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On 16 May 2022, the Croatian Constitutional Court held that the holding of a referendum to include 'epidemics and pandemics' in the constitutional provision which would require stricter preconditions for limiting fundamental rights during a state of emergency, was unconstitutional. 

A citizens’ initiative initiated the procedure of calling a constitutional referendum, in order to amend Article 17 of the Constitution of the Republic of Croatia. The provision regulates the possibility to restrict fundamental rights and freedoms in times of war and major natural disasters leading to a state of emergency (by a two-thirds parliamentary majority). The initiative proposed that the terms ‘epidemic’ and ‘pandemic’ be explicitly added to the possibility of circumstances covered by this provision, so as to require stricter preconditions for limiting fundamental rights when they occur. In support of this, enough signatures were collected from citizens, i.e., more than 10% of Croatian voters (the prescribed threshold).

Acting at the request of the Parliament (Hrvatski sabor), the Constitutional Court assessed whether the referendum question was constitutional. On 16 May 2022, the Constitutional Court ruled that it was not, which is an obstacle to holding a referendum. The Constitutional Court concluded that the proposed amendment to Article 17 of the Constitution could not produce the effects stated in the initiative and presented to the citizens, and that the citizens gave their signatures motivated by expectations of effects that could not be achieved. Although the proposed amendment is not in itself unconstitutional, it is not in accordance with the rule of law, as one of the highest values and the basis for the interpretation of the Constitution.

In the dissenting separate opinion, three judges emphasize that the Court has acted in a paternalistic way, tacitly changing the very nature of a democratic state by declaring citizens incapable of practicing democracy. On the contrary, the organization of a constitutional republic is based on the fundamental premise of direct and active participation of citizens in the management of the community to which they belong, with the active participation of all citizens in political decision-making processes at all levels.

Full text of the decision available at narodne-novine.nn.hr hr
Full text of the decision available at sljeme.usud.hr hr