[ccje2004/docs/CCJE(2004)12e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
the delegation of Croatia
A. ACCESS TO JUSTICE
1. Not in particular. So far, the judiciary and the Ministry of Justice have not undertaken any essential measures aimed at informing the public more broadly and comprehensively about the functioning of the judiciary. Both the Media Act and the Act on the Access to Information, recently adopted, prescribe that all the authorities, including the judiciary, have the duty to inform the public and the media of their work or of individual segments of their work fully and without delay. As regards the courts, this role of providing information is carried out by court presidents or by judges specially authorized for this function by them, to be a form of court spokesperson.
2. The court fees have been essentially decreased and the circle of persons who, on the basis of their status, financial situation or type of dispute (for example in labor disputes; paternity or maternity disputes, etc.) have been exempted from the payment of court fees, has been liberalized and expanded. The amendments to the Civil Procedure Act provide for the possibility of completing the proceedings and rendering judgment without holding a hearing.
A party in civil contentious proceedings may act as a pro se litigant, or may be represented by a close relative or an employee, in the case of legal persons. In criminal proceedings defense counsel is not mandatory for certain offences, and if it is mandatory to be represented by an attorney at law, and the defendant fails to hire one, the court appoints one ex officio.
3. The issue of legal aid is regulated such that a person who does not have sufficient financial means to hire an attorney to represent him or her before the court has the right to apply to the Bar Association, which will provide pro bono representation by an attorney for that party.
For the party to be able to realize this right, he or she must also be receiving some form of social welfare assistance from the state.
It is at the sole discretion of the Bar Association to decide whether or not they will grant this right to the person who applies.
Courts do not offer legal aid to parties.
In some types of proceedings (for example in family disputes, paternity disputes) the costs of expert witness testimony are paid from the budget of the court.
Under the Civil Procedure Act parties may request to be exempted from the payment of court costs if, due to their financial situation, the payment of the costs would be harmful for their maintenance and for the maintenance of their family. This request is decided on by the judge who is conducting the proceedings, and counsel is appointed by the court to this party free of charge.
4. Conditional fee agreements („CFAs“) are not prohibited or specially allowed, but are frequent, especially in disputes against insurance companies.
The institution of legal costs insurance exists only in a limited form, if one of the parties is a foreign national and if no reciprocity exists.
There is no institution of fixed costs and accordingly the parties are motivated to litigate without delay and with the minimum of procedural actions in order to reduce the costs as much as possible.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
1. Encouraging steps have been undertaken so far. First of all, the Inheritance Act has been amended, so that courts must entrust undisputed inheritance cases to notary publics who conduct proceedings and issue inheritance rulings, and the courts only decide on objections by the parties against the public notaries’ rulings.
Amendments to the Enforcement Act brought notary publics into enforcement proceedings, so that they will be able to assume one part of the court’s role.
The Amendments to the Civil Procedure Act and the Courts Act provide that judicial advisors (law school graduates who have passed the Bar Exam) may conduct proceedings, establish facts and prepare draft decisions to be confirmed by the judge in civil disputes where the value of the dispute is up to 5,000 KN (cca EUR 700), or in commercial disputes where the value of the dispute is up to 50,000 KN (EUR 7,000), in ex parte proceedings, enforcement proceedings, etc.
The same possibility exists in appellate proceedings before the appellate court.
3. A monthly review of court workloads is carried out by the immediately higher court, and quarterly reviews are also carried out by the Ministry of Justice, which issues statistical overviews of the work of courts at the end of each year.
The recently adopted amendments to the Courts Act (Article 10) enable the President of the Supreme Court to entrust certain type of cases in which no procedural action has been undertaken, to another court with subject matter jurisdiction, having obtained an opinion from the General Session of the Supreme Court consisting of all the Supreme Court Justices, if the court before which the proceedings were instituted is unable to conduct the proceedings without delay and within a reasonable time, due to its excessive workload.
In addition to this measure, which has only recently been introduced and has not demonstrated its effects in practice yet, there is no other method of redistribution of the workload, except where the parties themselves use the institution of elective jurisdiction in some cases.
In civil disputes against the state, of which there is also a significant number, the court with exclusive territorial jurisdiction is the court of the plaintiff’s permanent residence, which also contributes to the reduction of the workload of the courts in the capital.
4. Chief Judges play a very small role. The funds for the work of courts are determined and allocated to the courts by the Ministry of Justice.
The courts, without special permission from the Ministry of Justice given in each individual case, may not procure equipment for the work of courts or employ the necessary number of employees.
