THE INDEPENDENCE OF THE JUDICIARY
1. EXTERNAL INDEPENDENCE
According to the Constitution of the Republic of Croatia, the state power in the Republic of Croatia is organized on the principle of the division of power into legislative, executive and judicial power. The principle of the division of power includes forms of cooperation and mutual checks and balances between those who hold power, as prescribed by the Constitution and the law.
The bearer of legislative power in the Republic of Croatia is the Croatian Parliament (hereinafter: CP). In the Croatia Parliament there is a special justice committee, which discusses issues related to the justice system. This includes both discussions on proposals of laws relating to the justice system, but also discussions on the situation in the justice system. The State Judicial Council (the body which appoints and dismisses judges) is obliged in the procedure of appointing and dismissing judges to obtain the opinion of this Committee of the Croatian Parliament. The opinion of this Committee is not binding for the State Judicial Council (hereinafter SJC).
There is no separate institution for the supervision by the legislative power of the judicial power. However there is nothing to prevent the legislative power being given information relating to the organization of the courts which includes information on the number of specific proceedings, their length and the like. In terms of the enforcement of specific court decisions, or conducting of proceedings, the legislative power has no authority whatsoever in relation to the judicial power.
Immunity and the responsibility of judges
The Constitution of the State guarantees special immunity to judges. Judges may not be held responsible for opinions expressed or voting in rendering court decisions, unless there is a violation of the law by a judge, which is a criminal offence. This special immunity for judges is regulated in detail by the law.
The Republic of Croatia has a primary liability for damage caused in the carrying out of judicial responsibilities by a judge to a citizen or legal person, by his/her unlawful or improper work. The Republic of Croatia may request a judge to reimburse a sum of money paid if the judge has caused injury deliberately or as a result of extreme negligence. The liability of the judge for damage is thus subsidiary.
There are moreover separate laws and regulations regulating the issue of the criminal responsibility of judges if they commit a criminal offence in the course of discharging their judicial office. A judge may not be detained nor may criminal proceedings be instituted against him/her without the approval of the SJC.
The passing of laws
Courts in the Republic of Croatia are not authorized to propose laws. However, they have the possibility of initiating the proposal of laws by the legislative and executive powers, which are authorized to do so.
In practice the Government of the Republic of Croatia sends drafts and then proposals of laws as a rule to the Supreme Court of the Republic of Croatia (hereinafter: the Supreme Court) who may make proposals and comments on the material. If it is a draft law or other regulation establishing the competence of a court or another issue of importance for the work of the court or the discharging of judicial office, then the opinion on this draft or proposal is given by the general session of the Supreme Court of the Republic of Croatia, made up of all the judges of that Court. The State Budget which also includes funds for the work of the courts is adopted after the CP seeks the opinion of the Supreme Court.
The interpretation of regulations
Laws are as a rule interpreted by the courts. However if the law is unclear then it may be requested that the CP give a reliable interpretation of the law. These authentic interpretations are very rare. In most cases therefore, laws are interpreted by the courts within the framework of their jurisdiction. The legislative power may not request the courts to give an interpretation of the law. The courts however give an interpretation of the law as a rule through specific cases. If there is a difference in legal positions, case law is standardized at sessions of the court divisions and by decisions by the Supreme Court. The divisions are organizational units of a court, consisting of all the judges of that court who adjudicate in a certain legal field (for example the field of criminal or civil law and the like). Decisions rendered at sessions of the division are then binding for all chambers or single judges who are part of that division, and who then adjudicate in actual cases.
Supervision by the courts of the constitutionality of the law
In the Republic of Croatia there is a separate institution – the Constitutional Court of the Republic of Croatia. Although this is an institution which in its title has the word “court”, this institution is not part of the judicial power, but is a separate constitutional institution. The Constitutional Court of the Republic of Croatia, amongst other things, decides on the conformity of the law with the Constitution, or the conformity of other regulations with the Constitution and the law.
The courts render judgments on the basis of the Constitution and the law as well as on the basis of international agreements which are part of the legal order of the Republic of Croatia. If a court considers that law it should apply in proceedings is not in line with the Constitution, it will stay the proceedings and request the Supreme Court to submit a request to the Constitutional Court of the Republic of Croatia to review the constitutionality of the law. If the Supreme Court finds that there are no grounds for instituting proceedings before the Constitutional Court of the Republic of Croatia or if within 60 days from receiving the proposal, it does not submit a request for review of the constitutionality of the law, the lower court will apply the existing law. If however, the court finds another regulation in the proceedings, which it should apply, is not in line with the Constitution or law, it shall not apply that regulation and shall inform the Supreme Court accordingly.
