President Milanović on Election of Supreme Court President: I will act in accordance with the Croatian Constitution, which I have sworn to uphold and defend

“A year ago, I took the oath of office. It is written there that I will uphold the Constitution, which is capitalized – and the law, which is in lower case – and make sure that the Constitution and legal order are respected. In this situation, in choosing between the Constitution and an unconstitutional law, I can choose either to violate the Constitution or to treat a certain law as if it did not exist. I have no dilemma; I will uphold the Croatian Constitution, which is applied directly. That is the doctrine of direct effect. Prime Minister Plenković is a lawyer and he knows what that means in European and Croatian law”, said the President of the Republic Zoran Milanović, commenting on Thursday about the procedure for electing the President of the Supreme Court.

President Milanović said that he had heard Prime Minister Plenković mentioning a competition in the context of electing a Supreme Court President. “I heard Prime Minister Andrej Plenković mentioning a public competition, but it does not exist. There is no competition, but a public call (for expression of interest). The difference is huge. A public call is something entirely different”, the President said and also reminded the Prime Minister of precedents that demonstrate the direct application of the Constitution: “There is ample precedent. For example, the HDZ set a precedent in 2004 at a Government session when Ivo Sanader used Article 104 of the Croatian Constitution, which states that the Government governs and nothing more, as a legal basis for a Government decision on removing a memorial to Jure Francetić in Slunj, since (the memorial) harms Croatia’s interests. So there were no administrative proceedings and that memorial was just removed or thrown away. Do you remember that? I am convinced you are familiar with such marginally important cases in Croatian legal history”.

The President of the Republic further pointed to the Constitutional provision on the election of the President of the Supreme Court. “Croatia has been electing the President of the Supreme Court for almost 30 years in a way that has become deeply ingrained as a constitutional and legal principle – and that is just one post in the system, administrative in principle and without any significant powers. Three years ago, a small parliamentary majority adopted a law that does away with one power, i.e. obligation of the President. This is not mentioned in the Constitution. I will read this out to you to avoid any confusion, and that is Article 116 of the Constitution. The Supreme Court of the Republic of Croatia as the highest court – by the way, it is no longer the top court with the establishment of the High Criminal Court, which is another unconstitutional adventure that should be brought to an end… So, the Supreme Court is now practically a pure formality – I am just suggesting, nothing more. The Parliament decides. The President of the Supreme Court is elected and dismissed by the Croatian Parliament with the prior opinion given at the general session of the Supreme Court of Croatia and the relevant committee of the Croatian Parliament, at the proposal of the President of the Republic. The Supreme Court President is elected for four years. Period. There is no law, nothing. There is no law in the Constitution; it is a norm that is to be applied. I do not negotiate with the Government, I negotiate with the Parliament. There is no mention of the Government there”, explained President Milanović.

Furthermore, the President of the Republic said that in the process of nominating the President of the Supreme Court he will be guided by the notion that change is needed at the helm of that institution. “The Constitution says that the (Supreme Court President) is elected for four years, meaning that it can be more, but I will not allow it to be more because I strongly believe that this is a function where people must change. Even if in the previous four years the job was performed by a person of whose work I have the highest opinion, I would not propose that person again. That person should return to their old job, I guess it’s called being a judge until they’re 70 years old. No one is as protected by the Croatian Constitution as the judges”, said the President of the Republic, reiterating that “the President has no choice when faced with the dilemma of whether to violate the Constitution or the law, since he swore to defend the Constitution”.

When asked by a journalist whether he would tell his candidate to apply to the public call, President Milanović replied: “No, by no means. That travesty, that miserable performance in which we put on wigs, high heels and pretend that we are competing, while there is no actual competition – we will not repeat that. That was the case with the election of the Attorney General, which was a disgrace to common sense and fairness. The way in which the election was conducted is a shame and I’m not referring to any person. We will not repeat that. The first thing that happened, in choosing the Attorney General, was that the person was told to apply to the competitive call. A game was played. It was a sloppy game and now this is being attempted with something that is precisely defined in the Croatian Constitution, for which I am responsible”.

