Strasbourg, 12 February 2001
CCJE (2001) 22
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Croatia
In Croatia after 3 January 2000, when elections were held, Croatia has new Parliament and new Government which is product of coalition of 6 political parties which also have majority in Parliament.
One of pre-election promises was that new government will introduce changes in judiciary, which is unfortunately subject of wide public criticism.
In previous year Croatian Parliament adopted changes to the Croatian Constitution, and at very end of last year changes to Judiciary Act and Law on the High Judiciary Council.
Most of Croatian Judges, and Association of Croatian Judges which represent 90% of all judges in Croatia see this changes to the Constitution, Judiciary Act and Law on the High Judiciary Council as step back in guarantees of independence and impartiality of judiciary.
It would take to much space to explain all this statements. Instead with s answers to the questionnaire please find attached Final draft of Judiciary Act and Act on High Judiciary Act.
In this document it is clearly marked where changes were made, and how particular article in the Act was used prior to the amendments.
Association of Croatian Judges submitted motion to the Constitutional Court of Republic of Croatia with request to judge upon accordance of these laws with Constitution and fundamental international documents like:
-UN basic principles on the independence of the judiciary,
-Recommendation No.R(94)12 of Committee of Ministers of Council of Europe
- the independence, efficiency and role of judges,
- European Charter on the Statute for Judges.
I THE INDEPENDENCE OF JUDGES
1. Is the independence of judges guaranteed by the Constitution or by legislation?
According to Croatian Constitution, Article 120 section 1, judicial office shall be permanent.
But in same article there is exception of that rule, and judge when he/she is first time admitted to judicial office, judge shall be appointed for a period of five years.
After judge is re-appointed a judge shall perform his judicial office permanently
2. What institutional safeguards are there with regard to the independence of judges?
Institutional safeguard to the independence of judges is stated in Article 115 of Croatian Constitution:
“Judicial power shall be exercised by the courts
Judicial power shall be autonomous and independent
The courts shall administer justice according to the constitution and law.”
Also independence of justice is protected with Article 6. of Judiciary Act.
In Croatian Constitution amended Article 4. it is stated Government shall be organised on the principle of separation of powers, but that principle includes all forms of mutual cooperation and reciprocal control of power holders .(see Article 4 of Constitution )
It is dubious what that mutual cooperation and reciprocal control means between legislative and executive powers on one side and judicial branch of power.
Mode how President of Supreme Court, and presidents of other courts will be elected also introduce supremacy of legislative and executive power and that extended influence in judiciary. (see Article 116 of Croatian Constitution, Article 32a of Judiciary Act, Article 73a to 73j of Judiciary Act).
In case of appointment of President of Supreme Court House of Representatives on the proposal by the President of Republic elects President of the Supreme Court, and in case of other presidents of the courts it is under absolute discretion of Minister of Justice.
Is the irremovability of judges recognised?
Irrevocability of judges is recognised.
According to Article 67a of Judiciary Act judicial function of a judge shall be terminated if he is dismissed from it by High Judiciary Council in accordance with the Constitution and law.
Judge can also be dismissed from the judicial function in the court to which he was appointed by virtue of the law in the following cases:
-if he/she reaches 70 years of age,
-on the day he/she started working at another court, or another judicial or state body.
Exception of principle of irrevocability of judges is introduced in Article 18a of Law on the High Judiciary Council:
“The Council shall, on the request of the Minister of Justice or ex officio, annul the decision on appointment if it establishes:
-that the appointed judge did not meet the requirements for nomination,
-that decision was based on untrue data and proof,
-that the judge has not taken an oath, without justified reason, within six months after the appointment,
-that the appointment was made following a criminal offence of either the candidate, the President or the member of the Council.
This reasons, especially first two and last one are abstract and without any time limitation Consequence could be that at any time decision on appointment could be annuled ex tunc, and that would annul all decisions of that particular judge.
This article really annuls the principle of irrevocability of judges and brings insecurity to the parties before the court.
4.Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?
Court decisions can be reviewed only in the appeals procedure in courts of appeal.
5. Can a case be withdrawn from a judge? If so, on what grounds, and by which authority?
Assignment of work in courts shall be made at the beginning of each calendar year.
Cases in courts are assigned according to the alphabetical order of judges.
Case can be withdrawn from a judge according to the Article 56 & 57 of Judiciary Act and Court By-law if:
-judge is excluded
-judge is unable to perform judicial work over longer period of time.
II THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. What qualifications are required and what conditions must be met in order to become a judge?
Qualifications required in order to become a judge are stated in Article 50 of Judiciary act. Conditions vary from level and type of courts.
2. Are judges recruited by competetive examination, on the basis of a professional examination or on the basis of their qualifications?
Judges are recruited on the basic of their qualifications and general qualifications like competence, creditableness and worthiness.
3. What level of studies is required to become a judge?
Diploma from Faculty of Law (4 year study) and bar (judiciary) exam.
