Croatia: Omnipotent Judges as the Cause of Procedural Inefficiency and Impotence

Abstract

The chapter elaborates the origins and history of civil procedure in Croatia since the second half of the nineteenth century (both before and after Croatia became an independent country). After an historical introduction, the author describes the current procedural structures in civil procedure, paying special attention to the distribution of powers between the judge and the parties. Self-understanding of the national judiciary and legal scholars, which regard civil procedure to be based on adversarial principles, is contrasted with the still strong inquisitorial powers that come to surface when analysing procedural routines and practices. The final part is devoted to recent reforms in Croatian civil procedure and to the attempts to stimulate mediation and other methods of alternative dispute resolution. Ambitious reformist plans did find their reflection in various legislative projects, but the practical impact and success of those reforms is still questionable.

Appendices Appendix 1: Facts and Figures Relevant for the Powers of the Judge and the Parties in Civil Litigation

C roatia

Year of Reference: 2011

Part I: General Data on the National Civil Justice System

• 1. Inhabitants, GDP and average gross annual salary

  Number of inhabitants	4,290,61236
  Per capita GDP (gross domestic product)	€10,39437
  Average gross annual salary	€12,64638

• 2. Total annual budget allocated to all courts   €225,955,724³⁸

• 3. Does the budget of the courts include the following items? ³⁹

  	Yes	Amount
  Annual public budget allocated to salaries	✓	€147,758,459
  Annual public budget allocated to computerisation	✓	€13,294,887
  Annual public budget allocated to court buildings	✓	€13,814,864
  Annual public budget allocated to training and education	✓	€1,650,201
  Annual public budget allocated to legal aid41	Partly	Approx. €530,000
  Other	✓	Budget for justice expenses
  		€32,551,399

• 4. Is the budget allocated to the public prosecution included in the court budget?

• □ Yes

• ☒ No

• (a) If yes, give the amount of the annual public budget allocated to the prosecution services

• Legal Aid (Access to Justice)

• 5. Annual number of legal aid cases and annual public budget allocated to legal aid

  	Number	Amount
  Civil cases	N/A	N/A
  Other than civil cases	N/A	N/A
  Total of legal aid cases	3,26742	Approx. €9,50043

• Organisation of the court system and the public prosecution

• 6. Judges, non-judge staff and Rechtspfleger

  	Total number	Sitting in civil cases44
  Professional judges (full time equivalent and permanent posts)	Total Number: 1,88345	N/A (except for misdemeanour courts, administrative and commercial courts; other courts and judges are not specialized and deal both with civil and criminal cases)
  	(1,924 in 2011)46
  	Components:
  	Municipal Courts 868
  	Misdemeanour Courts 424
  	County Courts 379
  	Commercial Courts 114
  	High Commercial Court 28
  	Administrative Court 32
  	Supreme Court 38
  Professional judges sitting in courts on an occasional basis and paid as such	None	None
  Non-professional judges (including lay-judges) who are not remunerated but who can possibly receive a defrayal of costs	judges-jurors – about 4,776 are listed but they act only occasionally	None
  Non-judge staff working in the courts (full time equivalent and permanent posts) – misdemeanour courts not included.	484 court counsel	N/A
  	156 interns
  	5,211 others
  Rechtspfleger	202	20247

• The performance and workload of the courts

• 7. Total number of civil cases in the courts (litigious and non-litigious): 1,076,155⁴⁷

  Municipal		County		Administrative
  Litigious	153,415	Civil appeals	73,359	Adm. Suits	13,276
  Inheritance	12,748			Other	244
  Enforcement	171,209	Commercial
  Non-contentious	108,998	Litigious	27,560
  Land registry	473,774	Enforcement	18,691
  TOTAL Munic.	920,144	Bankruptcy	4,879
  		Com. appeals	9,002

• 8. Litigious civil cases and administrative law cases in the courts

  		Litigious civil cases in general	Civil cases by category (e.g. small claims, family, etc.)
  Total number of first-instance cases49	Pending cases on 1 January of the year of reference (2009)	183,975	N/A	N/A	N/A
  	Pending cases on 31 December of the year of reference	175,906	N/A	N/A	N/A
  	Incoming cases	120,455	N/A	N/A	N/A
  	Decisions on the merits	66,328	N/A	N/A	N/A
  Average length of first-instance proceedings50		Official data not available.
  		According to an estimate, the average length at the Municipal Court in Zagreb in 2000 was 29.2 months (2.43 year).
  		Source: NCSC Report.

1.1 Appendix 2: Data on Civil Cases in a Selected Court or Courts to Be Answered by a Judge or Judges of That Court

Municipal Court in Varaždin, 2006⁵⁰

• 1. What types of civil cases does your court decide? Please include a brief definition of the types of cases

Type of cases

Criminal Cases:

Deciding on criminal proceedings of authorised prosecutors on whether the accused is guilty of the criminal act or not. In connection to that, procedures and decisions on security measures for the appearance of the accused at the main hearing and on the revocation of conditional sentences, as well giving opinions or making proposals on extraordinary legal remedies.

Civil Cases:

• 1. Disputes between physical entities, and between physical and legal entities in connection to damage compensation, rights in rem, labour law and family law;

• 2. Non-contentious proceedings regarding boundary disputes concerning plots of land, cancellation of joint ownership, settlement of co-ownership relations, securing evidence, etc.

