Twinning Fiche Support to More Efficient, Effective and Modern Operation and Functioning of the Administrative Court of the Republic of Croatia

Republic of Croatia

Ministry of Justice

Programme: CARDS 2004

Partner country: Croatia

Area of Cooperation: Justice and Home Affairs

CARDS TWINNING PROJECT FICHE

Support to More Efficient, Effective and Modern Operation and Functioning of the Administrative Court of the Republic of Croatia

Project budget: € 850.000

1. Basic Information

1.1Twinning Number:HR04IBJH09

1.2Title:Support to More Efficient, Effective and Modern Operation and Functioning

of the Administrative Court of the Republic of Croatia

1.3 Location: Ministry of Justice, Republic of Croatia

2. Objectives

2.1 Overall Objective

The overall objective of the project is to support the process of modernisation of an efficient, transparent and independent judicial system in Croatia.

2.2Project Purpose

The project purpose is to support and enhance the operation and functioning of the Administrative Court.

The specific objectives of the project are:

  • Improved implementation of administrative legislation and enforcement of Administrative Court’s decisions by concerned administrative bodies; Draft of the the new Law on Administrative Disputes
  • Enhanced capacity of the Administrative Court;
  • Improved court and case management (computerised and manually) system.

2.3. Accession Partnership (AP) and National Plan for the Integration in the European Union (NPIEU) priority

Following national achievements related to the implementation of the Copenhagen criteria and the political conditions set by the Stabilization and Association Agreement (SAA), the European Commission (EU) gave a positive Opinion on the Croatian candidacy for EU membership in June 2004 (see Opinion provides a detailed overview and assessment of Croatia’s ability to meet the political and the economic membership criteria, as well as Croatia’s ability to adopt and implement the acquis communautaire.

Accession Partnership

Along with the Avis, the EC proposed a draft of a European Partnershipfor Croatia (see ) based on the provisions of the European Council (EU) no. 533/2004, as well as the Accession Partnership which updates the current Partnership in order to identify renewed priorities for further work, on the basis of the findings of 2005 Progress Report on Croatia’s preparations for further integration with the European Union.

Croatia needs to develop and implement a comprehensive strategy for judicial reform in consultation with interested bodies. Furthermore, Croatia should take measures to ensure proper and full execution of court rulings (European Partnership, page 6).

Accession Partnership (6), Regulation (EC) No 533/2004 indicated that the follow up of the Accession Partnerships will be ensured within the framework of the mechanisms established under the Stabilisation and Association Process.

On 3 October 2005, the Member States started negotiations with Croatia on its accession to the European Union. The Commission therefore deemed it appropriate to adopt an Accession Partnership; which updates the previous Partnership. The Commission has proposed to modify accordingly Council Regulation 533/2004, the legal basis of the present Decision. In anticipation of the adoption of that proposal, the Commission has in parallel drafted the text of the present proposal to the new situation.

This renewed Partnership lists short- and medium-term priorities for the country’s preparations for further integration with the European Union. The country is expected to respond to the Accession Partnership by preparing a plan with a timetable and specific measures in terms of how it intends to address the Accession Partnership’s priorities. The progress in implementing the priorities will be monitored regularly by the Commission, through the Progress Reports and through other structures set up under the Stabilisation and Association Process.

National Plan for the Integration in the European Union (NPIEU)

The National Programme for the Integration of the Republic of Croatia into the EU -2006(NPIEU) is the fourth annual program of the Croatian Government which contains activities to be undertaken on its way towards EU integration. On the basis of the EU Partnership the NPIEU aims at showing the way Croatia is going to, in particular with regard to the full implementation of the SAA, AP; further harmonization of Croatian legislation, implementation of economic reforms, strengthening of the relevant institutions (administrative and institutional capacity building) important for Croatian integration into the EU. The NPIEU gives the current sectorial overview, with planned activities to be undertaken in the forthcoming year, but also projections for 2007 and 2008. Special attention is being given to the standardization of the court forms and documents, court case and integrated case management systems, as well as the human resources development.)

Strategy for the reform of public administrationthrough the on-going CARDS 2003 project “Support to the Public administration and civil service reform”is going to be in close connection with CARDS 2004. project. As a result of the CARDS 2003 project a new Law on General Administrative Procedures is going to be drafted. It will have impact on the organization of Administrative Court, andon the rules that Administrative bodies and Administrative court have to enforce.After the LGAP is adopted, a corresponding Law on Administrative Disputes needs to be drafted (within this CARDS 2004) which will regulate jurisdiction (tasks and functions) of an Administrative court and has to include basic provisions on the future structure of the administrative court system in general (issues like one or more than one court, one or two instances, etc) and some basics of internal organization of a court. After the Law on Administrative Disputes is adopted, the implementation of the new administrative court system can be undertaken as a final step of the reform. Bearing in mind its’ importance and complexity the Implementation of the new Law on Administrative Disputes will require a separate project.

3. Description

3.1.Background and justification

The judiciary continues to suffer from a large backlog of cases and serious organizational problems including lack of equipment, training and qualified staff, all resulting in excessive length of court proceedings. A strategy on the reform of the judicial system, adopted in late 2002, has so far not resulted in a reduction of the backlog of some 1.6 million cases filed at Croatian Courts.

