Questionnaire on the Independence and Efficiency of administrative Justice : Croatia

I./ Personal Independence of the administrative Judge: 

Indicate the ways in which judges are selected/appointed for/to administrative Justice as well as the terms and nature of the judicial selection/appointment:

Describe the selection/appointment procedure that is applied in your country.

There is an Act, where selection and appointment of judges is regulated. The judges can be appointed and relieved of duty by the National Judicial Council, in conformity with the Constitution and the law, which Council also decide on all maters concerning their disciplinary responsibilities. In the process of the appointment and relief of judges the National Judicial Council obtains the opinion of the authorised committee of the Croatian Parliament.

1.2.What are the terms of this procedure?

Administrative Court is the only court for administrative matters in the Republic of Croatia. Administrative judges have to fulfil the conditions which are required for the higher court judges. The requirements are: Croatian citizenship, legal degree, bar (law) exam, and personal and work characteristics, needed for attending to the position, previous work as judge or other judicial functionary for at least eight years or at least twelve years of work experience in the field of law after passing bar (law) exam.

1.3. Is there specific professional background such as previous work record in the administration or general legal training included?

Yes, there is.

1.4.What are the possible contents examined during this procedure?

1.5.Who meets the decisions in the course of the selection/appointment procedure and who selects and appoints the aforementioned decision –makers?

The National Judicial Council consists of eleven members elected by the Croatian Parliament in conformity with law from among notable seven judges, two attorneys-at-law and two University professors of law. Members of the National Judicial Council are elected for a four-year term and no one may be a member of the National Judicial Council for more than two subsequent terms. The jurisdiction and proceedings of the National Judicial Council are regulated by law.

Does the law provide for judicial remedies against decisions concerning appointment/selection?

Yes, it does. It’s possible to file a lawsuit before the Administrative Court and after the decision of Administrative Court right to appeal to the Constitutional Court.

1.7.Does there exist any difference in the way the selection/appointment of judges of the civil/penal courts takes place?

No, it is the same procedure.

Is it possible for “external candidates” to be appointed as judges at different court levels and instances?

Yes, it is.

Are those legal provisions concerning the ways of selection/appointment of judges constitutionally entrenched?

Yes, but only in general (article 123. in the Constitution of Croatia).

Describe in brief the conditions of service and tenure (security of tenure, suspension and removal, transfers etc.) of the judges:

Is the term of judicial appointment for life?

Yes, it is with the exception at the assuming of judicial duty for the first time, when judges are appointed for five-year term but after the renewal of the appointment, the judges assumes his duty as permanent.

Is it possible to extent the term of service of judges beyond retirement age? In this case who has the power to take the decision?

Administrative judges have to retire by the age of 70.

Is it possible to appoint temporary judges?

No, it is not possible.

Is it possible for the judge to be removed or transferred and under what specific terms?

No, judge can not be transferred against his will except in case the Court is abolished or reorganized in conformity with law.

1.5. Where does the power of removing or transferring judges from one office to another lie?

In the Court act.

Is it possible to transfer between the different divisions and types of courts?

Yes, it is possible.

1.3. Is it possible to transfer to government administration and back?

Yes, it is possible to transfer only to Ministry of Justice.

Does a transfer to the administration have a career-promoting effect?

I don’t think so.

Is incompetence a ground for removal of a judge from the bench?

Yes, it is.

Financial security (salaries, remunerations, pensions etc.)

Who decides about judges’ salaries?

The salaries of judges are determined by law.

In what way and under what conditions are the salaries of judges increased? Are they accompanied by annual cost-of-living adjustments?

They are increased only by law. But annual cost-of-living adjustments are possible.

Is there a need for executive approval or executive decision to initiate the increase?

Yes.

Is it possible for the judges to initiate judicial proceedings against the State with regard to their remuneration and which are the competent courts in this case?

Yes.

Is there a uniform salary scheme for all courts, divisions and types?

Yes.

Career prospects (promotions etc.)

Describe briefly the ways in which the promotions of judges are made. What kind of procedures are to be applied in this context?

See above (I – 1.1.).

Indicate the competent body for the promotions and the criteria applied thereto.

See above.

