Croatia: A Work in Progress

Tuesday, 2 August, 2005

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Anna McTaggart

Years into a government programme to clean up Croatia's courts, the judicial system has improved, but the country's corrupt and unprofessional cadre of judges continues to hamper serious reform and block the road to Europe.

Though freer from political influence than in the past, the majority of judges in Croatia remain a conservative and poorly-educated group, unfamiliar with the ethics and practices of their European colleagues.

Complicating matters is a shortage of funding for reforms and a lack of motivation by some politicians to dig below the surface and deal with problem judges.

Not surprisingly, public confidence in the system is non-existent with about 80 per cent of Croatians surveyed recently by the NGO Transparency International saying the judiciary was the most corrupt government institution.

"The judiciary has lost its credibility and the trust of the people," said Josip Kregar, professor at the Zagreb University law school.

Cases like that of Supetar municipal court judge Ivana Domic, who in June was stripped of her immunity and now faces numerous criminal charges relating to allegations of real estate fraud on the popular holiday island of Brac, have only added to the public perception that judges are dishonest.

As have provincial court judges who are so easily influenced by those in power that people needing legal advice are forced to call in big city lawyers like Dafinka Vecerina to help with minor cases. She said her practice often represents clients in small town courts who hope the presence of a lawyer from Zagreb will force judges to be more fair and objective in their judgements.

"People are convinced the judges could easily hand down a sentence to their detriment under the influence of the local authorities," said Vecerina.

International organisations, are also unhappy, complaining of persistent bias against ethnic Serbs on trial in Croatian courts, with the OSCE saying in November 2004 that the "national origin of defendants and victims continued to have an impact on the adjudication of domestic war crimes proceedings".

Confidence in the judiciary both at home and abroad is undermined further by a giant backlog of 1.3 million cases awaiting verdicts, some of which have been dragging through the courts for more than 40 years.

Even the justice minister, Vesna Skare Ozbolt, described the logjam as a "horrifying" state of affairs. The European Court of Human Rights has sanctioned Croatia repeatedly for abusing its citizens' right to a fair trial, while the EU blames some of the backlog on the number of issues brought before the courts that could be decided by other means.

Though the list of problems is long, there is some political will to tackle the issues.

New laws have been adopted covering the education of judges and the redistribution of their duties to reduce their administrative burden. Projects funded from both the state budget and by the World Bank, the EU and others have been implemented, with the restructuring of the massively overburdened Zagreb municipal court among the biggest. Elsewhere, there have been land registry reforms and money spent on upgrading court houses and on new computers and equipment

But when it comes to the impact of these changes on the quality of the judiciary, analysts are not entirely happy with the results. They say too many simply focus on improving infrastructure and technology, not on reforming the judges themselves.

"This justice minister said 'let’s focus on the technical, since the courts are really in bad shape, then let's talk about other things. Let’s give judges tools first and then teach them how to use them'," said law reform activist Drazen Komarica.

Komarica believes the decision to deal with judicial restructuring first through visible, physical projects may have been determined by the need to show political results to the electorate and the EU.

"Each minister has a mandate of four years. How much can you do in that time? Changing the technical stuff is much easier," he told Balkan Crisis Report, BCR.

Kristie Evenson, director of Freedom House Europe, agrees structural reforms are "politically safer" than a complete overhaul. "The judiciary was the core of the 1990s institutional structure, key in how power was built by allowing flawed privatisation and selectively prosecuting war crimes," she said.

While judges appointed during the Communist era have largely been purged, their replacements were left in place when the authoritarian government of the 1990s lost out to the reform-minded social democrats in 2000.

Many analysts are particularly critical of the lack of serious action by that government and the one that replaced it in 2003 in rooting out and punishing those who are guilty of malpractice or who are seriously incompetent in carrying out their duties.

The State Judicial Council, DSV, a body of seven judges, two attorneys and two law professors, is in charge of discipline as well as appointing judges suggested by judicial councils formed in ordinary courts. DSV members are chosen by parliament after receiving nominations from their respective professions.

Judges can be removed for abuse of position, failure to perform duties or negligent performance, causing disruption of the court's operation, violation of official secrets or otherwise damaging the court's reputation. They can also be sacked for not performing well enough in relation to targets on reducing delays and backlogs.

According to the EU, however, "the evaluation of the performance of judges by the State Judicial Council remains largely theoretical ... there have only been a few decisions ...in disciplinary proceedings against judges".

The head of the Judges' Association, a professional organisation of judges separate from the DSV, defended the DSV.

"Examples show that it works," said Djuro Sessa. "Sometimes it is slow, especially for the public and the media, but judges also have the right to a fair trial."

A few cases, however, have raised serious concerns. Skare-Ozbolt wrote in an open letter to the DSV of her dissatisfaction about delays in how it processed three serious complaints against judges, each involving financial fraud, one of which has been pending since October 2001.