The relationship between the judicial and executive powers
The executive power has limited possibility of supervision over the judicial power. This supervision relates exclusively to the work of the judicial administration, that is the executive power may not in any way interfere in actual proceedings which are within the jurisdiction of the courts, nor in decisions rendered in these proceedings. The authority of the highest body for the work of judicial administration is the ministry responsible for the work of the justice system. This authority includes, for example, the provision of material, financial, spatial and other conditions for the work of the courts, supervision of the financial and material business of the courts, care for the education and professional training of judges and other court personnel, consideration of petitions and complaints by citizens regarding the work of the courts, relating to the slowness of court proceedings, or the behavior of judges or other court workers towards parties during the proceedings or in the course of any other official task, supervision of the regularity of work in the court and so on. Therefore the executive power has no authority in relation to the essential function of the court, that is the function of adjudication.
Of course, through the provision of financial means the executive and legislative powers influence the status of the judicial power, for through better material conditions and the provision of a sufficient number of judges or other court personnel the executive and legislative powers may ensure that the judicial power also carries out its work more efficiently.
As has already been said, in the context of the legislative power, the judiciary has the possibility of initiating the proposal of laws by the executive power or may give comments or proposals on drafts or proposed laws which the executive power puts forward. The position of the judicial power is not formally binding for the executive and legislative powers, but they acknowledge it if there is a strong logical and legal argument.
Criminal jurisdiction
The State’s Attorney’s Office is an independent and autonomous judicial body, authorized and responsible to act against the perpetrators of criminal and other punishable acts, take legal action to protect the property of the Republic of Croatia and use legal means to protect the Constitution and the law. This body, therefore, is not a judicial power and has the status of a party in court. At the head of the State’s Attorney’s Office is the Chief State’s Attorney.
The functions of the State’s Attorney’s Office and the judiciary are thus separate. At the request of the State’s Attorney an investigation is carried out by investigative judges. Investigation is regulated as part of criminal proceedings by the rules which are part of the Criminal Procedure Act. The guarantee of independence of the investigative judges is equal to the guarantees for any other judge in the Republic of Croatia, which have already been mentioned in this material.
Since the police submit criminal reports against perpetrators of criminal offences to the State’s Attorney’s Office, it has the real possibility of directing the work of the police in that it demands that these reports be processed in such a factual and legal form that they enable the State’s Attorney’s Office to decide if it should charge the perpetrator of the criminal act and thus institute court proceedings. In this sense the work of the police is supervised by the State’s Attorney’s Office.
The management, financing and infrastructure of the courts
The work of judicial administration is organized by the Ministry of Justice of the Republic of Croatia. However, for the actual running of the work of court administration, the Ministry must turn to the president of the appropriate court. The work of court administration, carried out by the president of the court, covers the provisions of conditions for the regular work and business of the court. Thus the presidents of the courts take care of orderly and timely work in the courts, consider petitions and complaints by parties on the work of the court, organize professional work in terms of fulfilling the duties and the exercise of the rights of clerks and employees, take care of the professional training of judges, court advisors, court apprentices and other clerks and employees, and take care of the lawful financial and material business of the court etc.
Separately on the funding of the work of the courts
Funds for the work of the courts are provided by the State Budget of the Republic of Croatia, which is adopted at the end of the current calendar year for the following one. These funds also cover the means for the payment of judges’ salaries, the salaries of court clerks and employees and means for material expenditure and equipment and the like. The State Budget is adopted by the CP on the basis of a proposal by the Government of the Republic of Croatia. Therefore there is a serious functional dependence on the part of the judicial power in relation to the executive and legislative powers, for the executive, as the proposer and the legislative as the one adopting the laws, actually decide how much money will be provided for the work of the judicial power.
Judges’ salaries are determined by a separate law. This law attempts to bring judges’ salaries up to the level of salaries of functionaries of an appropriate level in the legislative and executive powers.
The salaries of clerks and employees are regulated by a separate law, which also applies to the salaries of officials and employees in state administration.
The budgets of the courts and their realization and lawful application are supervised by the Ministry of Justice. The presidents of the courts are also responsible for the material and financial business of the courts.
Determining the number of judges and other court staff
The number of judges is determined by the Minister of Justice on the basis of a proposal by the extended General Session of the Supreme Court of the Republic of Croatia.
Supervision of the employment of court clerks and employees is carried out by the Ministry of Justice, which approves the filling of vacancies or the opening of new work places for clerks.