Are judges of the administrative courts promoted to the Supreme Administrative Court and under what conditions (seniority etc.)?

See above.

Can judges accept any government assignment after retirement?

Yes, they can.

Standards of conduct (professional and service Code, public activities, law-related activities etc.)

Can a judge be involved in law-related activities (arbitration, law practice, writing books)?

Yes.

Can a judge be involved in business activities?

No.

Is the judge entitled to sideline employment?

No.

Is there a Code of conduct of judicial behaviour?

Yes.

Is there a Commission on Judicial Conduct or any other body to supervise the behaviour of a judge?

Yes, National Judicial Council.

Describe the restrictions - if there are any - on judges’ right to express their views?

They are not allowed to give information about the legal cases before the final decision and they are not allowed to be members of the bodies of political parties.

Inspection of judges and disciplinary proceedings

Who is in charge of the inspection of judges and in what way is this inspection conducted?

There is an inspection of judge’s work (quality and quantity), in charge of which is the president of the court, and the National Judicial Council.

Are there specific criteria for the evaluation of the performance of judges?

Not yet, but we are preparing the Metod for evaluation.

Who holds the legal power to initiate disciplinary proceedings against the judge?

The proposal for the inspection of the judge’s work can be given by the Minister of Justice, and president of the court.

Who decides the disciplinary tribunal and its composition? Is it permanent or ad hoc?

See obove, National Judicial Council. Is it permanent body.

Is there a legal remedy against the decisions of the disciplinary body provided for by law?

Yes, there is the possibility of the appeal against the decision before the Constitutional Court.

Is there a special procedure for investigating and prosecuting a judge?

Yes.

II./ Functional and Institutional Independence of administrative jurisdiction:

II.a./ General aspects

Separation of powers and judicial independence

Indicate who is responsible for the central administration of administrative jurisdiction

Ministry of Justice.

Individual and collective independence of the judiciary

There is the separation of powers in Croatia. The judicial power is exercised by the independent courts.

Is it possible for sanctions (of any kind) to be imposed on a judge based upon the content of his/her decision?

No.

Can a judge face disciplinary charges solely on the basis of the substance of his/her ruling? Is this the case when a judge declines to follow a supreme court’s decision?

No.

Do you think that accountability of judges threatens judicial independence?

No, as long as there is the separation of powers and judges can freely make his/her own decisions, based only on law.

Can a judge be held liable in civil actions for his/her judicial acts (e.g. be sued for damages for actions taken in his/her judicial capacity)?

No.

Are judges immune from prosecution in other courts for their judicial acts?

Yes.

Can criminal charges be brought against a judge for actions on his/her duties?

Yes.

Do judges face sanctions for “decisional conducts”?

No.

Judicial administration at the Court level (division of work among judges and assignment of cases etc.)

Is the division of work among judges and the assignment of cases to each judge or panel done according to a predetermined rigid plan or is it flexible and may be changed easily?

There is a predetermined plan (order of the first letter of the name of judges), but this plan is always to the certain extent flexible, for urgent cases.

Who is in charge of case assignment?

The president of the court.

Self - administration of justice

Is judicial administration effected through independent judicial self-governance?

The president of every court is in charge of judicial administration.

Describe briefly how the governing body/committee is elected?

Is there any restriction for the members of the above body to participate in other syndicalistic bodies?

Human, financial and material resources necessary for the performance of judicial functions

Who is responsible for the administrative staff employed in the courts?

The president of court and court secretary, according to the plan, which has to be approved by the Ministry of Justice.

Who is competent to make available the necessary funds for the performance of justice?

The Ministry of Justice.

Who has the power to execute and spend the budgetary allocations?

The president of the court.

II.b./ The relation between administrative jurisdiction and other powers:

Relations with the executive (the influence of the Administration on the judge etc.)

Have there been cases of executive pressure on judges in any form?

No.

Can judges be members of the Government?

No, but a judge can be elected as a ministry of justice, when the judicial function is inactive for the time of the tenure.

Is it allowed for judges to participate in administrative bodies having decisive or consultative competences?

No.

Do the administrative courts have the power to challenge administrative acts of general character (presidential decrees etc.)?

