|
|
English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE FOR 2007 CCJE OPINION
CONCERNING THE COUNCILS FOR THE JUDICIARY
Reply submitted by
the delegation of Croatia
Answers:
1.
YES.
According to Constitution of Republic of Croatia Parliamentary Judiciary Committee gives opinion on candidates for appointment for any vacant judiciary post. In practice this has no possible influence on decisions of State Judiciary Council ( SJC) because this Committee supports all candidates who meet legal formal requirements for appointment.
In that sense Committee is not exercising its powers. In that sense influence is only theoretical.
There is no other interference between legislative and judiciary powers.
2.
NO
3.
YES
4.
4.1. Minister of justice has right to initiate disciplinary procedure against judge. This happened only once so far. There is
4.2. Minister of Justice has authority to appoint presidents of courts on the proposal of Councils of Judges-body of court self-government which exists an each Court of Appeal (County Court) and high courts in Croatia. This body is elected by judges and members are only judges from each court area. Minister of justice has to appoint president of court among candidates proposed by Council but Minister has also right not to accept any of proposed candidates. In that case all procedure is repeated. In new procedure after Council of Judges at respected court delivers its proposal, General Assembly of Supreme Court of Republic of Croatia proposes candidate for president of court to the Minister of Justice. Minister has to appoint that candidate which has been supported by Supreme Court.
In this sense judiciary has important role in appointment of presidents of courts but still final decision is delivered by Minister of Justice.
4.3. President of court has administrative duties in management of the court. Highest body of judicial administrative governance is Ministry of justice. In that respect management of courts is under influence of Ministry of justice.
5.
Judicial staff is working under authority of a judge, and in some general working conditions and disciplinary responsibility under authority of the president of the court.
6.
President has no competences as listed in this question. President of the court has authority to initiate disciplinary proceedings against judge before SJC and to represent charges in the proceedings.
II. General concerning Councils of Judiciary
7.
YES.
8.
State Judiciary Council
9.
Constitution and Law (Law on State Judiciary Council).
10.
State Judicial Council has been introduced in Croatian legal system immediately after gaining independence and when democratically elected Parliament adopted new Constitution. In that respect Constitution is a legal base for existence of this body of judiciary.
After introducing all democratic institutions in Croatia, and as independent and impartial judiciary is important and crucial part of democratic society it was essential to have such high independent body as safeguard of independence of judiciary.
More so because during communist rule there was not independent and impartial judiciary in sense which we understand now. In that respect in countries with no long traditions of independent judiciary it is even more important to have legal frame on the highest level. HJC is part of that legal frame.
After HJC was elected it started to exercise its functions in 1994.
III. Composition
11.
11.1.HJC has eleven members.
Composition of HJC: 7 judges, 2 lawyers (attorneys at law), and two professors of Faculty of Law.
11.2. Regarding qualifications members have to meet qualifications required to exercise their duties as judges, lawyers or professors of law.
11.3. No (see also answer 12.)
11.4. See answer under 11.1.
12.
12.1. Procedure for election of members of HJC is different and depends on from which capacity members are elected.
Judges
All judges in all courts in Croatia have right to propose candidates and to be elected as members of HJC.
At general assembly of all judges in respected court judges are proposing candidates and vote on that proposal. They are allowed to propose judge from their own court but also from another court of same or higher level.
All proposals from different courts are collected at Supreme Court of Republic of Croatia.
General Assembly of Supreme Court ( all judges) and two representatives from all Courts of Appeal ( County Courts, High Commercial Court and High Misdemeanour Court) decides by secret ballot who will be candidates for membership in HJC among judges.
This Extended General Assembly proposes 21 candidate because for each post in HJC three candidates have to be proposed to the Parliament.
Proposing candidates it has to be taken in account that all types of courts and all levels of courts should be represented.
Lawyers
General Assembly of Barr Association is proposing by voting six candidates for two posts in HJC among lawyers.
Professors of law
Assembly of all Deans of Faculties of Law proposes by voting six candidates among professors for two posts in HJC.
As it can be seen from above mentioned each circle of possible candidates is proposing completely independently candidates for membership in HJC.
12.2. Parliament is by voting in accordance of Rules of Procedure in the Parliament electing members of HJC only among proposed candidates, which means that proposition from General Assembly of Supreme Court, Bar Association and Deans of Faculties of Law is biding to the Parliament and it can not elect somebody outside of the proposed list.
After election members are giving oath before President of the Parliament. Oath text is proscribed in the Law on HJC.
13.
President of HJC and Vice-president is elected by members of HJC for two years, and they can be re-elected.
14.
Term of office is four years, and any member can be re-elected but not more than once for new mandate of four years.
15.
YES if he/she is charged for serious criminal offence or if during the mandate member stops to act as judge, lawyer or professor.
IV. Resources
16.
From state budget under section Ministry of Justice which administrates budget for all judiciary.
17.
NO
18.
Staff is provided by Ministry of Justice but members of the staff are permanently designated to HJC.
