights and freedoms be limited, including freedom of movement and assembly in squares that are owned by all of us, not the executive branch.
By turning St. Mark's Square into a protected area, the Government has overstepped its powers and appropriated powers that the Constitution exclusively granted to the Croatian Parliament. This has led to a violation of Article 4 and Article 5 of the Constitution of the Republic of Croatia. And not only that, but the Parliament did not react to such actions by the Government, thus violating its constitutional duty from paragraph 2 of Article 52 of the Constitution, as constitutional judges Kušan, Selanec and Abramović point out in their dissenting opinion.
The three judges doubt the success of the security measures, believing that St. Mark's Square was closed to prevent close encounters between media representatives and state officials upon their entry and exit from protected objects.
The issue of security should be an expression of rational policy, not an instrument of a frightened regime, highlighted judge Ingrid Antičević Marinović.
Gong considers the Constitutional Court's decision extremely problematic and interprets it as their pandering to the Government and approval of their overreach of powers and endangering the rights and freedoms of citizens. If the fearful Constitutional Court is not competent to check whether the executive branch adheres to the Constitution and laws, no one stands in the way of Plenković's Government's arbitrariness.