No.

Relations with the legislature (retroactive legislative reversals of cases etc.)

Can the legislature override a decision of a court if they disagree with the way the latter has applied or interpreted a law?

No.

Have there been retroactive legislative reversals of court decisions?

No.

Has there been legislation abolishing courts with results of statutory removal of judges and if so, how was it received?

No.

Pending cases?

No.

Can judges be members of the legislature?

No.

Do the administrative courts have the power to challenge laws?

Yes, they can challenge them before Constitutional Court.

Interest representation of administrative judges

Are judges organised in associations for furthering their rights and interests?

Yes, there is an Association of Judges.

Are there separate professional representations for administrative judges, or a joint association of judges?

The Association of Judges represents the interests of all the judges.

What are the specific activities of the aforesaid association? Describe them in brief.

Representation of the interests of the judges regarding their status, occasional organisation of training, activities regarding the definition of Code of Conduct.

Do judges have the right to strike or to hold a demonstration?

The right to strike and to hold a demonstration is restricted by the law.

II.c./ The relation between administrative jurisdiction and the society:

The administrative judge and the media scrutiny (the press, the judiciary and the courts, criticism of judicial decisions etc.)

Is criticism of judges, judicial decisions and judicial conduct in the press existent, frequent, rare? What are the relevant grounds for this? Could you give major examples?

Rare, in some cases. The reasons are usually the decisions by the courts which seem to be wrong or untimely in the view of the general public or the reporters.

Are trials open to T.V.?

No.

Do you think that press reporting and commenting on judges, courts, judicial decisions and matters pending before the courts poses a challenge to judicial independence?

No.

The administrative judge and the public opinion

Do you think that a judge’s engagement in politics or speaking his/her mind in favour of a political party compromises the public confidence in the judiciary?

Yes, especially in the field of administrative.

Are there institutions that favour strong public opinion in defence of the independence of the judiciary?

No.

Judges and politics

Is it allowed for judges to become member of political parties?

No, it is forbidden by the Constitution.

Are there any major restrictions for judges with regard to their political activities? What are the consequences in case of breach?

See above.

Are there any other restrictions for judges as far as their public activity is concerned?

It is forbidden to express opinions about pending court cases.

Have there been cases where political leaders attacked the judges and criticised their decisions?

Rare, thought the media.

III./ Efficiency in the internal organisation of an administrative jurisdiction.

The judge and his work

Describe briefly the kind of the initial training and the qualifications of an administrative judge prescribed by law and his further education and/or formation, inter alia in European law, emphasizing more particularly the aspects which might help the judge to improve the efficiency of administrative justice.

The judges have a training organized by judicial Academy. European low is included in these programmes.

Do you think that a higher salary paid to the judge and, more specifically, other (material) advantages which may be granted to him in consideration of the output might help to improve the efficiency of administrative justice?

Yes, in a very direct way, especially the Administrative Court, can’t compete very well with the current salaries.

Please indicate the number of administrative judges in your country and compare it to the population being under their jurisdiction (an average number can be indicated per country).

Croatia has 4 and a half millions inhabitants and 33 administrative judges, on only one Administrative Court.

Please indicate the number of legal or other assistants (including clerks, secretaries …) working for the administrative jurisdictions, indicating more particularly the average number per judge working at an administrative court.

We have no legal assistant, but we have court advisers.

Describe briefly the working conditions of an administrative judge in your country, emphasizing more particularly the technical means which are at his/her disposal, as well as legal or other assistants helping him/her in his/her duties, his/her access to libraries and data bases, access to internet and so on…

Regarding technical means: computer with access to internet and various databases for research and more or less well equipped library at the disposal for judges and the others employees.

Describe briefly the internal working regulations of an administrative court and more particularly the way in which the work is distributed among the judges, the person in charge of the distribution of the work to be done by the respective judge and of the control of his/her work, indicating inter alia the criteria according to which the way of distribution is decided as well as the criteria according to which the work of the administrative judge is controlled, as well as the possible sanctions which may be taken against the judge who does not fulfil the legal or internal requirements concerning the quality of his/her work. Describe in this context internal control procedures (if there are any).

