Executive Supervision of Local Self-government Units’ By-laws – de lege lata and de lege ferenda –

Razmatraju se de lege lata i de lege ferenda postupci i ovlasti izvršne vlasti u obavljanju nadzora nad općim aktima predstavničkih tijela jedinica lokalne samouprave – općina i gradova. Izvršna vlast – općinski načelnik odnosno gradonačelnik, predstojnik ureda državne uprave u županiji, središnje tijelo državne uprave i Vlada Republike Hrvatske ovlašteni su u samoupravnom djelokrugu obustaviti od primjene opći akt, i to samo zbog ocjene da je protivan Ustavu ili zakonu, dok konačnu odluku o njegovoj ustavnosti i zakonitosti donosi Ustavni sud. Vlada raspolaže i širim ovlastima te može čak pod određenim pretpostavkama i raspustiti predstavničko tijelo. U poslovima prenesenog (povjerenog) djelokruga središnja tijela državne uprave mogu obustaviti od primjene opće akte jedinica lokalne samouprave a Vlada ih može ukinuti ako ih ocijeni nezakonitim ili nesvrhovitim.Representative bodies of local self-government units of municipalities and towns – municipal and town councils – are empowered, on the basis of the Constitution and a series of laws, to make by-laws (statutes, decisions, physical planning, budget) which regulate numerous issues important for the local unit as well as for the xercise and protection of the rights, responsibilities and legal interests of natural and legal persons. Most by-laws are made within the self-governing (basic) scope of local self-government and a smaller number of them within the delegated scope. Pursuant to the principle of the rule of law, proclaimed by the Constitution of the Republic of Croatia (Art. 3), all by-laws have to comply with the Constitution and the law. Therefore, the Croatian legal system provides for legal procedures and instruments by which the protection of constitutionality and legality is ensured. Supervision of by-laws made by representative bodies of municipalities and towns within the self-governing scope is limited, according to the Constitution and the European Charter of Local Self-government, only to the question of its compliance with the Constitution and the law, while the Constitutional Court is exclusively competent to review and make decisions on the constitutionality and legality of such by-laws and annul them or abolish them. Nevertheless, on the basis of the Local and Regional Self-government Act, executive bodies (local and central) have jurisdiction to supervise constitutionality and legality of by-laws and suspend the application of a by-law which they consider to be unconstitutional or illegal and possibly take measures. The article gives a critical analysis of the power of the municipal head executive or mayor – as the holder of the executive power in the municipality or town – to suspend the by-law of the representative body, to require the representative ody to re-examine it as well as to fulfil its duty of informing the central administrative body competent for local and regional self-government about the adopted by-laws. The author examines – de lege lata and de lege ferenda – the authority of the head official of the county office of public administration (administrative head official at the regional level) and central administrative body competent for local and regional selfgovernment to suspend from implementation by-laws of doubtful constitutionality and legality. Deficient procedural provisions on instituting and conducting of such proceedings are criticised, particularly because they are instituted exclusively ex officio. The power of the Government to decide whether it will or will not institute proceedings before the Constitutional Court in order to review constitutionality and legality of a suspended by-law is critically analysed, especially because such a decision depends on political considerations of the Government. If the Government institutes proceedings before the Constitutional Court, then the disputed by-law is not applied until the conclusion of the constitutional court proceedings. However, if the Government does not institute proceedings before the Constitutional Court within a period of 30 days, the decision on suspension from application ceases to have effect. The author analyses the legal regulation and up-to-date practice of the Government to dissolve the representative body of a local self-government unit due to exceptionally serious violation of constitutionality by its by-laws (e. g. making a decision which threatens the state sovereignty or territorial integrity) or frequent unlawful decisions or failure to adopt certain by-laws within prescribed terms (statute, budget, financial plan) or incapability of making any decisions during a longer period of time. Finally, the author critically examines the legislative solution by which in the matter of the delegated scope, the Government has the power to abolish but not to annul a representative body’s by-law