AMERICAN LESSONS LEARNED – EUROPEAN FUTURE RETHOUGHT

Đorđe Gardašević, Ph. D., Assistant Professor, Faculty of Law, University of Zagreb, Trg maršala Tita 14, Zagreb; gardasevic_99@yahoo.com

AMERIČKA ISKUSTVA – PROMIŠLJANJE EUROPSKE BUDUĆNOSTI

Dr. sc. Đorđe Gardašević, docent Pravnog fakulteta Sveučilišta u Zagrebu, Trg maršala Tita 14, Zagreb; gardasevic_99@yahoo.com

The most notable feature of the notion of states of emergency is the assumption of their unpredictability. As such, it has been both normatively and positively deeply embedded in constitutional thought and practice to this day. However, notwithstanding its unavoidable advantages, I try to claim that it represents a somewhat outdated concept that stands in opposition to the normative development of constitutions in general, and more specifically to the development of the notion of fundamental rights and freedoms. Taking the American history of the evolution of fundamental (constitutional) rights and freedoms as the starting point, I focus on two comparative examples (France and Croatia) which offer some emergency experiences, but which both belong to the period well before these two countries actually started to construe their own constitutional vision of fundamental rights and freedoms (from 1971 and 1999, respectively). My central argument is that the French Constitutional Council and the Croatian Constitutional Court have since then developed a significant body of case-law which must be taken into account when evaluating contemporary constitutional limitations of emergency measures.

Keywords: States of Emergency, crisis, emergency, constitutional review, Fundamental

Rights and Freedoms