The president of the court adopts an annual schedule for the work of judges and other court staff. This makes it possible to follow the principle that cases taken on by the courts are designated to judges on the basis of objective, professional criteria. The work of the other court staff in the court is managed by the president of the court.
Business and technical standards for the courts
There is a separate act – the Rules of the Court– which regulates the internal business of the courts. This act, which is adopted by the Minister of Justice, establishes the business and technical standards for the business of the court (for example the size of the court room, technical equipment, including computers etc.)
IT equipment is gradually being introduced into all courts. All judges have the possibility available of examining all publications where regulations are published. All judges are able to do this by looking at printed publications and partially by means of computers. Judges are also able to access case law, which the Supreme Court traditionally publishes in written form and for a few years now this case law has been partially available on the Internet. The introduction of new computer programs is being prepared at present and this will give computer access to all decisions by the Supreme Court for the general public. This program is being undertaken with the help of the European Commission.
The publication of court decisions
The Supreme Court has a long tradition of publishing court decision. These are publications, which give an opinion relating to those decisions which have proved contentious in practice and where a position is given in principle which is important for the application of regulations and case law. Decisions are not published which are of a technical nature or those which repeat opinions already published. This publication is issued in written form twice a year and is available to the public through the library network. It is also presented in its entirety on the Supreme Court web site. Access to the web site is free and open to the widest audience.
A special editorial board of Supreme Court justices decides which decisions will be published. The expenses of publishing are met by the Supreme Court of the Republic of Croatia from part of the funds provided to it from the State Budget.
Cooperation between the courts and professionals from other areas
The procedural rules of civil, criminal, misdemeanor, commercial, administrative and other branches of law allow for the collaboration of the courts with experts in other fields. Judges often use the opportunity for experts from other areas (medicine, traffic, forensics, finance and other expert witnesses) to give their opinion on non-legal issues.
Judges are not authorized to delegate individual parts of the investigation or decision making to these experts. However, judges are authorized and obliged to assess the value of their expert opinions, and this right also belongs to the parties, who may make comments on the findings and opinions of the expert witnesses. In these cases, the court primarily tries to remove any lack of clarity in the findings and opinion of the expert witnesses by hearing the witness again or hearing the witness before the court, and if it is not possible to clarify the question, then testimony may be sought from another, different expert witness.
2. INTERNAL INDEPENDENCE
The Constitution of the Republic of Croatia as the highest state act contains provisions which allow for the implementation of the principle of the independence of judges. These are the provisions: 1) the appointment and dismissal of judges, and their disciplinary responsibility 2) the permanence of judges’ office and 3) the immunity of judges.
Appointment, dismissal and disciplinary responsibility of judges
The Constitution of the Republic of Croatia provides that judges, in line with the Constitution and law, are appointed and dismissed and their disciplinary responsibility is determined by a separate body – the State Judicial Council (hereinafter: SJC). This body has eleven members who are appointed by the Croatian Parliament from the ranks of prominent judges, lawyers and university law professors. Seven members of this Council, that is the majority, are judges, where all the courts in the Republic of Croatia must be represented in terms of their type and instance. Two members of the SJC are university law professors and two are lawyers. The presidents of the courts may not be appointed members of the SJC. Representatives of the legislative or executive powers may not be chosen to be members of the SJC, nor may representatives of other state bodies, NGOs and the like.
The decision on the appointment of judges is final and immediately applicable. Thus the Constitution practically guarantees that the appointment and the dismissal of judges and their disciplinary responsibility is determined by people who are professionally linked, directly or indirectly precisely with the judicial profession.
The permanence of judges’ office
An important element and guarantee of the independence of judges is the fact that the Constitution of the Republic of Croatia prescribes that the judges’ office is permanent. The appointed judge, in the normal course of events, remains in office until his/her seventieth birthday. This is true for all judges regardless of the type or instance of court where they discharge their office. Exceptionally, when first appointed, a judge is appointed for five years. After the judge has been re-appointed he/she holds the office permanently, that is until his/her seventieth birthday.
The SJC decides on the disciplinary responsibility of judges for disciplinary offences committed in the course of their service as judges. A judge who is dissatisfied with the decision by the SJC has the possibility of appealing to the Constitutional Court of the Republic of Croatia.
In the first part of this material (external independence) we already wrote about the existence of special immunity of judges as one of the guarantees of their independence. We refer the reader to this part of the material.
Filling vacancies for judges and service advancement
In their careers judges may transfer to other types of court or to higher courts. All vacant positions for judges (regardless of the instance of the court) are advertised publicly and an invitation is sent to candidates who fulfill the legally prescribed conditions to apply.