Under the Courts Act, Chief Judges are part of the court administration who are, in a hierarchical sense, subordinate to the Chief Judge of the higher court and to the Minister of Justice who appoints Chief Judges and may dismiss them from that office at any time, although chief judges are judges. If that occurs they remain as judges at their court.
There is no training in management techniques, and this depends on the skill, common sense and self-training of the chief judges.
C. THE QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
1. In courts, regardless of the court or jurisdiction type, monthly, quarterly and annual statistical reports are produced. As well as quantitative, they also include qualitative indicators.
The qualitative indicator is expressed as a percentage of the decisions by each individual judge that have been quashed by the higher court. This percentage is calculated on the basis of the ratio between the number of decisions appealed by the parties and the number of these decisions quashed by the higher court.
The other indicator is the percentage of decisions quashed, which reflects the ratio between the total number of the decisions rendered, including those appealed and not appealed, and the decisions quashed.
This method is used separately for each case type.
This calculation can show not only the quality of the work of each individual judge, but also of each court.
The comparative advantage of this method is its simplicity and that fact that it can be easily checked, while its deficiency is the fact that it relies on an insufficient number of relevant parameters.
As a rule, although unwritten, it is deemed that an average acceptable quality of work is when the number of the decisions quashed does not exceed 25% of the number of the decisions appealed.
2. Quantitative statistical data collection
Statistical data on the quality of the work of the courts and judges are kept and collected:
- in each individual court for each judge;
- in the immediately higher court for each court in its territory and for all judges in that higher court and the courts on its territory;
- in the Supreme Court;
- in the Ministry of Justice for all judges and all courts.
Statistical data on the quantity of work of the judges are taken into consideration since, according to the recently adopted amendments and supplements to the Courts Act, the Chief Judge at the end of each year has to confirm by a ruling whether the judge has fulfilled the expected quantitative results in terms of the number of resolved cases.
Statistical data are one of the parameters by which judges are assessed for promotion but are not the only one and are not decisive.
In the judiciary in the Republic of Croatia there are no regulations or rules to determine how many cases an individual judge should resolve. This “standard” for judges does not exist. There is the customary and well accepted principle of many years that a judge should resolve in a year about the same number of cases as the Ministry of Justice prescribes as a gauge, on the basis of which it determines the number of judges needed in each court. So for example if it is prescribed that for each 180 criminal cases there should be one judge, then it is considered that the judge fulfils the expected results if he/she solves approximately 180 criminal cases.
3. Collected statistical data are used more to establish the situation than for emergency measures. In the long term statistical data show where the problems lie and where and how they should be solved.
So for example the approach is to found new courts, to expand or reduce the existing ones and the possibility is given to transfer judges temporarily with their consent to a court with a greater work load or to transfer cases from an overburdened court to one with a lighter burden.
4. All that has been mentioned above is in the jurisdiction of the courts, the court administration and the Ministry of Justice.
D. ALTERNATIVE DISPUTE RESOLUTION
Bearing in mind the situation in the Republic of Croatia, it is not possible to answer all the questions in the questionnaire, nor to give precise answers to the questions as they are formulated in this part of the questionnaire.
Alternative dispute resolution is still in its early stages in the Republic of Croatia.
In civil cases, the Civil Procedures Act even prescribes that the court is obliged to try to reach a settlement between the parties, but the number of such cases is negligible. In the process of reaching a settlement the judge is authorized to explain to the parties the nature of the dispute and the possible outcome, so the parties can make a proper decision. This kind of settlement before a judge has the character of a court judgment and is binding for the parties who conclude it.
In civil proceedings against the state, the party is obliged before instituting the proceedings to refer to the Public Prosecutor’s Office to reach a settlement in that matter.
There is also the institutional Permanent Arbitration Court within the Chamber of Commerce for disputes between domestic or foreign companies. Decisions by the arbitration court may be challenged before a regular court.
In 2003 the Mediation Act was passed which gives the parties the possibility before or while instituting a dispute of referring to arbitration and electing an arbitrator who will resolve their dispute.
In administrative disputes, an institutional settlement is not possible.
In Croatian criminal proceedings it is necessary to differentiate between regular criminal proceedings for criminal offences for which the Penal Code prescribes a prison sentence of five years or more, or summary proceedings for those criminal offences for which a fine or a prison sentence of up to five years is prescribed.
In summary proceedings it is possible for the public prosecutor to propose the issue of a penal order, which the court accepts and issues. If the accused does not object, it remains in force with the proposed punishment. This is a form of settlement since the accused, by not objecting, accepts the proposal by the public prosecutor in light of the offence he is accused of, the existence of criminal responsibility and the proposed punishment.
In regular criminal proceedings in the phase of investigation, the public prosecutor may propose that the investigating judge impose a punishment, which amounts to no more than one third of the punishment prescribed by law.
The police have the task of gathering evidence and a settlement is not possible in the phase of the proceedings before the police.
The advantage and possibility for alternative dispute resolution is gaining in significance and in order to expand the use of this form of dispute resolution judges, lawyers and large companies are being involved, with the help of foreign donors from the EU and the USA.
E. CASE MANAGMENT
a) in general
1. There is no firm or realistic indicator of the average length of proceedings before the courts. There are data which the Ministry of Justice processes which is termed the “promptness of the courts” expressed in numbers and represents the average length of proceedings in months from the day the proceedings are instituted to the day a decision is made on that case. The indicator of the promptness of the courts is reached on the basis of a mathematical formula, where the total number of cases in one calendar year is taken into account, the number of new cases in that calendar year and the number of resolved cases in that calendar year.
These data are published in the annual report of the Ministry of Justice.
2. Yes to a certain extent.
3. Yes, particularly in civil cases before courts of the first instance, criminal cases where there is a possible prison sentence of up to three years, before misdemeanour judges, and in appeal proceedings for some forms of proceedings (enforcement, inheritance, land registry proceedings, most ex parte proceedings etc.)
b) in civil disputes
All replies are given on the basis of the amendments and supplements to the Civil Procedure Act, which came into force on 1 December 2003
1. According to the latest changes to the Civil Procedure Act following the principles of civil procedure as stated in the Appendix to Recommendation No. R (84)5 the following were adopted:
Principle 1. points 2,3 and 4.
Principle 2. points 2 and 3.
Principle3.- partially. The court is empowered to call for evidence, which has not been introduced by the parties if other interests are at stake, to exclude witnesses which are irrelevant for the case.
Principle 6. Judgment has to be pronounced after concluding the case publicly. Otherwise, it has to be pronounced publicly within a time limit of 15 days. Written judgment has to be posted to the parties in thirty days. Only the president of the court can extend this time limit for another 30 days if the case is complex.
2. By the latest amendments to the Civil Procedure Act (2003) some measures have been taken to speed up the proceedings themselves:
- The plaintiff is obliged to present all the facts in the complaint and present all evidence on which the complaint is based;
- The institution of the obligatory written reply to the complaint has been introduced;
- The defendant is obliged to present all the evidence and all the facts in his or her reply to the complaint;
- The costs of adjournments of hearings due to new evidence shall be borne by the party who proposes the new evidence;
- The court service system has been improved and tightened up;
- It is not permitted to offer new facts and evidence in an appeal;
- The abuse of the procedural rights is prevented by the authority of the court to decide immediately on the motions by the parties without the right of appeal or by the fact that the appeal has no suspensive effect.
(i) Simplified proceedings are possible in small value cases where it is possible to write abbreviated minutes of the hearing, the decision is rendered immediately after the conclusion of the trial, if the plaintiff does not attend this has the effect of the withdrawal of the complaint, and an appeal is not admissible due to the incorrect or incomplete establishment of the facts. A small value dispute is one up to 700 euros (before a municipal court) or up to 7,000 euros before a commercial court.
(ii) It is possible to render a decision without holding a hearing if:
- the defendant does not furnish a reply to the complaint – a default judgment;
- the defendant in his or her reply to the complaint admits the complaint -judgment on the basis of a confession
- the defendant admits to the facts of the complaint - judgment without a hearing being held
(iv) the objection of subject matter or territorial jurisdiction is not admitted if the plaintiff has begun litigation, it is not admissible to raise an objection due to the statute of limitations or setoff for the first time in an appeal
(v) the question is unclear – what does “more flexible rules of evidence” mean?
(vi) in examples of ad ii only a brief form statement of reasons is given;
(vii) admissible and possible;
(viii) in proceedings where the question is disputed as to whether the party wishes to dispose of a request which he or she may not dispose of since it is contrary to lex cogens or to morals, the court may take evidence ex officio on this circumstance.
4.1. Judges have the power to decide summarily on:
-disputes on which an early provisional decision is required (i),
-disputes concerning the recovery of certified uncontested debts ( ii), and
in all other cases under the circumstances described under 3.ii.
4.2. Summary judgments have the force of res judicata only if the judgment is not contested by appeal. In cases of trespassing, labour cases and family cases the court can order that an appeal will not stop the enforcement of the judgment.
4.3. Yes under circumstances under 3.ii.
5. Pursuant to the provisions of the Enforcement Act the creditor may seek enforcement on the basis of credible documents consisting of a bill or a notarised extract from accounting records. On the basis of these documents the court immediately orders enforcement by a ruling, orders the debtor to pay and permits enforcement by freezing the debtor’s bank account or some other form of property (moveable property, salary, shares etc.)
If the debtor objects, a decision is made on the claim in civil proceedings.
6. Time limits in civil proceedings are divided into statutory ones which may not be extended and after whose expiration the party loses some procedural rights. For example in disputes over trespassing, the complaint must be submitted within a month of the actual act of trespassing and after the expiration of that time limit a complaint is no longer permitted.
An appeal against a judgment is always permitted, but within 15 days of the day the judgment is served. When this time limit has expired, the appeal is dismissed.
Another type of time limits are what are known as judicial time limits, which are set by the court for undertaking a specific action in the proceedings and when they expire the party does not lose the right to undertake this action, but has to bear the costs to the other party of the adjournment resulting from this failure. There are also time limits, which are binding on the court itself.
For instance the court is obliged to conclude a labour dispute in the first instance within 6 months, set hearings in cases for the publication of corrections to information within 15 days, the appellate court is obliged in enforcement proceedings to rule on an appeal within one month or in cases dealing with the publication of information within three days etc.
Civil contentious proceedings are in principle oral and all decisions on conduction the proceedings are mainly made orally at the hearing and the parties take notice of them. A written copy of these rulings is only obligatory if the party has the right of appeal against the ruling (e.g. a ruling on the stay of the proceedings, the suspension of the proceedings etc.).
The court is obliged to announce the judgment publicly immediately after the conclusion of the trial or within 15 days of the conclusion of the trial and to send the written judgment with a statement of reasons to the parties within 15 days, which certainly helps to speed up the proceedings.
In any case, all time limits, regardless of the type, help to speed up the proceedings and to keep it under control.
7. Before instituting civil contentious proceedings, during its course and after the rendering of a judgment up to the time it becomes legally effective, the party may move the court to order protective measures. These measures are prescribed by the Enforcement Act.
The court may order protective measures ex officio or at the proposal of the party in any situation where this is necessary to prevent violence or irreparable harm.
Protective measures may be imposed especially in:
- family disputes;
- labour disputes;
- disputes over trespassing;
- disputes over maintenance.
Protective measures range from those freezing someone’s assets, a ban on disposal of real estate, ordering a worker to be returned to employment, ordering maintenance, or ordering some other action etc.
If urgency requires, protective measures may be ordered without hearing the other party, especially in emergency proceedings (e.g. labour, family, trespassing)
8. Yes – in the procedure of the securing of evidence for the court to determine certain facts before the filing of the lawsuit, where there is a real danger that they will not be able to do so later.
9. A first instance judgment is enforceable before it becomes legally effective only if the first instance court so orders and only then in cases of trespassing and labour disputes. In these cases the appeal does not delay and cannot delay enforcement.
10. Regarding Recommendation No.95(5) in Croatia the following principles are followed:
Chapter I, Article 1. a, b, c, and d.
Chapter II Article 2. a, b, and c.
Article 3. c and d.
Article 4. a, c, and e.
Article 5. b, and d,
Chapter III Article 6. a.iii., a.vii.
Chapter IV All principles stated in Article 7.
A system where an appeal would only be admissible if the court gives previous permission is attractive as an idea, but a decision by the court not to permit an appeal could also be subject to control by the appellate proceedings, so it is questionable how far this kind of solution would speed up court proceedings.
11. (i) enforcement of legally effective court decisions and other documents which in terms of their power are equal to court decisions (private documents notarised by a public notary with an enforcement clause) is a problem encountered by our legal system too. Work is about to begin on reform of enforcement legislation in order to improve enforcement proceedings.
It is possible to speed up enforcement proceedings by the following measures:
- transferring these proceedings to the jurisdiction of court advisors and/or public notaries;
- shortening time limits;
- limiting the possibilities of using legal remedies;
- the non-suspensive character of an appeal;
- seizure of property immediately after the enforcement is permitted;
- the foundation of a public warehouse for selling seized moveable property;
- the creation of a centralised register of the parties’ bank accounts;
- the creation of a register of mortgage rights on real estate etc.
In Croatia there are as yet no enforcement agents and so it is not possible to talk about this experience.
(ii) Transparency of information concerning the assets of debtors would definitely be helpful and would improve enforcement proceedings. I hope that this does not need more explanation because it is self-explanatory.
