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CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON
“ The role of judges in striking a balance
between protecting the public interest and human rights
in the context of terrorism”
Reply submitted by
the delegation of Croatia
Answers to the Questionnaire
CROATIA
"The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism"
Questions
A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.
Answer:
After becoming the member of Council of Europe in 1997 and especially now when Croatia is candidate Country for becoming full member of EU, great attention is given to provide training for judges on European law.
Most of these activities are provided through Judicial Academy and through activities of Supreme Court, with or with out assistance from foreign partners, governmental or nongovernmental.
All provided training is designed for in-service training of judges.
Last Year seminar for judges of Supreme and higher courts has been organized on law of EU, which lasted twelve months.
Judicial Academy has organized several seminars through country on implementation of Convention of human rights and case-law on Court of human rights.
At least 200 judges attended these kinds of seminars and workshops.
In Croatia there is about 1.800 judges including judges of Petty Crime Courts ( without these judges thee is about 1.500 judges).
A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).
Answer:
Also recently judges are provided by case-law of European Court of human rights through publications of Judicial Academy.
Mostly they have to do their own research. Web sites of most of the courts and Ministry of justice have links to sources of international courts case-law.
A.3. Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?
Answer:
Yes. Courses are funded partly by state and partly by judges.
Courts do not have legal translation facilities.
B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)
Questions
B.1 What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.
Answer:
Through several past years dialogue between CHR and judges of Croatian courts has been provided through study visits to CHR, and lectures and seminars given by Croatian judge- member of CHR (honourable judge Nina Vaic).
There are constant and permanent cooperation between CHR and Constitutional Court of Croatia. Constitutional Court regularly in its decisions refers on case-law of CHR.
Constitutional Court provided seminar for judges regarding Article 6. of Convention of human Rights.
B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?
Answer:
More has to be done in Croatia in that respect. (see answer under B.1.)
C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan)
Questions
C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?
a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) the case-law of:
- the European Court of Human Rights
- the Court of Justice of the European Communities
d) international treaties.
Please cite the relevant constitutional provisions or case-law.
Answer:
By Croatian Constitution (Article 134.) International treaties in hierarchy of law are immediately after Constitution.
So they have in this hierarchy above national laws. Courts are powered to implement international treaties directly and immediately in each case before them. That includes European convention of Human Rights and case-law of CHR as part of Convention.
Croatia is not member of EU so EU treaties and case-law of Court of Justice of the European Communities are not implemented as part of our national law.
C.2. Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions?
Answer:
Yes. For the purposes of interpretation mostly by Constitutional court but through their decisions recommendations and resolutions are accepted in case-law of regular courts.
C.3 If the European Court of Human Rights were to hold that certain provisions of your country's legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court's judgments by the government, do the national courts have authority to prescribe their own measures implementing the Court's decisions?
Answer:
There is not such provision in national law, but if court would accept that case-law of ECHR is part of European Convention on Human Rights, and courts have right to apply provisions of Convention directly even if national law has a different provision, then judges would be permitted not to apply national law.
C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:
- a direct application for reopening of the proceedings?
- lodging of a claim for compensation?
Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which have breached the reasonable time requirement.
Answer:
All provisions of European Convention of Human Rights are implemented in Constitution of Republic of Croatia.
All parties are allowed to file complaint to the Constitutional Court if any constitutional right has been breached by non-appealable decision of national court.
In a case of breaching requirement of reasonable time unsatisfied party can lodge complaint to the Court of Appeal. Court of Appeal if finds that complaint is justified delivers decision ordering to the lower court in what time that court has to deliver decision and state has to pay compensation to the party. Decision of Court of Appeal can be appealable to the Supreme Court.
If Supreme Court breaches requirements of reasonable time complaint can be lodged to the Constitutional Court. (Articles 27. and 28. of Judiciary Act)
D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism
Questions
D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?
Answer:
Croatian Criminal Code and Criminal Proceeding Act is absolutely in accordance with all international standards and has been evaluated by Council of Europe and EU commission in that respect.
D.2. Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe what is the role of the judge in the proceedings in this type of cases and indicate in what way his or her role in this case is different from his or her role in ordinary proceedings.
Answer:
No.
In such case role of a judge is not different form his role in any other case.
Croatia fortunately can be described as "terrorist free country". In previous 15 years in Croatia there was only one case of terrorism heard in Court ( explosion of car bomb in 1991.)
D.3 What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.
Can you quote some specific cases where the question about such a reconciliation was raised?
Answer:
See answer above.
Croatia has substantive experience, due to unfortunate war against Croatia, in war crimes cases and all other criminal cases linked to breaches of Geneva Conventions. These cases are heard in 4 major County Courts ( Courts of Appeal as well for civil cases and less serious criminal acts) and criminal law judges of that courts attended and are attending contentiously training courses about implementation if international law, mostly with experts of Hague Tribunal.
Court hear this cases according to Croatian procedural law.
Croatia ratified all major Conventions regarding exclusion and deportation of aliens and has numerous bilateral agreements with all European countries.
Duro Sessa
Member of CCJE for Croatia
President of Croatian Association
of Judges
County Court of Zagreb
Trg. N.S. Zrinskog 5
e-mail: [email protected]