According to Croatian law, it is within the competence of regular courts to assess evidence, determine whether facts have been proven and, ultimately, render a conclusion on the basis of such facts. The Constitutional Court of Croatia in its recent ruling No. U-III-2791/2016 from 1 February 2018 stated that, in exceptional circumstances, it is also within its authority to engage in the examination of evidence and facts of the case, but only to the extent necessary to provide protection from arbitrary court decisions.

Back in March 2015, the Croatian Competition Agency passed a decision in which it established that there was a prohibited cartel agreement between seven of the largest personal and asset security providers in Croatia. The decision was challenged by its addressees all the way to the High Administrative Court of Croatia, which upheld the Agency’s decision. The Court’s ruling was then ultimately challenged before the Constitutional Court for alleged infringement of, among others, the right to a fair trial. 

In order to establish whether the Court and the Agency acted arbitrarily and consequently violated the right to a fair trial, the Constitutional Court deemed it necessary to (i) make an assessment of the evidence and the established facts, and (ii) determine if the established facts were sufficient to justify the underlying decision.

In its Ruling the Constitutional Court stresses that "it is not its task to take over the role of courts or administrative bodies", but that its role is "limited to examining if interpretations of the court are consistent with the Constitution from the aspect of protection of human rights and fundamental freedoms". The Constitutional Court took this further and went on to examine the underlying facts and finally concluded that the Court and the Agency had failed to objectively consider all the factual and legal elements relevant for rendering a decision. The Constitutional Court found this to be arbitrary and an infringement of the right to a fair trial.

Accordingly, even though the Constitutional Court is not a part of the regular trial judiciary, in certain situations it may assess the evidence itself and review conclusions of the trial courts. This could be considered, in certain cases, as the final move a legal counsel can make in order to win a case that has already gone downhill.