Judicial Reform in Croatia Is The Glass (Half) Full or (Half) Empty ? Prof. Dr. ALAN UZELAC University of Zagreb, Faculty of Law [email_address]

Why judicial reform? BBC and safety for tourists in Croatia The Hague complex Chapter 23

MoJ Anti-corruption campaign

Outline Action plan of the judicial reform strategy Reality or fiction? How to evaluate judicial reforms? Subjective approach: perceptions Objective approach: indicators Examples of subjective and objective indicators Public perception Objective indicators Structural comparison: Legal professions, courts, investments, duration of proceedings Functional evaluation: Judicial processes Can EU accession process help judicial reform? Conclusions: Judicial reform between political illusion and tangible results.

Action plan of the judicial reform strategy

Reality or fiction?

How to evaluate judicial reforms?

Subjective approach: perceptions

Objective approach: indicators

Examples of subjective and objective indicators

Public perception

Objective indicators

Structural comparison: Legal professions, courts, investments, duration of proceedings

Functional evaluation: Judicial processes

Can EU accession process help judicial reform?

Conclusions:

Judicial reform between political illusion and tangible results.

“ Strategy” of judicial reform Croatian way of dealing with unpleasant jobs

History of Action Plans Early reform attempts 1995-2000 reforms announced, wrong direction 2000-2003 attempts of reforms, mainly unsuccessful New way: production of Action Plans on reforms of judiciary 2004: announcement 2005: adopted by the Government 2006: passed by the Parliament 2008: Action Plan revised Achievements?

Early reform attempts

1995-2000

reforms announced, wrong direction

2000-2003

attempts of reforms, mainly unsuccessful

New way: production of Action Plans on reforms of judiciary

2004: announcement

2005: adopted by the Government

2006: passed by the Parliament

2008: Action Plan revised

Achievements?

Strategy? Independence of judiciary appointment, assessment and career management transparent system of promotion Impartiality judicial ethics, anti-corruption measures Professionalism and expertise training of prospective judges by a Judicial Academy Efficiency of the judiciary resolving backlog, cases older than 3 years rationalisation of the court network mediation information technology, ICMS Free legal aid Prison system War crime proceedings

Independence of judiciary

appointment, assessment and career management

transparent system of promotion

Impartiality

judicial ethics, anti-corruption measures

Professionalism and expertise

training of prospective judges by a Judicial Academy

Efficiency of the judiciary

resolving backlog, cases older than 3 years

rationalisation of the court network

mediation

information technology, ICMS

Free legal aid

Prison system

War crime proceedings

How to evaluate reforms? Criteria? Indicators?

Methodologies: two options Objective indicators benchmarks statistical data performance analysis Public perception polls surveys users’ satisfaction interviews views of outside observers

Objective indicators

benchmarks

statistical data

performance analysis

Public perception

polls

surveys

users’ satisfaction

interviews

views of outside observers

Corruption perception index 2004 2005 2006 Judiciary 3,8 Political parties 4 Judiciary 4,4 Political parties 3,6 Judiciary 3,7 Health services 4,3 Parliament 3,6 Parliament 3,6 Economy 4,2 Health services 3,6 Economy 3,5 Parties & Parliament 4,1

WB - BEEPS

Vis-à-vis : Avis on judiciary

EU Progress report for Croatia (XI/200 7 )

Comparing legal professions Structural Comparisons

Objective evaluation of the European justice systems? European Commission for the Efficiency of Justice (CEPEJ) Established Sep 2002 by CoE resolution 12(2002) Operation initiated at the beginning of 2003 Seated in Strasbourg Members: 4 7 CoE Member States Plenary session – Working Groups – Bureau - Secretariat Mandate: To enable evaluation of European justice systems, inter alia by development of qualitative and quantitative indicators & statistical means of evaluation Aim: to assist Member States in improving quality and efficiency of their justice systems

European Commission for the Efficiency of Justice (CEPEJ)

Established Sep 2002 by CoE resolution 12(2002)

Operation initiated at the beginning of 2003

Seated in Strasbourg

Members: 4 7 CoE Member States

Plenary session – Working Groups – Bureau - Secretariat

Mandate:

To enable evaluation of European justice systems, inter alia by development of qualitative and quantitative indicators & statistical means of evaluation

Aim: to assist Member States in improving quality and efficiency of their justice systems

Evaluation of the European justice systems First evaluation 2001 – 2003 period (data for the year 2002) Second evaluation period 2004 – 2006 (data for the year 2004) Third evaluation period 200 6 – 200 8 (data for the year 200 6 )

First evaluation

2001 – 2003 period (data for the year 2002)

Second evaluation

period 2004 – 2006 (data for the year 2004)

Third evaluation

period 200 6 – 200 8 (data for the year 200 6 )

Lawyers in Europe (per 100.000 inh.) Source: CEPEJ Report, 2008. (2006 data)