The work is distributed according to pre-determined rules by a computer programme. 
For distribution of work: see 3.2

The jurisdictional procedures

Describe briefly the access to administrative justice, indicating more particularly whether the complaint or file has to be introduced by a lawyer or any other professional and the conditions under which the plaintiffs may have access to legal assistance. Can you also indicate whether the procedures are accomplished only on a written basis or whether also oral hearings take place, indicating in which cases such oral hearings are organised and the persons who, at these occasions, are allowed to make oral submissions to the court.

The initial complaint may be filed by the parties themselves. Oral hearing are not prescribed by the law as a principle.

Describe briefly the different types of procedures which can be introduced at an administrative court, insisting inter alia on the differences existing between those procedures.

A plaintiff can file a complaint against an administrative decision affecting his or her rights, and complaint against individual act or decision of an institution affecting his or her constitutional rights. There are no pronounced differences between the procedures following the different kinds of complaints.

Describe briefly the different steps of the procedures to be followed at an administrative court of your country, starting with the date the file is introduced until the date the judgment is pronounced, insisting more particularly on the deadlines which may have to be respected by the parties in order to introduce written notices, briefs, pleadings, statements as well as on the deadlines to be respected by the judge to pronounce the judgment.

A defendant has a right to reply to the complaint in not more than 30 days (less in some cases). If a third party could be affected by the decision, they are given a status of the party in the procedure and notified of their rights. After that, the council of three judges decide about case and issued decision within a reasonable term.

Describe briefly the internal organisation of an administrative court, and indicate whether the judges are working in chambers or if they are acting as individual judges, as well as the criteria according to which a case is dealt with either by a chamber or by an individual judge.

The court is divided into three departments, specialising in individual legal fields. In principle, the court decides in councils of 3 judges.

Which kind of procedures do apply in case an urgent matter of any kind is introduced with an administrative court? Indicate also what kind of decisions may be taken by the judge dealing with this kind of urgent matters.What kind of interim measures or measures of suspensive effect may be granted by your Court upon the receipt of a complaint? 
a) suspension of the administrative act complained against, 
aa) becomes effective when served to the parties, 
bb) may also have retroactive effect, 
b) my Court may order any interim measure deemed necessary when the interests 
of justice so require.

What are the legal criteria for a decision to give an order of suspensive effect or 
order an interim measure?
a) Does the prospective outcome of the proceedings have any relevance? 
b) Please give a short description of the content of the legal provisions concerned.

An urgent case is marked as such and immediately forwarded to a judge.

Indicate the types of control the administrative court may exercise over the activities of the administration or over the decisions taken by it: is it a control only of the legality of its decisions or can the judge also control whether the discretion was used by the authority in the spirit of the law? Is the judge allowed to take a decision instead of the administrative authority? Do there exist other types of control procedures?

There exist all three possibilities.

Indicate the delays of the procedures introduced with an administrative court, starting from the date of introduction of a complaint until the date the judgment is pronounced (average delays).

Approx. 2 and half years in average cases. Urgent cases are dealt on different way and complicated cases may take longer.

Is there any remedy against undue length of the proceedings for the parties of the roceeding before courts? Is this

a) a remedy provided by law (please give a quotation of the legal provision)

Yes, there is a before the supreme Court of the Republic of Croatia.

b) a remedy of informal character (please give a short indication of its content).

What may be the result of such a remedy?

This possibility doesn’t exist.

a) actual acceleration of an individual proceeding
Yes.
b) payment of just satisfaction 
Yes.
c)reduction of a penalty imposed
No.
d)disciplinary measures against individual judges
No.

Which authority is responsible to deal with such a remedy?

a) the president of the Court
See above.
b) a supervising judicial body 
No.
c) an administrative authority
No.

Which kind of means are at the disposal of the administrative judge (or the parties) in order to provide for a correct execution (enforcement) of the judgment. Does the judge have the possibility to give injunctions to the administration? Do there exist specific procedures which the parties may use in case the administration does not voluntarily execute the judgments?

The administrative judge has no control over the execution of the decision.

Which kind of new technologies are at the disposal of the administrative judge and do the procedures to be followed at the administrative court provide for the possibility to use standard forms or electronic transmittal techniques (for example, are the parties allowed to introduce the briefs by way of mail or other electronic transmittal systems)?