In all higher courts there are separate judicial councils, who are elected by a secret ballot of all judges from the area of the court concerned. The judicial councils are a form of judicial self-government. These councils give their opinions on each candidate. These opinions and the opinion given by the Justice Committee of the Croatian Parliament are presented to the SJC who decides on the appointment of judges.
An important working element for judges are their salaries. There is more written about this in the first part of this paper (external independence). We therefore refer to that section of the study adding that the salaries of state’s attorneys, as a body which is not part of the judicial power, in the narrow sense of the term, are equal to the salaries of judges in relation to rank and the type of work done by the state’s attorneys.
The work of judges
The obligation of judges, in terms of quantity, to adjudicate a certain number of cases, is determined by a separate act adopted by the Minister competent for justice affairs upon the proposal of an extended general session of the Supreme Court. These criteria prescribe the number of cases one judge should adjudicate, bearing in mind an average of type and complexity of the work. The criteria are based on an assessment which is founded on the experience of work on certain type of cases over many years. The work of each judge is monitored statistically monthly, quarterly, half-annually and annually and it is assessed whether he/she has completed the volume of work prescribed by these criteria, with the assumption that he/she had an averagely weighted work load.
The work of judges is also monitored statistically in terms of quality, in that it is assessed how many decisions have gone to appeal or second instance courts for legal remedies which have been confirmed, quashed or amended.
Data on the work of the judges in terms of quality and quantity are presented to the SJC on application for promotion, but also during the regular assessment of judges regarding the execution of their judicial office.
The independence of judges in decision-making
When rendering decisions, judges are bound by the Constitution and the law, and international agreements, which are part of the legal order of the Republic of Croatia. Any form of influence on judicial decision-making is forbidden and especially: any form of use of public authority, means of public information, and in general public appearances to influence the course and outcome of court proceedings. Court decisions may be amended and quashed only by the court with jurisdiction for the case as prescribed by law.
Court decisions are rendered in the form of a judgment if the court is deciding on the merit, and in the form of a ruling if it is deciding on procedural issues. Exceptionally in special cases prescribed by law, a ruling may be used to decide on issues of merit. Court decisions as a rule have a statement of reasons, but this may be omitted if the parties so agree.
In the introduction to the judgment it is always stated who the judge is or which court chamber rendered the decision.
There are time limits within which court judgments must be written up and sent to the parties. The fact that the court oversteps that time limit is not a reason for the quashing of that case upon a legal remedy and remanding it. However in cases where the judge does not write or does not send off the judgment for a long time, this may be a reason for disciplinary action against him/her, or even for his/her dismissal from judicial office.
The independence of judges in the chamber and case law
In legal matters in the jurisdiction of first instance courts as a rule a single judge adjudicates (the principle of monocracy). The law determines in which cases s judgments are rendered by a chamber in first instance court. In some criminal cases lay judges may also take part in ruling – citizens who are not professional judges. In higher instance courts as a rule, judgments are made by a chamber, but as an exception a single judge may adjudicate in those proceedings.
When the court adjudicates in a chamber, the president of the chamber has the position of the first amongst equals and is not authorized to give any binding instructions to the other members. All members of the chamber are professional judges, and all, including therefore the president of the chamber, have the right to dissenting opinions.
In view of the various types of proceedings there are a variety of numbers of members of chambers who adjudicate in each case. We have already said that chambers are as a rule the form where decisions are rendered in second-instance courts. So in appeals against first-instance judgments rendered in civil and criminal cases, decisions are rendered by second instance courts as a rule by a chamber consisting of three professional judges. The chamber of the Supreme Court of the Republic of Croatia is also made up in the same way for criminal cases, when that court is adjudicating in the second instance. The chamber of the Supreme Court ruling in civil disputes upon a revision as an extraordinary legal remedy (third instance) is made up of five judges. Decisions are rendered on actual cases by these chambers.
As we have already mentioned the courts adjudicate on the basis of the Constitution and the law. Case law also has an important role, but not as a system of precedents. However decisions by higher courts are binding for lower instance courts by the strength of the legal argument, and therefore the effect is attained of the standardization of case law. A first instance court is not obliged to accept the legal position of the second instance court, but it is obliged to carry out all procedural actions and discuss all disputed issues pointed out by the second instance court in the decision by which the case was remanded. In some proceedings the lower instance court is also obliged to accept the legal position, but only in the case of the opinion of the Supreme Court. This obligation is found for example in the Civil Procedure Act.