The President reiterated that he would propose a candidate, that there was enough time for the election and that the election of the President of the Supreme Court would not be like four years ago when the President was elected almost on the last day. “It will not be like that this time. Both the public and Plenković and Grbin and everyone else from Parliament who wishes will be introduced to the person who will make the difference. I guarantee that. Then we will see who is against that person and why; it is because they oppose change. I know and we know very well who has been contacting us for the last month, who came from the Croatian Government for talks with my Head of Office, what that person said and what kind of games were mentioned. Don’t make me talk about that”.

Due to the fact that Supreme Court President Đuro Sessa spoke out publicly about his earlier disputes with the President, reporters wanted him to comment on that. “Mr. Sessa is not the topic for me here. Now the victim is Mr. Sessa and I didn’t mention him. Even if he was the best person for the job, I wouldn’t propose him again. I have previously been quite clear on that. There will be change. A person, who is for four years at the helm of the Supreme Court, can make a difference with small symbolic, albeit apparent powers”.

Journalists repeatedly requested a clarification of the President’s position on the Courts Act, which introduced a public call into the process of electing the President of the Supreme Court. President Milanović replied that it was “an unconstitutional law, which acts as an aid in obstructing the President of the Republic”. Journalists asked why the President believes the Act is unconstitutional. Because “you don’t have to use an aid”, said the President. “It’s like a prosthesis; it’s an aid that imposes on the President an obligation that is not in the Constitution”. That power is explicit; it is not absolute. The President does not appoint the President of the Supreme Court, the Croatian Parliament does that”.

The President of the Republic went on to say that the Act was adopted by members of Parliament who were told how to cast their vote. The Act was frozen; now it is melting and it stinks. “I will directly apply the Constitution I swore to uphold. The HDZ and its coalition partners should be careful when they want to compromise the few clear provisions of the Constitution and thereby fabricate relations that are not in the Constitution at all. The Constitution is directly applicable and I will apply it directly”, President Milanović underscored.

President Milanović recalled the reasons for adopting the Act. “The motive was that my predecessor, unfortunately, nominated Mr. Sessa, at the last minute, namely three days before the deadline. There are six months to go before the deadline. Slowly. Mr. Sessa was nominated that way because the President of the Republic had another candidate in mind, in my view, an individual who shouldn’t even be a judge, let alone President of the Supreme Court. Plenković didn’t want that individual, which was good, and at the last minute a compromise was reached to nominate Mr. Sessa. It was learned, two weeks later, that the owner of Agrokor had bought a lower class car from him at the price of a bulletproof Mercedes. Had this individual been under public scrutiny for a longer period of time, he would have never been elected President of the Supreme Court because he wouldn’t have passed the selection process. And now, since an unpleasant situation was over because there was no agreement between the President of the Republic and the President of the ruling party and the one who ruled the parliamentary majority at the time with the help of political yes-men who were told how to cast their vote, they tried to remedy something that can’t be remedied. The Constitution is unambiguous. Therefore, you depend on the person you elected President. However, it’s not written in the clarification of the law”, President Milanović said.

President Milanović referred to the recommendation of the Council of Europe’s GRECO based on which the Government amended the Act in 2018. “If you have to do something within the framework of the EU, you have to, that’s a fact and that’s the rule. That’s the game we agreed to play, and not for some quasi bodies to devise wise solutions. My question is – have they addressed some recommendation to Germany whereby, for example, the executive power has the right to interfere in a criminal proceeding?”

By repeating that in his view the Act isn’t “deficient, but unconstitutional”, President Milanović explained why he won’t request a review of the constitutionality of this Act. “I will never turn to the Constitutional Court. The job of the President of the Republic is not – if the political majority tries to compromise me and drown me – to cry and run to the Constitutional Court, because that takes forever. You’ve seen the fate of both President Josipović and President Kolinda Grabar-Kitarović when they turned to the Constitutional Court in trivial matters that had nothing to do with their powers. President Grabar-Kitarović waited how long? Therefore, not a chance, let the members of Parliament do that. I’ve been elected by the citizens to defend the Constitution, to uphold it and when the Constitution prescribes it, to act accordingly. And that’s how it’ll be”, the President of the Republic stated clearly, and announced that he’ll do the same in his capacity as Commander in Chief of the Croatian Armed Forces. “If the Croatian army is somewhere I find inappropriate, I’ll refer to the Constitution, and the army will be removed from such a place. We won’t initiate an administrative procedure. Fortunately, such circumstances are rare”, he said.