19.
Two members of the staff.
20.
High school (Gymnasium) for administration.
21.
NO
22.
Main task is to prepare materials for the Council and to do all secretarial work.
V. Tasks
23.
23.1. Duty of HJC is to appoint judges( not presidents of courts) and to govern disciplinary proceedings against judges and to decide on their disciplinary responsibility delivering disciplinary measures against judges.
23.2. No duties in area of training of judges.
23.3. No responsibility in area of courts performance.
23.4. No responsibility in evaluation of the individual work of a judge. This is responsibility of different body of court self-management –Council of Judges elected by judges in each Court of Appeal and other High Courts
23.5. Disciplinary proceedings are only in charge of HJC. HJC has no authority to initiate disciplinary proceedings.
Rules of Criminal Procedural Act are applied in disciplinary proceedings against judges with all guarantees from presume of innocence to right for defence and legal representation.
Each decision of HJC which imposes disciplinary sanction against judge is subject to appeal. In that case decision is subject for revue before Constitutional Court.
If judge is freed of charges appeal is not allowed.
23.6. No responsibilities in area of the budget of the judiciary.
24.
NO.
25.
As HJC has no authority in area of court performance it is no need to collect information about functioning of the court. If such question raises during disciplinary proceedings then evidence is collected form president of the court, president of higher court or from ministry of justice or by some other proper source according to rules of procedure in disciplinary proceedings.
26.
Decisions on appointment of judges or disciplinary responsibility.
27.
Functions and responsibilities of HJC are described in law - Law on State Judiciary Council.
28.
Law on High Judicial Council has detailed rules on structure, elections, responsibilities, disciplinary offences, procedure, disciplinary measures, decisions etc.
29.
YES. Observance of Code of Ethic is not a task of HJC but of Councils of Judges .Code of Ethic is source for HJC regarding some disciplinary offences as "soft law"
30.
NO.
31.
YES. Decisions are published in Official Gazette with exception for decisions on disciplinary responsibilities.
VI. Assessment of the self-governance and the independence of the judiciary.
32.
No practical influence.
33.
HJC is independent from other States entities.
34.
Competences of Ministry of Justice are regulated by Law on Courts and Law on State administration, and competences of HJC are completely divided from Ministry of Justice. (See answers under section III)
35.
There is no cross responsibilities between HJC, Supreme Court, other courts and presidents of the courts.
All responsibilities and competences are regulated by law.
36.
HJC as well appoints judges of Supreme Court. President of Supreme Court is elected by the Parliament on the proposal of President of the Republic, and president of all other courts are appointed by Minister of justice on the proposal of Council of Judges.
37.
President of HJC decides which priorities of actions are and he/she is proposing the agenda for the session of HJC, but proposal has to be adopted by majority members of HJC.
Session must also be scheduled if one third of members ask for that.
38.
Appeal is possible on almost every decision of HJC.
Candidate for vacant post for a judge can appeal on decision of HJC. Appeal is decided at Administrative Court of republic of Croatia.
When judge is find guilty for disciplinary offence judge can appeal to the Constitutional Court.
If HJC dismiss judge form the office for some other reason ( permanently incompetent, find guilty for serious criminal offence, on his/hers on request) appeal to Constitutional Court is also possible.
39.
Strictly proscribed competences of HJC do not leave any space for HJC to act in fields mentioned in this question.
In other hand as all work of HJC is public that is best way how independence of judges is guarded and how judges are protected for undue influence.
Through public statements mainly by President of HJC that body protects its position in the judiciary and in society as well, and makes remarks on general problems of the judiciary including working conditions of judges.
VII. Future trends of Councils of Judiciary.
40.
There are not any real fundamental problems concerning the administrative management of the courts and the role of HJC.
41.
Not in particular.
Issue of judges' immunity form criminal prosecution is from time to rime matter of public disapproval even in only one case so far HJC did not remove immunity on the request of public prosecutor.
In Croatia judges have same scope of immunity as members of the Parliament, which means that criminal procedure against judge can not be initiated and started without permission of HJC.
42.
There is no formal relation with HJC but all judges who are members of HJC are also members of Association of Croatian judges.
43.
HJC has observer status.
44.
HJC is only appointing judges, and public prosecutors are appointed by similar body with same competences as HJC. Major difference between this to bodies is that instead two lawyers as in HJC; State Attorneys Council is composed from seven public prosecutors, two professors of law, and two members of Parliament.
Regarding disciplinary proceedings when case is initiated HJC appoints panel of three members. it is compulsory that two members are always judges. Members of the panel appoint president of the panel with limitation that president has also to be a judge.
That panel has duty to lead the process, collect evidence hear all statements and conclude the case.
Panel after that refers findings to all HJC in presence of judge his/hers defence and president of the court which initiated disciplinary proceeding. After this session is completed where judge is allowed to object all findings of the panel, HJC delivers decision on judges disciplinary responsibility.
Duro Sessa