In sessions of the court divisions which include several chambers in the same court, in a certain branches of court proceedings (for example civil or criminal), decisions are not made in actual cases, but rather a common position is found, which is binding for all chambers, if there is a conflict of legal opinions in the same factual or legal situation between two or more chambers. This is how the standardization of case law is reached. Positions accepted by the court divisions are then binding for all judges, or chambers of judges within that division. Positions are also binding if they are accepted by a majority of all the judges in the division.
The judicial code of ethics
There is no code of judicial ethics but there are special rules in the Courts Act which in a general way regulate the behavior of judges. It is prescribed that a judge must behave in such a way as not to harm his/her reputation and the reputation of the judicial power, and so as not to bring into question his/her neutrality and independence in adjudication and the independence of the judicial power. A judge may not be a member of any political party nor take part in their activities. A judge may not be engaged in work as a lawyer or notary public, or work as a member of the management or supervisory board of a trading company or other legal person founded for the purpose of making a profit. A judge may not carry out any other service or work which may influence his/her independence, neutrality or autonomy or reduce his/her social standing or which is otherwise incompatible with the discharging of a judicial office. These are just some of the rules.
Judges’ associations
There is one judges’ association in the Republic of Croatia of which some of the Croatian judges are members. The remaining judges are not members of this association. This association has its own internal judicial code of ethics, but there are no sanctions for violations of this code.
Disciplinary responsibility
We have already mentioned in the context of the principles ensuring the independence of judges that there is the possibility of disciplinary responsibility for judges. Decisions are made in this context by a special state body – the SJC, whose make-up has already been mentioned in this paper. There we pointed out that it is mainly made up of judges, and in terms of what could be called “external” members, there are only representatives of the Croatian Association of Practicing Attorneys and the law faculties in Croatia. There are therefore in the State Judicial Council no politicians whether from the executive or the legislative power, and disciplinary responsibility of judges is actually decided on by legal professionals who are directly or indirectly linked to the judicial power.
Proceedings against a judge may be instituted by the president of his/her court, the president of a higher court, the minister of justice or the president of the Supreme Court. Judges must always be given the opportunity for defense and they also have the right to use a defense attorney.
The following disciplinary punishments may be imposed for disciplinary offences committed: a reprimand, a monetary fine of up to one third of the salary earned in the previous month over no more than six months or dismissal from duty. Of course, dismissal from duty may only be imposed if the disciplinary offence was committed under particularly aggravated circumstances.
Judges may also be suspended.
A judge who is dissatisfied with a decision in disciplinary proceedings may lodge an appeal to the Constitutional Court of the Republic of Croatia.
The relationship with the public and the media
Court hearings are public and judgments are announced publicly in the name of the Republic of Croatia. The public may be excluded from the entire or part of the hearing only in exceptional circumstances for reasons which are necessary in a democratic society in the interests of morals, public order or state security, especially if minors are on trial, or for the protection of the private life of the parties or in marital disputes and the like.
In the first part of this paper (external independence) we already mentioned that the Supreme Court has a long tradition of many years of publishing case law. We refer to that part of the paper.
The principle of public access makes it possible for the public media to be present at all court hearings, including the pronouncement of the judgment. There are no legal obligations to publicize the date of hearings, however, the media may obtain all this information from the relevant court services. The Supreme Court has introduced the practice that in cases where public second or third instance hearings are being held, it informs the public of this through its web site.
Journalists may follow the hearing from the beginning to the conclusion of the trial as well as sessions of the court chambers in second or third instances, which are public sessions, without any limitations and may inform the public about them. Limitations only relate to the use of technical equipment, cameras, sound recording equipment or filming for television.
In other words, in courtrooms it is permitted to take photographs with the permission of the competent president of the court, and to make sound or television recordings with the approval of the president of the Supreme Court. The rules about sound or television recording of court hearings as a rule are applied such that permission is granted to record the pronouncement of the court judgment in cases which have aroused particular interest in public.
Decisions by courts upon legal remedies (appeals, revisions and the like) are rendered in sessions of chambers which are not open to the public. However all decisions become available to the public immediately after they are sent from the higher instance court which ruled on the legal remedy.
As a rule the president of the court or judges who are authorized by him/her communicate with journalists.
Judges, whilst maintaining their personal dignity and the dignity of their office, may appear in the media, give interviews, write, take part in various forms of radio or television programs etc. They must clearly state if they are appearing only in their own name or in the name of the institution where they work.
All decisions are available to the media after they have been written and sent from the court, whether to a lower instance court or to the parties.
President of the Supreme Court of the Republic of Croatia
IVICA CRNIĆ, L.L.B.