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Croatia's Unprecedented Democratic Shift: President's Fitness Questioned by Constitutional Court

On 15th March, in an unexpected announcement at the press conference of opposition leader Peđa Grbin of the SDP (Social Democrats Party), Croatian President Zoran Milanović declared his candidacy for Prime Minister in the upcoming general elections scheduled for 17th April. This marks a historic first; never before has a sitting President sought the country's most powerful government office.

President Zoran Milanović, prompted by the political situation in Croatia and appointment of Judge Ivan Turudić for the State Attorney-General, decided to run at the general elections. President Milanović announced that “the river of justice” is coming and he will lead the next government. 

Milanović's unexpected declaration stirred significant political turmoil in Croatia, overshadowing the dominant party, HDZ, in media coverage. The move sparked debate among politicians and constitutional experts about whether he must resign to pursue election as Prime Minister. 

Nonetheless, the Croatian Constitution lacks clear directives on whether a sitting President is required to resign from their role before running in general elections, nor does it explicitly forbid a sitting President from candidacy for the Prime Minister's office while serving as Head of State and Commander-in-Chief of the Armed Forces. This has led to a divide among constitutional experts and politicians regarding his eligibility, creating a unique and legally ambiguous scenario in Croatian politics. 

Senior members of HDZ, the party in power, are of the opinion that President Milanović is violating the Croatian Constitution with his announcement, and is in an attempt to do the coup. Additionally, they stated that the Constitution Court should have held a session already when he announced his candidacy.

For the moment, Croatian State Electoral Commission and the Constitutional Court of Croatia are not giving any public official statements on this matter. President of the Constitutional Court, Judge Miroslav Šeparović said that he will be able to discuss this situation if the matter comes to the Constitutional Court.

Appointment of Ivan Turudić as the State Attorney-General

President Milanović's decision to run for Prime Minister was largely influenced by recent developments in Croatia's judicial system, particularly the appointment of Ivan Turudić as the State Attorney-General. Ivan Turudić was appointed to this position despite wide public and political disapproval. Problems with Judge Turudić dates back to the time of Prime Minister Ivo Sanader, when Croatian Minister of Justice Dr Vesna Škare Ožbolt was dismissed for refusing to appoint Judge Turudić as the President of the Zagreb County Court.

Her refusal was based on ethical concerns, stemming from an incident where Judge Turudić secretly met with an individual who was a defendant in a case over which he was presiding. Justice Minister Škare Ožbolt's refusal to appoint Judge Turudić for the position as the President of the Zagreb County Court highlighted her stand against what she viewed as the corrupt behaviour, leading to her confrontation with Prime Minister Ivo Sanader and her subsequent removal from the ministerial position.

Dr Vesna Škare Ožbolt, former Minister of Justice of Croatia stated how Croatia is in a difficult situation with democracy and justice: “Croatia is in a situation never seen before, we have a President in the campaign for a general election. The Prime Minister is also campaigning. We don’t have a Parliament. Nonetheless we have two State Attorney-Generals”.

Vladimir Šeks who is one of the longest and most influential member of the leading party HDZ (Croatian Democratic Union), and author of the Croatian Constitution, was very critical about this move of the President Milanović and advised the government and Prime Minister Plenković to request the Constitutional Court to declare the President Milanović ‘unfit’ and therefore remove him from the office. Šeks stated that the President Milanović is violating the constitution because he is not anymore in the neutral position which he needs to hold while serving as the President of Croatia. Therefore, he made an unconstitutional move when he declared to support the SDP and also be a candidate for the Prime Minister in the elections next month.

The Constitutional Court of Croatia and Chief Justice Miroslav Šeparović

This matter is coming to the Croatian Constitutional Court, led by Chief Justice Miroslav Šeparović on Monday 18th March. The critical concern is whether the Court's decision will be just and autonomous, unaffected by external influences. The pivotal issue to be debated is whether President Milanović is obligated to resign, or if there's a possibility that the Constitutional Court, through the State Electoral Commission, could disqualify him from running. The interpretation of the Constitution by the Constitutional Court and Šeparović will be crucial in determining whether Milanović can continue his presidency while also being a candidate in the elections.

Selective (un)constitutionality

Constitutionality was not questioned by the Constitutional Court or constitutional experts when the Prime Minister Plenković unilaterally, without communicating with the parliament, removed ministers, or when the Prime Minister persistently refused to meet with the President at the Council for National Security. There was no question of constitutionality when Turudić was elected as the State Attorney-General without the security clearance, solely because he would never pass the security check, or in the fact that we currently have two State Attorney-Generals, one of whom (Turudić) is still a judge at the Croatian High Criminal Court.

The problem is not that President Milanović is running in the elections because he thinks that Turudić as the State Attorney-General is a national disaster. The problem is that there are "constitutional law experts", who do not think that Turudić’s appointment is an issue. However these “constitutional experts” question the President’s decision to run in the general election – stated Lea Ivanković, Croatian lawyer and politician.

Who will be the President if the President Zoran Milanović is forced to step down?

Should President Zoran Milanović be required to resign in order to qualify for candidacy or the Constitutional Court declare him ‘unfit’, the Constitution dictates that Gordan Jandroković, the Speaker of the Parliament (Sabor), would assume the presidential duties. This scenario would place Jandroković in a difficult position, potentially preventing him from participating in the elections himself, depending if the new legal practice will determine such ruling. Even if he decides to step down and give this duties to one of his deputies, this can further place Jandroković’s deputies in an unpleasant position conflicting with their aspirations for a candidacy in the general elections.

Who will entrust the mandate to form the new government after elections?

Based on constitutional provisions, the President of the Republic calls elections for representatives in the Croatian Parliament, convenes the first constitutive session, and entrusts the mandate for forming the Government to the person who enjoys the confidence of the majority of all elected representatives in the Parliament.

In the event that President Milanović doesn’t need to resign to be a candidate in the elections and eventually wins, becoming the next Prime Minister, Gordan Jandroković is still remaining the Speaker of the Parliament until the first constitutive session after the elections, and election of the new Speaker. Therefore, according to the Croatian Constitution at the moment of the President Milanović's resignation, Speaker Jandroković would assume the duties of the Croatian President and would be in a position to give Milanović the mandate to form the next government.

However, if President Milanović is required to resign or is declared unfit in order to be a candidate in the general elections, then according to Article 97 of the Croatian Constitution the Parliament Speaker Jandroković would take over the duties of the President and wouldn’t be eligible to run in the general elections himself. While President Milanović is stating that Speaker Jandroković will not be in this position after the elections. Alternatively, he might try to pass this responsibility to one of his deputies, who could also refuse. This might create a constitutional crisis in Croatia. 

President Milanović stated he will not step down as the president and will not allow the party in power to take over the control of the country. He will in any case run in the general elections, as the leader of opposition.

This is a never seen before situation in Croatia and Europe, President Milanović's decision to run for Prime Minister is showing a deep division of ethical, legal, and political challenges in Croatia. It underlines issues of corruption, transparency, and the rule of law within the country's political and judicial systems. 

The outcome of this controversy could have significant implications for Croatian democracy, the integrity of its institutions, public trust and the future of its political landscape in the EU and region. However, the fact that a sitting President has announced that he is running for the Prime Minister is a real democratic phenomenon never seen before in any European country and the outcome will be known next month.

Image: Ognen Teofilovski/Reuters

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