4. Is previous professional experience required?
Yes, and it depends on level and type of court (see Article 50 of Judiciary Act)
5. Are there any age requirements?
6. Are judges elected?
7. Or are they appointed?
YES. Judges are appointed by High Judiciary Council formed of 11 members. Members are elected by House of Representatives of Croatian Parliament. Seven members of the Council are elected from among judges, two members from among attorneys at law, and two members from among university law professors.
8. Or are they selected in another way?
9. Which authority is responsible for recruiting judges?
9. High Judiciary Council.
10. Does any authority indipendent of the government and administration take part in the selection or promotion process?
YES. Beside authority of High Judiciary Council, in courts there are Judicial Council. Councils have authority to:
-assess the judges performance,
-give an opinion on the candidates for judges at the courts within its scope,
-propose candidates for Presidents of courts,
-pursue other duties land down by Judiciary Act and Rules of Procedure. ( see Article 31a to 31n of Judiciary Act)
Judicial Council is elected by all judges of County Court and municipal courts from the territory of that particular county court.
At this point it has to be mentioned that by Article 121 of Constitution in the procedure of appointing and reliving judges of office, the HJC has to consult the competent committee of the House of Representatives of the Croatian Parliament.
Competent body is Judiciary Committee form of the members of Parliament. That means that political body has and can have influence on independent body which HJC should be.
Fact that Minister of Justice as member of the Cabinet, and politician by definition of his/hers duties and responsibilities is only person who has authority to recommend to the House of Representatives of Parliament all 11 candidates to act as members of the HJC.(see Article 3,section 6 of Law on the HJC) creates possibility that elected members of HJC will be under influence of the Government, and that they will follow opinions of Judiciary Committee of Parliament because in that Committee majority is held by the party which forms Cabinet and has majority in the Parliament.
Judges, attorneys-at-law, professors recommend only candidates from among their profession in a way that for each position in HJC they have to propose three candidates. That means that judges
(Extend Convention of the Supreme Court ) have to propose 21 candidate, General Assembly of the Croatian Bar Association 4 candidates, and Conference of Deans of the faculties of law 4 candidates.
It is realistically to expect in political life of Croatia and former experience in electing former HJC that politics, petty politics and politicians will have dominant role in this process, and with possibility implemented in law that Minister of Justice has authority to propose candidates for members of HJC politics will have decisive role.
In conclusion regarding this question even in Judiciary Act and Law on the HJC there are safeguards to protect principle that judges should be elected by judges, that principle has not been followed to the standards in above mentioned international documents.
11. How and by whom are judges promoted?
If there is vacant place in the higher court it is published in Official gazette of the Republic of Croatia. Candidates who have required qualifications are free to submit their applications.
HJC decides between all applicants who fulfil required qualifications.
12. What are the criteria for promoting judges? Are they objectively defined?
Criteria for promoting judges is evaluation of his/hers judicial performance. (see article 51 of Judiciary Act).
Apart from the conditions referred in article 50 of Judiciary Act judge to be promoted (appointed) to higher court has shown expert knowledge and the capacities to perform tasks of the judge.
Evaluation is given by Judicial Council (see Article 52 & 54 of Judiciary Act)
In Article 52 of Judiciary Act criteria for assessment of judge work are stated.
They are not objective, all judges are not in same positions especially those who work in panels, and final assessment given by voting!!! of members of Judicial Council.
13. In the cases can a judge be removed from office?
Judge can be removed from his/hers office according to Article 67 a of Judiciary Act.
-if judge is dismissed from judicial function by HJC
-if he/she reaches 70 years o age,
-if he/she stars to work in another court or anther judicial or state body.
Also judge can be removed from his office if he/she is not re-elected after five years of first probatory mandate, and if decision of his/hers appointment is annulled according to Article
18 a of Law on HJC.
14. Do you wish to make any comments or mention any practical difficulties with regard to the independance and appointment of judges in your country?
NO, because all comments and difficulties are mentioned in answers already given in this section.
III THE FUNDING OF THE COURTS
1. How are the courts activities founded?
Court activities are founded by Ministry of Justice.
2.Give a brief description of the rules governing the setting of budget for the judicial system and the courts.
At the end of each year House of Representatives delivers State Budget for the next year upon the proposal of the Government (Cabinet). In Government proposal is drafted by Ministry of Finance.
3.Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
Not really. Only according to Article 92 of Judicial Act Ministry of Justice shall obtain opinion how founds will be allocated from the Convention of the Supreme Court of the Republic of Croatia.
4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?
NO. Croatian judiciary system suffers from lack of staff, there is practically no office automation and data processing facilities. Only few courts in Croatia have that kind of facilities.
5. Do judges encounter other material difficulties, which prevent them from acting efficiently?
Costs for the operation of the courts are allocated by the Ministry of Justice. If there are any difficulties in filling State Budget that automatically consequences has in ability of courts to maintain their regular operation.
6. Are appropriate measures taken to assign non judicial tasks to other persons?
No. There is tendency in Croatia to wide jurisdiction of courts on matter which are not really courts matters. Also most of non judicial tasks in courts, especially in case management are done by judges.
7. General comments on the funding of the courts.
Judiciary as a whole has opinion that there should be more autonomy in courts in a matter of functioning of the courts.