Asked whether he already has a candidate in mind for President of the Supreme Court, whether the head of office of the President of the Republic Orsat Miljenić is a candidate, President Milanović replied: “My job is to propose and to discuss beforehand. To propose someone who is suitable for that job. Orsat Miljenić isn’t a candidate, although it was the wish of some people, so I can shut their mouths for the next five years. Miljenić is a politician, just like Turudić, therefore he is a politician, but that’s why he’s not a judge. Orsat Miljenić is the head of my office, a member of the Social Democratic Party, he was a candidate for president of that party, therefore he can never be and never will be someone I would propose because I’m not the HDZ”.

President Milanović reiterated that he’ll uphold the Constitution, “and it’s up to others to think about their moves, about their contempt for the Constitution, about the fact that they’re adopting laws that have nothing to do with the Constitution”. “What’s next? That the Prime Minister is Commander in Chief?”, the President of the Republic inquired.

“If the Constitution doesn’t stipulate in some directive or power or duty that something should further be governed by a law, then period. And such a directive in this article of our Constitution doesn’t exist”, he added, and stressed that the Constitution should not be amended. “I have sworn to uphold this Constitution, I obey and defend this Constitution”, and don’t adjust it to me. Will a private party turn to the Constitutional Court or will the Constitutional Court rule that this Act is unconstitutional…. I have no expectations and I’m not a negotiator with the Constitutional Court. I’ve been elected directly by the Croatian citizens and as long as this Constitution is in force, I wouldn’t make amendments or additions to it, it will be as it is”, President Milanović said, and announced that “the individual he will nominate won’t be anyone from the present ranks of the Supreme Court”.

The journalists asked how the situation regarding the election of the President of the Supreme Court will be resolved. “So that some other Parliamentary majority adopts a law to repeal this Act. Therefore, it’s simple, just like the adoption of this Act. Therefore, damage can be done with one move. We have a high court for criminal procedures that is interpolated between the Supreme Court, which is a Constitutional category. The Supreme Court is the only Constitutional category, it equalizes practice, it is the highest court of justice. That’s the judiciary, it hasn’t got power. Currently, this Court has no work. Everything is at the Municipal Court. These cases will end up at the County Court. I detect Šeksism here. Someone persistently forced it, it finally passed, and one day it will simply disappear from the Croatian judicial system when another parliamentary majority will be in power. The Constitution is the Constitution, I have sworn to uphold and obey it, defend the Constitution in the singular form, with a capital letter and the laws have to be in accordance with the Constitution, and if I have a dilemma, if I’m in a situation that I have to choose, I have no dilemma”, he explained.

The President of the Republic recalled that until now, in the last twenty-five years, the presidents of the Supreme Court have been normally elected. “What’s happening now is sabotage, it’s an attempt to destroy Constitutional practices and standards. Let’s not make fools of people. No one will impose some kind of ground game to me. Do I have to defame the individual who will be a candidate? That’s ugly and I don’t wish to do that. I don’t want our children to watch that, to teach them civil disobedience and hypocrisy. The procedure will be in accordance with the Constitution”, the President said. He warned that there are people who divide everything according to political parties and who don’t understand the difference between state and party, and want everything to be political.

“I won’t nominate a lawyer for President of the Supreme Court. There are hundreds or at least dozens of excellent, prominent, qualified, educated and honest individuals who can do this job successfully and who will do it, who will, should need be, launch a disciplinary procedure against some rogue, we have never seen this happen. Someone who will distribute cases. A lot of things can be done here”, President Milanović said, and added that “obviously someone wants conflicts before the local election”. “It’s all the same to me. But I will not allow the Constitution to be breached”, the President of the Republic Zoran Milanović concluded.