The judiciary is affected by several problems including (a) insufficient training of judges and court personnel, (b) insufficient implementation of the newly adopted procedural codes, (c) inefficiency of the courts in carry out judicial work resulting in a large backlog of cases (d) poor information technology, and (e) the judiciary has responsibilities that are normally administrative rather than judicial decisions. The poor performance of the judiciary led to the lost of confidence from the public and the business community. The main factors that undermine the judiciary have implication also for the rule of law, which is a key element in any well-functioning democracy. Inefficient law enforcement undermines order in society and has a profound effect on the socio-economic well-being of the state, respect for human rights, and personal security. A comprehensive reform of the judiciary and transitional solutions for the short-term management of the situation is a fundamental condition for the establishment of the rule of law and a prerequisite for European integration.

In the Republic of Croatia, regular and specialized courts perform the court duties. Regular courts include Municipal Courts,Country Courtsand the Supreme Court of the Republic of Croatia. Specialized courts include Misdemeanour Courts, Commercial Courts, High Misdemeanour Court of the Republic of the Croatia, High Commercial Court of the Republic of Croatia and Administrative Court of the Republic of Croatia. The highest instance court is the Supreme Court. Other regular and specialized courts, according to the appropriate competence of certain legal fields, can be established pursuant to the Law.

The Administrative Court of the Republic of Croatia (hereinafter referred to as Administrative Court) is a state court and also a court instance in the control of final single administrative decisions. This means that one can challenge the legality of the final single administrative decision by bringing an action against it before the Administrative Court. The particularity of the Administrative Court, in comparison with the civil and criminal law lies in the fact that a state authority is the defending party in the process, and that, by respecting the verdicts of the Administrative Court, administrative bodies can contribute to the effectiveness of the administrative process and the administrative judiciary. Namely, the verdicts of the administrative court are binding for administrative bodies, as well as for the bodies with public authority. Therefore, the Administrative Court contributes directly to the promotion of legality, legal security and the rule of law.

The Administrative Court of the Republic of Croatia has been systematically harmonising case law over a number of years by the selection of key decisions and by publishing decisions on the web site of that court and in the form of a written collection of court decisions. The Court has been included in the CARDS programme for the introduction of IT into the court, which comprises the publication of the complete case law of the court on the court’s web site. The IT introduction project and the publication of complete case law is planned for early 2007.

When analysing the status of the Croatian General Administrative procedures Law became obvious that the old Law on General Administrative Procedures is obsolete. Changes of the system of administrative procedures would include changes on Enforcement of Administrative Decisions that would have an impact also on the judiciary. The new Law on General Administrative Procedures will include a new and more effective system of legal remedies against administrative actions as the final phase of the administrative procedures. Before an action may be brought before Administrative Court, the legality and expediency of the administrative act should be examined in such an administrative proceeding. The new Law on General Administrative Procedures will define the concept “administrative matter”, with the consequence that the scope of jurisdiction of the Administrative Court would be more clearly determined. All these changes in the area of public administration will have direct impact of future tasks and functions of the Administrative Court. Therefore, new Law on Administrative Disputes should be adopted and this law would finally regulate in detail tasks and functions of the Administrative Court.

It is questionable whether the present court structure, with one single Administrative Court, guarantees a sufficient judicial capacity to control the decisions taken by the public administrative bodies. Another problem according to ECHR lies in fact that Administrative Courtis not a court of full jurisdiction as there is reservation to the convention Article 6.This must be considered as a serious problem particularly for the future. Taking into account the very nature of EU legislation the present court structure can be considered as an obstacle to an effective implementation and a correct application of the acquis. The introduction of separate administrative courts on a first instance level and an Administrative Appellate Court could be one solution to this problem.The establishment of separate administrative courts that would conduct administrative litigation willeffect furtherspecialization of judges and a uniform court practice and thus enhance the confidence in the justice system.

There are other ongoing projects on particular topics like competition, asylum and telecom. Disputes based on Administrative acts regulating these matters in individual cases are under Administrative court jurisdiction. According to the recommendations of mentioned projects, two levels based organization of Administrative court would implicate more effective dispute settlements.

The Administrative Court is staffed with 33 judges and 29 court advisors, who work in panels of three or five members, depending on the type of cases and legal procedure applied.

The backlog of handling cases is reduced in the previous period. The score runs as follows:

  • January 1st 2005 - backlog :41850 cases

- influx of cases during 2005 : 13410

- cases solved during 2005 : 15994

  • January 1st 2006 – backlog : 39266cases
  • January 1st 2007 - backlog : 40530 cases

- influx of cases during 2006: 15250

- cases solved during 2006: 14465

To achieve such a goal, apart from very competent staff, a good technical support is needed.

That is primarily needed to establish an efficient and transparent system, which is based on following:

  • Standardized court case management procedure
  • Standardized court forms (i.e. standardization of text processing and information security).
  • No overlapping of activities. Special attention has to be given to unnecessary duplicating of data and texts (manually and computerized).
  • Efficient control of the court’s decisions execution
  • Delivering IT education of implemented system for Administrative court employees.