Number of lawyers: trends 1992-2009 Year Lawyers % Interns % 1992 1221 100 380 100 1994 1782 146 483 127 1997 2100 172 550 145 2004 2493 204 965 254 2008 3427 280 1620 426

Enforcement agents and notaries

Number of judges in Europe

Legal professions in Europe and Croatia

Judicial organization - court locations (general competence courts and specialized courts) per 100.000 inhabitants (data 2004 )

Results of the Twinning Project (Finnland and Austria) COUNTY COURTS MUNICIPAL COURTS COMMERCIAL COURTS MISDEMEANOUR COURT LEGEND: COUNTY COURTS MUNICIPAL COURTS MISDEMEANOUR COURTS COMMERCIAL COURTS ALL UNOPENED COURTS 126 266

LEGEND:

COUNTY COURTS

MUNICIPAL COURTS

MISDEMEANOUR COURTS

COMMERCIAL COURTS

ALL UNOPENED COURTS

Structural conclusions for Croatia Underdeveloped legal landscape: no bailiffs; poor use of judicial employees confusion regarding the role of “court counsels” surplus of judges Structural deficiencies number of courts too high unbalanced distribution of cases and judges judges are performing many non-judicial tasks: enforcement, registers, internal administration some legal professionals are charged with the tasks that are not their core occupation (notaries)

Underdeveloped legal landscape:

no bailiffs;

poor use of judicial employees

confusion regarding the role of “court counsels”

surplus of judges

Structural deficiencies

number of courts too high

unbalanced distribution of cases and judges

judges are performing many non-judicial tasks: enforcement, registers, internal administration

some legal professionals are charged with the tasks that are not their core occupation (notaries)

Judicial process - comparisons … a much harder task …

Expenses of European states for their justice systems € / # inhabitants (100k) data 2002. Court budget + Legal aid expenses Austria 71,30 France 32,99 Romania 5,48 Finland 51,03 Hungary 27,00 Ukraine 2,32 Croatia 30,43 Italy 46,76 Netherlands 53,07

Court backlogs

Structure of cases 2000 to 2008

Stimulating peaceful resolution of disputes by consent? Type of judgment: full hearing: 80 % claim admitted: 6 % default: 14 % Type of judgment: full hearing: 92,7 % claim admitted: 3,3 % default: 4,0 % 2007. Litigations in MC Judgment Settlement Else 62% 2% 36% Commercial litigations Judgment Settlement Else 50,8% 3,6% 45,6%

Type of judgment:

full hearing: 80 %

claim admitted: 6 %

default: 14 %

Type of judgment:

full hearing: 92,7 %

claim admitted: 3,3 %

default: 4,0 %

Can you see some change? 2001.-2007. Year Litigations resolved by: Judgment % Court settlement % Else % 2001. 2002. 2003. 2004. 2005. 2006. 2007. 73154 67805 76407 103589 87762 79612 79446 62,6 58,2 64,1 65,1 57,0 61,4 62,2 3327 2857 2565 3528 3527 2814 2742 2,8 2,5 2,2 2,0 2,3 2,2 2,1 40312 45779 40135 52376 62623 47284 45619 34,5 39,3 33,7 32,9 40,7 36,5 35,7 Year Judgment based on A full hearing % Admittance % Default % 2001. 2002. 2003. 2004. 2005. 2006. 2007. 55603 51832 60180 75620 62806 61309 63927 76,0 76,4 78,8 73,0 71,6 77,0 80,5 7132 6985 6720 13474 13496 8115 4945 9,7 10,3 8,8 13,0 15,4 10,2 6,2 10419 8988 9507 14495 11460 10188 10574 14,2 13,3 12,4 14,0 13,1 12,8 13,3

Reform as a task in European accession? Can EU accession process resolve the problem?

European justice systems and the EU

In spite of an urgent social need, the judicial reform does not seem to produce adequate results. EU accession process has facilitated reforms while there was sufficient time; in the last period, it had a negative impact, due to the political need to produce impression of results. The powerful corporative lobbies of legal professionals has effectively slowed down the process and blurred its aims. Only objective and neutral monitoring of the progress of judicial reform can be a guarantee for the continuing reform progress, but… … the scientific judicial studies are more hated than ever by those responsible for the reform strategies! Conclusions

In spite of an urgent social need, the judicial reform does not seem to produce adequate results.

EU accession process has facilitated reforms while there was sufficient time; in the last period, it had a negative impact, due to the political need to produce impression of results.

The powerful corporative lobbies of legal professionals has effectively slowed down the process and blurred its aims.

Only objective and neutral monitoring of the progress of judicial reform can be a guarantee for the continuing reform progress, but…

… the scientific judicial studies are more hated than ever by those responsible for the reform strategies!

Thank you for your attention! Judicial Reform is in a Bad Need for Social Scientists! © uzelac@post.harvard.edu