One of these was the Brac case involving municipal court judge Ivana Domic. According to international observers, it took huge media pressure before the county court president initiated proceedings and reported Domic, despite numerous accusations of wrongdoing on her part. They said the DSV was then slow to act in stripping Domic of her immunity so she could face criminal charges already brought against her by the state attorney.

There are legislative proposals in the works to cut the number of non-judges on the DSV panel, reduce public access to its disciplinary hearings and allow three-member committees to prepare and propose decisions, leaving just the final decision to the overall body.

Though judges say these changes would speed up the work of the DSV, parliament has already rejected changing the makeup of the panel, though it could still pass the other amendments.

But it isn't all doom and gloom, and there have been some improvements.

One reform recently introduced which could contribute to better judicial accountability is the Judges' Web - an online database accessible to the public which lists all judicial decisions and should bring more transparency to the system.

Currently, only the Supreme Court publishes limited decisions online.

"After sustained lobbying for five years, it has finally been adopted as part of the national judicial reform strategy," said Judges' Web founder Drazen Komarica.

Judges' Web is hampered, however, by the fact it relies on voluntary contributions from judges. No verbatim transcripts of court proceedings exist in Croatia. Instead, the judge instructs the court reporter what to write down.

"For the sake of transparency, it is crucial that ordinary people can see what they want to see, not what judges want them to see," said Sinisa Rodin, a professor of public and EU law at Zagreb University.

But Komarica insists the Judges' Web still represents significant progress, since material can be submitted directly, and anonymously, without having to go through the court president.

"We hope to create a critical mass," said Komarica. "As good judges get involved, more will jump on, especially younger judges."

At the moment, the quality of justice in Croatia is still too often undermined by bad legal decisions with judgements in similar types of cases varying wildly because of poor legal interpretations by judges.

Judge training, therefore, is key to the government's strategy of creating a better- qualified cadre and to that end it opened a new Judicial Academy this year paid for by the EU CARDS fund for southeast European development.

The academy consists of regional training centres where “trained trainers” conduct one-day workshops, acting as tutors to their colleagues.

Wolgang Rusch, the German heading the academy, told BCR the centre was strongly supported by the ministry of justice, which "put it to the top of its list of priorities".

However, the academy has already been criticised, with Sinisa Rodin describing its approach as "circular", since it uses the same people over and over, who "describe new legal developments, but have few methods to help judges interpret those developments".

The academy also only deals with improving the education of existing judges, rather than teaching law students and judicial apprentices.

Rusch admitted there was an urgent need to work on apprenticeships, where “there is nothing to improve, since there is no system at all”, but that limited resources meant they had to start somewhere.

However, Eric Frye, an expert in Eastern European law reform at the American Bar Association, believes it is natural for judges to be trained first since they have to implement the large number of new laws being passed to take Croatia through transition to the EU.

The workshops are voluntary but Rusch insists this isn't problematic, saying they usually have more applicants for each course than they can accept.

When asked how the academy ensured the most problematic judges would be trained, he said that "since all judges are under pressure to reduce the backlog of cases, they are ready to come to workshops where they get practical help on how to do so".

Rusch admitted it would be difficult to change "50 years with no tradition of free debate and discussion between judges and scholars", which is a precondition for legal development.

"There is still a very strong reluctance from judges and professors to work together," he said. "Judges think professors are abstract, and professors think judges are stupid."

This means far too many referrals to the parliament and Supreme Court, and numerous appeals on the basis of wrong decisions.

Wherever a judge is in doubt, he said, "the traditional method is to ask for an ... interpretation by parliament or ask the Supreme Court" - slowing down the judicial process and adding to the backlog.

Rusch suggested the government do more to support and fund the creation of regular, accessible legal journals, since currently judges don't have timely access to publications that provide information on changes in the law and practice.

"It is a very serious problem that court decisions are not automatically published," he said. "It has a negative impact on judges' ways of reasoning. Since no one sees their reasoning, they don't take it seriously, and so they are not experienced in formulating good decisions."

Judges complain that demands to meet case quotas and general criticisms of poor professional standards are not entirely fair.

They say in order to improve the quality of their work, they need more day-to-day support from the justice system along with better working conditions and more understanding, without which they'll never live up to the demands.

However, they have been slow in taking responsibility to self-regulate. Though the Judges' Association now has a code of ethics it is not binding and membership of the association is voluntary.

"There's a need to popularise self-discipline and transparency," said Kristie Evenson.

Ivan Crnic, outgoing president of the Supreme Court, believes much of the success or failure of the reform project is in the hands of the judges themselves. He said there will always be attempts to meddle in judicial affairs, but "to what an extent the judiciary will allow them to interfere with their work ... depends on judges themselves".

Anna McTaggart is regional director of BIRN. Drago Hedl, a regular BCR correspondent, contributed to this report. BIRN is a localised IWPR project.