Strasbourg, 7 January 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE opinion concerning the quality of judicial decisions : reply submitted by the delegation of Croatia
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
There is no strict model which judges should follow in drafting judicial decisions, even though in procedural laws (Law on Civil Procedure, Law on Criminal Procedure) specific articles proscribe what main parts any judgment should have. That as well states for decisions of appellate courts.
Can each individual judge choose his own style of drafting his decision?
Yes if he/she stays in the frame mentioned above. In practice judges are choosing their own stile and way how to draft their decisions.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
Decision is always reached by majority vote.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
Votes of all members of a panel are equal, but presiding judge is always signing the decision.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
Any decision of the court has to answer all factual and legal points raised during the case by the parties. In appeal proceedings court decision has to answer all points raised in the appeal.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
First instance judgement should consist of these parts:
Explaining what is plaintiffs point, what is defendant point, what facts are undisputable, what evidence was examined, how and why court finds that some facts are established ( factual reasons), what law has to be applied in that particular case, and finally court gives reasons for his decision. At the end decision on costs has to be explained 8 court fees, lawyers fees, expert witness etc.)
How in general terms are an appeal /Supreme Court decision drafted? Is the appeal in your country by way of rehearing the case or not?
Court of Appeal in civil cases is deciding in panel of three judges without hearing. In criminal cases if one of a party requests so, panel can be open to the parties, but they are only allowed to orally argue points in their appeal and to answer the argument of opposite side.
Decision of an appeal court can be.
-rejecting the appeal and confirming the first instance court decision,
- dismissing the first instance judgment,
- deciding differently.
Court of appeal has to give reasons for its decision, and to answer all points raised in the appeal (appeals)
Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, and administrative)?
Yes. Each branch of law has its own practice. Generally speaking judgments in civil matters are less long and more concise.
Could you describe precisely how the decision is transmitted to the parties?
Decisions are transferred to the parties by mail, by notaries public if parties request so, or by bailiff. It is also possible to deliver decisions to the lawyers in courts.
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
Court decisions are biding to the parties. Of course strength of the arguments in particular decision can affect general public but not in a formal sense.
Judgments of higher courts are not biding to the lower courts but higher courts are following their case law and case law of Supreme courts what makes in practice case law a source of law in les formal way.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
If a litigant does not complain with a judgment against him, other party has to initiate enforcement proceedings before court.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
Court proceedings are open to general public and to members to the press. Court decisions are public as well.
Public can be excluded from the court proceedings if procedural law allows it. Grounds can be generally described as reasons of national security, protections of minors, protection of witnesses or in particular types of cases (i.e. family cases, crimes of sexual nature etc). It is also possible to exclude public from part of a hearing.
Judgments are always public, even though proceedings were closed to public.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
In judgments it is not possible to disclosure participants in the proceedings. Exceptions would be protected witnesses which are defined by codename, but their identity is known to the court.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
Judgments can be available through court publications ( on internet as well), and by procedural law any person which shows legally recognized interest the case file and in the judgment can be available to that person. Judge in the case gives permission.
In practice if a case is open to the public permission is always granted to the members of the press, or other persons for legal research or similar purposes.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
On the internet judgments of Supreme Court are available on the internet and selection of important judgments of courts of appeal.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
It is monitored through statistical data on each judge, by percentage of judgments which have been rejected by higher courts.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter?
· legal basis:
· identification of the agencies that are responsible for the process:
· parameters that are evaluated:
· methods by which each parameter is evaluated:
Please see answer under 13.and 14.
Besides what has been already mentioned in Croatia performance of each judge is monitored by statistical reports which are in each court delivered monthly, every three months, after six months and at end of each year.
Statistical data also includes quality performance in number and percentage of cases where decisions were rejected in appeal process by higher court.
Reasons for dismissal of judgment are also monitored and divided in three categories:
-Application of law,
All statistical data is monitored in courts and by courts (judges). Ministry of justice is collecting all data and issues yearly summary report about court performance.
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
It is an everlasting debate about advantages and disadvantages mainly concerning misuse of that data if and when they are used not taking in consideration all relevant information and other circumstances which should be taken in consideration ( i.e. change of case law).
So far data is used for improving performances of courts and judges, and not as attempt to endanger independence of judges in understanding and establishing facts and apply law in particular case.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
Stable case law and laws which are not changed too often.
Is a system of evaluation of quality of each of the following in force in your State:
professional performance of police?
Yes X no
but only by their own criteria which are not so objective
professional performance of public prosecution services?
yes X no
but only by their own criteria which are not so objective)
· professional performance of lawyers? yes □ no X
· enforcement of judgements? yes X no □
· efficiency of ministry of justice services in general? yes □ no X
· quality of legislation? yes □ no X