Enforcement Cases:

Cases in which certain obligations are executed based on the enforcement/execution of authentic documents which the enforcement debtors did not comply with out of their own free will within the set time frame.

• 2. What is the volume of cases and their proportion to the caseload that your court decides on an annual basis? Reference year 2006

  	Caseload of the court
  Common case categories	Cases pending on 01-01-2006	Incoming cases	Decisions	Pending cases on 31-12-2006	Percentage of cases pending for over 3 years
  Civil law cases (total number)	2112	12117	12180	2049	7.05 %
  1. Small claims	26	158	161	23	13.04 %
  2. Contract	31	15	19	27	18.51 %
  3. Tort (esp. car accidents, medical liability, liability of other professionals)	226	92	132	186	15.05 %
  4. Inheritance	18	13	17	14
  5. Labour	155	177	186	146	1.36 %
  6. Litigious employment dismissal	47	70	79	38	2.63 %
  7. Land registry	51	9,228	9,055	224	7.14 %
  8. Enforcement of judgments and other enforceable titles	1,501	2,098	2,332	1,267	6.78 %
  9. Divorce	28	161	98	91	0.15 %
  10. Child custody	1	60	52	9	–
  11. Actions for support and maintenance	28	45	49	24	–

• 3. Do you consider some of the types of cases as complex cases? If yes, please indicate which cases are regarded as complex, in terms of time and efforts needed.

No.

• 4. Do you consider some of the types of cases as urgent cases? If yes, please indicate which cases are regarded as urgent, and how this does affect the time of processing.

Small cases, labour cases (especially litigious employment dismissal cases), family cases (especially when children are concerned).

• 5. Do you have information on the average or median duration of particular types of civil cases? If yes, please provide information on average/median duration of these cases.

No average/median, only percentage of cases decided within a given period.

• 6. Are there targets in respect of the time needed to process each type of case in your court? If yes, please define how these targets are established (e.g. minimum and maximum time; average or mean time; percentage of cases completed within a certain period of time, etc.).

In family cases, there are legislative targets, but they are mostly ignored (e.g. Art. 265 Family Act: first hearing must take place within 15 days from submission of the statement of claim; Art. 266: appeals have to be decided and decisions dispatched within 60 days from the time of lodging the appeal).

• 7. Do you discuss the timetable and the expected duration of the proceedings with the parties and other participants in the proceedings? If yes, please give examples.

No.

• 8. Do you monitor cases that are considered to last excessively long? If yes, please explain which cases are considered to be excessively lengthy (e.g. cases pending more than 3/4/5 years), what their proportion is in your caseload, and which measures have been introduced for speeding up these cases.

Cases pending over three years are considered urgent, as they are categorized as ‘old’ cases. They are being monitored by the Supreme Court. For figures, see table below.

• 9. Do you monitor the duration of the proceedings in the following terms? If yes, please provide data. If you have a different way of monitoring, please give information on the categories used.

Common case categories	Applicable	Percentage cases decided within a period of:
	Yes	Average length in days	<1 month	>1 month and <6 months	>6 months and <1 year	>1 year and <2 year	>2 year and <3 year	>3 year
Civil law cases (total number)	□x	N/A	29.89 %	18.57 %	17.42 %	19.98 %	9.84 %	4.27 %
1. Commercial litigious and regular litigious civil claims	□x	N/A	19.25 %	32.29 %	23.60 %	22.36 %	1.86 %	0.62 %
2. Contract	□x	N/A		15.78 %	42.10 %	36.84 %		5.26 %
3. Tort (esp. car accidents, medical liability, liability of other professionals)	□x	N/A	10.60 %	27.27 %	24.24 %	12.12 %	9.09 %	16.66 %
4. Inheritance	□x	N/A		23.52 %	47.05 %	17.64 %	5.88 %	5.88 %
5. Labour	□x	N/A	10.22 %	23.12 %	37.63 %	22.04 %	4.83 %	2.15 %
6. Enforcement of judgments and other enforceable titles	□x	N/A	33.66 %	14.15 %	14.58 %	21.61 %	11.75 %	4.24 %
7. Litigious divorce	□x	N/A	31.96 %	45.36 %	23.71 %
8. Child custody	□x	N/A	35.84 %	58.49 %	5.66 %
9. Actions for support and maintenance	□x	N/A	24.48 %	46.94 %	18.36 %	4.08 %	2.04 %	4.08 %
25. Criminal law cases (total numbers)	□x	N/A	27.64 %	27.23 %	13.82 %	15.45 %	5.69 %	10.16 %

• 10. Do you collect and analyse information on the duration of the particular stages in the proceedings? If yes, give some examples regarding the duration of particular stages of the proceedings. Ideally, give us information on the ideal/average/mean duration of the preparatory stage (from the commencement to the first oral hearing on the merits), the trial stage (from the first oral hearing to closure of the proceedings) and the post-hearing stage (from the closure of the proceedings to judgment). If you cannot give data, but have another way of monitoring, please give information in terms of the categories used.

The data collected only deals with first instance proceedings, starting with the day of receiving the writ or act initiating the proceedings, and ending with the day of dispatching the written court decision (first instance judgment).