The first two phases of continuous European Commission support to the Croatian judiciary reform process are implemented through CARDS 2002 and 2003 projects, where support is provided to ensure more efficient operation of the Ministry of Justice and selected municipal and county courts. The project represents a continuation of the projects approved under CARDS 2002 and 2003 programmes that did not include the Administrative Court as project beneficiary.

3.2Linked activities (other international and national initiatives)

  • OBNOVA 1999 - "Judiciary and Law Faculties". The project purpose was to improve website of the Supreme Court of the RC, to develop a Case Publication System containing decisions of the Supreme Court of the RC, to make it available to 6 pilot courts and Law Faculties. The project was successfully implemented. The project is linked to the web site component of the current proposal.
  • TEMPUS 2001/2002 - "European Space of Justice" - The project beneficiary is the Croatian Centre for Professional Training of Judges and Other Judicial Officials. The project is linked to the education component of the current project proposal. The project is under centralised implementation system managed by the European Commission.
  • CARDS 2001 - Project "Public Administration Reform" which aims at strengthening and modernising the current civil service regime through improved legislation and procedures; improving organisation, functioning and coherence of civil central civil service management system as well as building capacity for delivery of training programmes for civil servants on continuous basis.
  • CARDS 2001 - "Support to the Centre for Professional Training of Judges and Other Judicial Officials". The project is linked to the education component of the current project proposal. All the training activities foreseen under the project will be closely coordinated with the training programme developed under CARDS 2001 in order to avoid any duplication.
  • CARDS 2002 - "Support to a More Efficient, Effective and Modern Operation of the Croatian Court System". The project is linked to the court and case management component of the current project proposal.
  • CARDS 2003 - "Ongoing Support to a More Efficient, Effective and Modern Operation of the Croatian Court System". The project is linked to the court and case management component of the current project proposal, and its implementation will follow CARDS 2002 "Support to a More Efficient, Effective and Modern Operation of the Croatian Court System".
  • REGIONAL CARDS 2001 - "Regional Justice and Police Training". The project is linked to the training of the court and police employees and improving mutual co-operation thus enhancing their efficiency.
  • REGIONAL CARDS 2003 - "Development of independent, reliable and functioning judicial systems and enhancing of international judicial cooperation". The Project is linked to the court and case management component of the current project proposal, and its implementation will follow abovementioned CARDS 2002
  • On-going CARDS 2003 “Support to the Public administration and civil service reform”. The Project is linked to the legislative component and capacity building component of the current project proposal. The implementation of the Project will prepare ground for Public administration reform.

3.3 Results:

The Twinning Fiche project must produce the following results:

  1. Improved implementation of administrative legislation and enforcement of Administrative Court’s decisions by concerned administrative bodies; Draftinga new Law on Administrative Dispute
  1. Enhanced capacity of theAdministrative Court; (Prepared organisational platform of

Administrative court for implementing new law)

  1. Training procedures developed, judges and advisors qualified to undertake new legal

procedures (to conduct a debate etc.)

  1. Improved court and case management (computerised and manually) system.

3.4 Activities:

Component I: Improved implementation of administrative legislation and enforcement of Administrative Court’s decisions by involved administrative bodies

  1. Review and analysis of the existing national legislation concerning administrative

procedures;(New law or Draft Law on Administrative procedure prepared through

CARDS 2003)

  1. Prepare for drafting the new Law on Administrative Disputes
  1. Making recommendationsto the new Law on Administrative Disputes
  1. Drafting the new Law on Administrative Disputes
  1. Defining steps for implementation of the national legislation by the involved

administrative bodies;

  1. Make recommendations how to improve the implementation of national

legislation by involved administrative bodies (assessment of the impact of the new Law

on Administrative procedures on the jurisdiction of the Administrative court);

  1. Make recommendation for changes of organisation and jurisdiction of Administrative court with jurisdiction of first instance Administrative court and the new role of the appellate Administrative court.

The activities 4 (modernisation of legislation administrative bodies) and 5 (enforcement of the Administrative Court’s decisions) must be complement with the CARDS 2001 and 2003 Public Administration Reform. This project CARDS 2004 would get from CARDS 2003 “Support to the Public administration and civil service reform”in terms of reports, draft legislation etc.

Component II: Capacity building of the Administrative Court

  1. Functional organisational review of the Administrative Court regarding future changes in the general Administrative Procedure Law;
  1. Improve organization of the Administrative court with particular emphasis on:
  • access to the relevant literature and case law in accordance with EU member states best practices;
  • the normative workload and responsibilities of judges and other court personnel;
  • management information about the workload and the backlog of the organisation;
  • laws and procedures regulating the court management system
  1. Improvement of working methods and a management strategy to reduce the backlog and to improve the organization of the Administrative Court such as
  • Improvement of working methods between the Administrative court and administrative bodies with particular emphasis on
  • Document handling
  • Properly and timely cases delivery from the Ministries to the Administrative court
  1. Development of a consultation structure between the Administrative court and

administrative bodies. Within this structure attention must be given to subjects as: