Croatia

The Constitution requires the president of the Supreme Court to be appointed by the parliament, upon a proposal from the president of the republic. Initially, the Judicial Council announces the public call, gathers the CVs and working programmes of the candidates, and submits the list of candidates – in no order or ranking – to the president. Legislative amendments from February 2022 allow the Judicial Council to review the documentation of submitted candidates. The president asks for the non-binding advice of the general session of the Supreme Court and the Judiciary Committee of the parliament. The president of the Supreme Court is ultimately elected by the parliament. The parliament can reject the president’s choice. While judges are involved in some ways, the political branches have a decisive say in the selection and appointment of the Supreme Court president.

After some blockages, the process of appointing the current Supreme Court president was successfully concluded in October 2021. This experience of blockages led to February 2022 legislative changes, which clarified procedural steps to avoid future deadlocks.

The Council of Europe’s Group of States against Corruption (GRECO) recommended that the Croatian authorities review the procedures of selection, appointment, and renewal of the mandate of the Supreme Court president to increase transparency and minimise the risks of improper political influence. It emphasised that the role of the Council remained limited, as it did not even rank the candidates selected, and called for giving it a more decisive influence to minimise the risks of political influence. It was also a subject of concern that there was no single requirement for the establishment of a predetermined appointment methodology, nor for providing the reasoning for the decisions.

Under Article 79(1) of the Law on Courts, the minister of justice sets the annual “framework criteria for the performance of judges”. These criteria determine the number of decisions judges are individually obliged to hand down during a calendar year. Judges have complained that these criteria overburden them, which results in the prolonged duration of judicial proceedings. In their view, judges who would be on time to meet the set requirement do not have any incentive to do so before the deadline, since by doing so they would only risk being given an additional number of cases to solve by the president of their court.

Croatian judges are also concerned about the executive’s control over the “purse”, i.e., over the material resources the judiciary has at its disposal. Many consider their salaries to be too low, which deters promising lawyers from entering the service, and they also suffer from a lack of administrative, technical, and expert assistance. All of these issues could negatively affect courts’ efficiency and the quality of their decisions in the long-term.

Low salaries for judges (compared to the national average) make working in the justice system less attractive, as has been highlighted by representatives of the judiciary, and threatens the normal functioning of courts. The dissatisfaction has been reflected in an increased number of resignations. Low salaries have also made careers in the judiciary less attractive, leading to the continuous outflow and lack of interest in vacancies.

The salary base of judges was raised slightly through legislative amendments adopted on 28 June 2023. Around the same time, the government agreed to a temporary increase in staff salaries, until a systemic solution can be found. Concerns remain, and further steps will be required to improve the financial position of judges and judicial officers.

Allegations of violations of the obligation of impartiality and the acceptance of improper gifts led to criminal and disciplinary proceedings against judges in 2021. In 2022, criminal proceedings into cases of alleged corruption continued. The Judicial Council concluded disciplinary proceedings initiated earlier, and even dismissed a judge (Darko Krušlin) for the damage to the reputation of the judiciary, in connection with corruption scandal over the trial of the Mamić brothers, ex executives of the Dinamo Zagreb football club. Overall, in 2022, the Council initiated 22 disciplinary proceedings (following 23 in 2021 and 13 in 2020) and imposed 16 sanctions (against 13 in 2021 and one in 2020), including four dismissals, two fines, and nine reprimands.

The Judicial Council also continued performing its control function with regard to the external activities of judges. The law requires judges to request permission for external activities, and they can be subject to disciplinary proceedings for failing to do so. In 2022, the State Judicial Council received 76 requests from judges regarding external activities, 64 of which it approved, while finding that the law already allowed judges to conduct those activities in the remaining cases.

According to the 2023 EU Justice Scoreboard, the backlog of cases and length of proceedings remain among the most considerable in the EU. In 2022, the average length of proceedings in the first instance courts remained among the longest in the EU, but administrative courts of all instances and the second instance civil and criminal courts continued to function efficiently. The Supreme Court saw a significant decrease in the number of pending cases, although the average length of case processing increased. In 2022, the total number of pending cases in the justice system decreased by 11 per cent. At first instance courts, backlogs decreased by 21 per cent in litigious civil and commercial cases, mostly due to a large decrease in incoming cases and a further increase in the number of resolved civil cases, but remained the same in criminal cases.

Civil society organisations (CSOs) have recommended taking all necessary steps to increase the efficiency of the justice system and shorten the length of procedures in Croatian courts, especially at the first-instance level. They have highlighted the legislative change setting maximum duration of proceedings, but pointed out that there is a lot of skepticism among legal experts about the prospects of adequate implementation – actual respect for these deadlines. Also, there are no sanctions for exceeding these deadlines that would serve as an effective deterrent.

Since 2016, the level of perceived judicial independence in Croatia has remained very low, both among the general public and companies. Courts’ ineffective communication with media has certainly not helped with improving perceptions. Most courts have dedicated staff for communicating with the public, but press events to present the regular work of courts and state attorney’s offices are not common. The people’s ombudsperson repeated their recommendation that the Justice Academy should, in cooperation with the media, conduct training of journalists on the work of the judiciary. The ombudsperson stressed that, in addition to courts’ press releases, more structured communication with the media could contribute to the delivery of accurate and complete information to the public.

CSOs have explained that there are two types of legal aid – primary and secondary. Primary legal aid, provided by associations and legal clinics, includes legal advice, drafting submissions, and representation before public law bodies, the European Court of Human Rights (ECtHR), and international organisations, as well as legal aid in out-of-court dispute resolution. A major challenge here is that this type of legal aid is financed on a project-basis and, hence, lacks continuity.

Secondary legal aid includes legal representation by attorneys in legal areas defined by law, exemption from payment of costs of court proceedings and expert testimony, and exemption from payment of court fees. There are a few problems with this type of legal aid: (a) in order to qualify for legal aid, the total monthly income of the applicant and their household members and total value of the applicant’s property should not exceed a set amount; (b) free legal aid can be granted only in specified legal cases, such as proceedings to exercise the right to child support, the right to compensation for victims of criminal acts of violence, and proceedings of beneficiaries of maintenance assistance or alimony to the exercise of their rights from social welfare; and (c) lack of respect of the deadlines to decide on free legal aid in appellate cases after the first-instance decision. The ombudsperson noted that the average time to decide on an appeal is three years, and that this calls into question the purpose of free legal aid, which is equality in access to justice.

CSOs have recommended drafting a new Free Legal Aid Act and ensuring increased resources that would make the institution more accessible to all.

There are no major formal or informal obstacles in this respect. There is, however, one issue that may be potentially problematic when it comes to lower courts referring questions for preliminary rulings to the Court of Justice of the European Union (CJEU).

This issue concerns appeals against a judicial decision to stop proceedings and submit preliminary references to the CJEU. In the Croatian legal system, such an appeal was initially allowed. This led to the following episode: In 2017, a lower court (the County Court in Zagreb) decided to refer questions of the interpretation EU law in a case involving the European Arrest Warrant issued in a high-profile corruption trial against former Prime Minister Ivo Sanader (Order No. K-Us-29/15 of 30 May 2017). On appeal, the Supreme court annulled that order, holding that the answers to the questions of interpretation of EU law were not relevant for the case pending before the referring court, and instructed the court to continue with the proceedings (Decision No. I-Kž-Us-102/17-4 of 19 September 2017). The County Court, however, did not follow or withdraw its reference, but decided again to stay the proceedings (Order No. Kv-I-Us-84/17 (K-Us-50/14) of 19 December 2017). This order was appealed before the Supreme Court, which, despite the academic criticism of its earlier ruling, again annulled the referring court’s decision, for the same reason – the Court’s answer would be irrelevant for the proceedings in question (Decision No. I-Kž-Us-4/2018-4 of 22 May 2018).

Soon afterwards, the Court of Justice answered the preliminary reference of the County Court in Case C-268/17 AY ECLI:EU:C:2018:602. The CJEU never explicitly addressed the Supreme Court’s decision to quash the County Court’s decision to refer but, by admitting the reference, the CJEU confirmed that it was indeed necessary and relevant for the main proceedings – thereby disagreeing with the Supreme Court.

Following this episode, the Croatian legislature amended the relevant provisions of the Law on Criminal Procedure (Article 18(a), paras 1–2) and the Law on Civil Procedure (Article 213, paras 1–3), and, as they currently stand, they do not allow for an appeal against the decision of a national court to stay the proceedings and submit a reference to the CJEU. The Law on Administrative Disputes (Article 45, paras 2–3), however, still enables an appeal in these circumstances. This means that, in the context of the administrative disputes, appellate courts could still erroneously interfere with the discretion of lower courts under Article 267(2) TFEU, which may, in turn, influence the decisions of some of these courts to refer the matter to the CJEU.

Although this may only be a slight possibility, it is still worth mentioning – especially given the indifferent attitude of high courts in Croatia towards EU law.

In Case C-727/21 Udruga KHL Medveščak Zagreb, the Commercial Court of Appeal asked the CJEU whether several provisions of national law were in line with the requirements of independence and impartiality of judges under EU law. The legal provisions in question essentially allowed judges other than those deciding on a case to influence case outcomes. According to one of the provisions – Article 40(2) of the Law on Courts – “legal positions” adopted at plenary meetings of all judges or sections of Croatian high courts bind individual chambers and judges of those courts or sections. According to another provision – Article 177(3) of the Rules of Procedure of the Courts – the decision of a court of second instance is not finalised, i.e., published and delivered to the parties until a judge appointed by the president of that court – the so-called ‘registrations judge’ – confirms it. The registrations judge examines the legal merits of every judgment, with a view towards ensuring the consistency of case law. If they consider a judgment to be based on erroneous interpretation of the law or departs from the earlier holdings of the same court or section of that court, the registrations judge may refer the matter back to the deciding judge or chamber, with comments on how the original judgment should be amended. If the deciding judge or chamber disagrees with the registrations judge, the latter can refer the issue to the meeting of the relevant section of the court, which can then issue binding “legal position” under aforementioned Article 40(2) of the Law on Courts. These meetings of the sections of courts are held behind closed doors and are not governed by national procedural rules, and the parties to the original proceedings have no input to these meetings.