For use of IT, see above at III. – 1.5.

2.10 Do the administrative courts in your country possess central computer systems to which all judges are linked, and comprising inter alia data bases, general information, laws, procedural acts, access to electronic files and so on

Yes, see above.

Indicate whether you think that the facilities used by the administrative courts and the means put at the disposal of these courts by the State are appropriate and, if this is not the case, indicate the problems you have noted in this context and the possibilities to remedy.

Facilities are generally appropriate.

Indicate the total amount of money spent by the State to ensure the functioning of administrative justice, compared to the total amount of the State budget

Do there exist alternatives to the contentious proceedings, for example mediation, arbitration procedure and so on in your country?

Not in administrative justice.

Which kind of effective legal remedies can be used against a judgment of an administrative court of first instance?

As a principle, there is no regular legal remedy. See above.

IV. Efficiency in the relations of an administrative jurisdiction towards third parties

Access by the public or the parties to the information held by the administrative courts

Do the administrative courts in your country have a person in charge of the relations with the press (press speaker)?

Yes.

Do the administrative courts in your country prepare annual reports about their activities? Is this report available to the public? To whom/ or to which body this report is it addressed?

Yes. The report is available to the Ministry of Justice and the Supreme Court.

Does there exist a possibility to access by internet or by any other means the judgments pronounced by the administrative courts and other documents which might be relevant for the public/parties?

Selected decisions are available on the internet.

Do the parties of the case pending at an administrative court have the possibility to get information, by electronic or other means, about their file and the state of the proceedings

Yes, but not electronically.

Do the administrative courts of your country have the possibility to exchange information or experience with other national or international courts or with courts situated in other countries and, if this is the case, could you give more information about this kind of exchanges?

There are no restrictions for such exchange. In practice, it mostly takes place through participation of individual judges in international seminars and training events.

2) Control of the activities of the administrative courts

2.1 Do the administrative courts prepare statistics about affairs settled during the judicial year, about the stock of affairs pending and about the number of affairs dealt with by individual judges?

Yes.

2.2 Do the administrative courts possess electronic systems to ensure the follow-up of the affairs pending (e.g. electronic file system…)?

Yes.

2.3 In your country, are there mutual or internal evaluations (on periodical basis) of the quantity and quality of the work to be done by the court? Which is the body which is competent to prepare this kind of evaluations, are they done by the court itself or by any other bodies, authorities or courts? Do there exist control procedures of the judicial work done by the administrative judges and, if this is the case, by which kind of authorities (national or international) are these procedures accomplished?

Such evaluations are a part of the annual report witch is given by president of Court.

2.4 Which kind of sanctions may be taken against individual judges in case of misbehaviour or in case the work to be done by judges has not been delivered in certain delays

Disciplinary procedures, which can be followed by sanctions ranging from reduction of salary to dismissal from the office.

2.5 Do there exist compensation procedures in case of errors committed by the court or individual judges or in case of delays in the proceedings? If this is the case, could you briefly describe the kind of compensation procedures which may be used by the victims of such errors or delays.

There are no special compensation procedures; the usual civil procedure has to be used.

2.6 Do there exist possibilities for the public or the parties to introduce complaints against the way the administrative courts work

Yes, to the president of the court or to the Ministry of Justice.

2.7 Do there exist studies about the feed-back of “customers” (in a broad sense of meaning) of administrative justice, on the bases of inquiries made among the public, the parties or their lawyers, about the functioning of the court?

No.

V./ Conclusion

Could you indicate, according to your opinion, which are the factors (concerning organisation or rules of process) that cause malfunctions in the administrative judicial system in your country?

In my opinion in Croatia is necessary to introduce two degrees of administrative jurisdiction. First instance of the Administrative Court and Supreme Administrative Court.

Could you indicate which, in your opinion, might be possible remedies?

Have you noted whether effective measures have been introduced in recent times to improve the system in your country?

Reform process is starting in Croatia and new General Administrative Act is going to force till the and of this year and after that new Act on Administrative Dispute will be make. The actual results remain to be seen.