(iii) More effort should be made for a multi-lateral treaty to make the recognition of foreign court decisions automatically possible, as well as domestic ones, with strictly limited exceptions insofar as the foreign judgment is contrary to the constitutional and legal order of the country in which it needs to be recognised and enforced.
c) in criminal cases
1. Regarding Recommendation R(87)18
The principle of discretionary criminal prosecution was implemented in the provisions of Article 175 of the Criminal Procedure Act pursuant to which the public prosecutor can decide to delay the beginning of criminal prosecution if a monetary fine or a prison sentence up to three years is prescribed for the criminal offence, and it is an offence with a lower level of guilt (involuntary, negligence).
The public prosecutor may make this decision with the previous agreement of the victim and the consent of the accused and his or her readiness to fulfil some obligations such as action to repair or restore the damage he or she caused by his criminal offence. The accused may also pay a certain sum of money to be used for the public good, fulfil the obligations of legal maintenance (if he is accused of non-payment of maintenance), undertake treatment for addiction etc.
The victims may submit proposal to institute prosecution when that is prescribed by criminal law for the following criminal offences: Coercion Article 128, Paragraph 2, Penal code), Threat (Article 129, Paragraphs 1 and 2 of the PC), Violating the Privacy of Correspondence and Pieces of Mail (Article 130 Paragraphs 1 and 2 PC), Fraud (Article 200, Paragraphs 1,2, 5 PC), Taking of Another Person’s Moveable Property (Article 221, Paragraph 3, PC), Destruction or Damage of Another Person’s Things (Article 222, Paragraph 1, PC), Preferential Treatment of Creditors (Article 281, PC) etc.
Regarding the question of summary proceedings, out of court settlements and simplified proceedings, see the statements above in relation to summary proceedings. The public prosecutor may, in submitting the charging act, propose the issue of a penal order. The public prosecutor may only do this for offences for which a penalty of up to five years in prison is foreseen, and the public prosecutor may for these offences propose the imposition of a fine, or a suspended sentence of three months in prison.
The court may accept this proposal by the public prosecutor and issue the order, but if the accused objects to this form of order, summary criminal proceedings are conducted.
Criminal proceedings are simplified in that:
- it is possible to merge several criminal proceedings against the same accused;
- the trial is held without the accused if he or she has been heard and if he or she has been informed of the date of the hearing (summary proceedings);
- it is not necessary to draw up a statement of reasons for the judgment if the parties wave their right of appeal and do not ask for a written record of the judgment.
If the accused is in detention the time limit for keeping him or her in detention are prescribed by law. For most criminal offences, the longest time for detention is 6 months from the time of the indictment but it may not be more than 2 years regardless when the indictment was brought.
The judge conducting the proceedings decides on the termination of detention and the defendant and the public prosecutor may at any time propose the termination of detention.
The composition of the court depends of the type of offence:
- a single judge adjudicates in proceedings on criminal offences with up to five years’ imprisonment;
- a professional judge and two lay judges for offences for which a punishment of up to ten years imprisonment is prescribed (but if the parties agree then a single judge may adjudicate);
- a chamber of two professional judges and three lay judges for offences for which a punishment of more than 15 years imprisonment is prescribed.
Lay judges are not professionals.
For decisions on guilt and sentencing their decision must be unanimous
The provisions of the Rules of Court make specialisation possible through the assignment of certain types of cases only to certain judges.
(i) The public prosecutor may halt proceedings in cases where the defendant takes on the obligation to repay damages, return what he or she has taken or work for the common good, and, if the defendant has fulfilled his or her obligations, may wave the prosecution.
(ii) Minor bodily injury in traffic has been decriminalized.
(iii) In proceedings conducted on private charges (only if the victim has instituted them), the parties may always reach a settlement out of court and if the victim states that he or she is withdrawing the complaint the proceedings are terminated.
(iv) Penal orders have been described above under no. 1
(v) The accused is always asked at the beginning of the proceedings about his or her guilt. If he or she pleads guilty and confesses to the offence he or she is accused of, evidence is only heard which is important for sentencing.
(vi) The parties may be summonsed by telephone, telegram, regular mail, by the courier service of the court or a company offering these services and they may be informed orally about the hearing.
(vii) In summary proceedings, if the accused is not sentenced to imprisonment and insofar as the parties do not request a written statement of reasons for the judgment, the judge at the hearing gives an oral statement of reasons for the judgment, which is entered in the minutes.
4. The role of the bench and the authority of a single judge have already been explained.