Abstract
While both Croatia and Slovenia belong to the circle of successor countries of the former Yugoslavia, and share common roots and traditions, developments pertaining to legal reforms since the 1990s proceeded at different speeds and, partly, in different directions. This paper compares developments in the two states, focusing on the change in the role of the supreme courts in the context of civil procedure where the most profound changes in recent times happened in the evolution of the role of the secondary (further, final) appeal on points of law. At different points in time both supreme courts experienced a crisis that resulted in considerable delays and backlogs. Different strategies to control the influx of cases to the highest tribunals were subsequently employed, with different levels of success. While Slovenia, in the reform of civil procedure enacted in May 2008, generally embraced the view that the question of whether a particular issue of law has general significance is quite different from the question of whether the lower court has decided on it incorrectly in the case at hand, Croatia is still struggling with the introduction of filtering mechanisms that would transform the role of the highest court and emphasize its public function and purpose. Both countries, however, are at best only halfway into new approaches and still have a hybrid (mixed) system of secondary appeals.
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Notes
- 1.
- 2.
The notion of revizija in the Croatian and Slovenian languages is difficult to translate. In this text, we will mutatis mutandis refer to ‘further/secondary/final appeal on points of law lodged with the Supreme Court’, but for the sake of brevity, expressions like ‘final review’, ‘secondary appeal’ or ‘revision’ will also be used interchangeably.
- 3.
Originally, the Constitution of Vidovdan (1921) and the Law on Organisation of Courts of 24 September 1924 stipulated that there would be only one Court of Cassation for the whole Yugoslavia, with its seat in Zagreb. Yet, such a singular court was never established.
- 4.
On early developments see Petrak (2013, pp. 224–229).
- 5.
Other supreme courts were the Court of Cassation in Belgrade (with a department in Novi Sad), the Supreme Court in Sarajevo, and the Large Court (Veliki sud, Curia magna) in Podgorica. See Čulinović (1946, pp. 95–96).
- 6.
Petrak (2013, p. 229).
- 7.
Cf. Čepulo (2006, pp. 325–383). Čepulo, however, notes that the development ‘was not linear’ and that the judiciary ‘neither in respect of regulation nor of reality managed to reach the degree of independence as the judiciary in independent European countries of developed legal tradition’ (p. 381).
- 8.
See the Act on Invalidity of Laws and Regulations Enacted before 6 April 1941 and During Enemy Occupation of 23 October 1946. By that law, all pre-war legal rules were declared null and void, and could only be applied exceptionally, as ancillary sources of law.
- 9.
Čulinović (1946, pp. 20–21).
- 10.
Čulinović (1946, pp. 23–24) (quoting Kardelj).
- 11.
One of the examples is the fact that, in spite of the constitutional guarantees, judges in the Kingdom of Yugoslavia never gained permanent appointments, as special legislation on this matter was never enacted (Čulinović 1946, p. 106).
- 12.
See e.g. Art. 230, Yugoslav Constitution of 1974, which also provided that the corresponding representative bodies had to elect judges inter alia in a procedure that had to secure their ‘moral and political appropriateness’ (moralno-politička podobnost).
- 13.
Ibid, p. 192 and 214. See Arts. 63(1) and 57(1) of the Law of 17 June 1946.
- 14.
Consequently, the direct means of control, such as the right of devolution and delegation, ceased to exist.
- 15.
- 16.
Čulinović (1946, p. 214). The Constitution of 1946 defined the role of the supreme courts as ‘assessing the legality of final decisions’ (Art. 123), but also provided that higher courts have the authority to control the lower ones (Art. 116(3)).
- 17.
Art. 1 of the Decision of the Presidium of AVNOJ, No. 1331 of 3 February 1945.
- 18.
Art. 127 of the 1946 Constitution of FNRY.
- 19.
See Art. 146(2) of the 1963 Constitution.
- 20.
Art. 142(1) of the 1963 Constitution.
- 21.
See e.g. Art. 140 of the 1974 Croatian Constitution.
- 22.
- 23.
Cf. Bobek (2009 pp. 33–34).
- 24.
Bobek (2009, p. 44).
- 25.
See Art. 116 of the Croatian Constitution.
- 26.
At least until the Slovenian (2004) and Croatian (2013) entry into the EU.
- 27.
This extraordinary appeal, which can be filed by a public prosecutor, has been retained in a restricted form. It can be filed only in cases where access to the Supreme Court via revision (secondary appeal) is not available to the parties (e.g. matters of enforcement of judgments, non-contentious proceedings, bankruptcy, provisional measures, disputes with a value of claim not exceeding 2000 €). The request for protection of legality can be filed where it is in the interest of safeguarding the uniformity of the case law or development of the law. It should be noted that—unlike in certain European procedural models where the public prosecutor can also submit a special remedy in civil proceedings (e.g. France, Italy, the Netherlands)—the judgment of the Supreme Court following the request for the protection of legality may lead to remanding or reversing the impugned decision, hence affecting the civil rights of individual parties in the case at hand.
- 28.
See Art. 239 of the Code of Civil Procedure (CCP) Amendments (Off. Gaz. 117/2003). In criminal and misdemeanour proceedings, however, the request for the protection of legality was maintained. In 2015, according to the Annual Report of the Chief State Attorney, 62 such requests were launched before the Croatian Supreme Court. In the same year, the Court granted 33 and dismissed five (DORH Report 2015, pp. 126). In administrative proceedings, a similar means of recourse (zahtjev za izvanredno preispitivanje zakonitosti pravomoćne presude i rješenja) is also available to the Chief State Attorney—see Art. 78 of the Law on Administrative Litigation (Off. Gaz. 20/2010, 143/2012, 152/2014). In 2015, 16 such requests were submitted to the Supreme Court against the rulings of the High Administrative Court (DORH Report 2015, pp. 193).
- 29.
So, e.g. the Croatian State Attorney’s office raised a proposal to reintroduce the request for the protection of legality in the working group on the reform of the Code of Civil Procedure in 2015.
- 30.
In Slovenia, where the prosecutorial right to launch a request for the protection of legality was preserved, there are only about 30 such requests per year (there were e.g. 27 in 2008 and 33 in 2013).
- 31.
One limitation related to the prohibition of engagement of representatives who practice law illegally (barrack-room lawyers, nadripisari, Germ. Winkelschreiber). The other was connected to the principle of protection of ‘socially-owned property’ from the Yugoslav socialist constitutions. Namely, in litigation above a certain value (50,000 dinars) ‘organisations of associated labour’ (=state-owned enterprises) had to be represented by legally qualified persons who had passed the state judicial exam (in-house counsel included).
- 32.
The reason for a decade-long delay in Croatia was the battle for the introduction of mandatory representation by private lawyers led by the Bar Association, opposed heavily by the association of corporate (in-house) counsels.
- 33.
See Arts. 86 and 87 of the Slovenian CCP. As in Croatia, the party may lodge a secondary appeal at the Supreme Court without an advocate if the party is legally qualified (a completed state judicial exam is required).
- 34.
Currently, only persons who have passed a state judicial exam may represent legal persons in cases above 50,000 kunas (about 7000 €).
- 35.
See Arts. 89a to 91 of the Croatian CCP, as amended in 2003. Some additional exceptions are provided for in labour law cases.
- 36.
Art. 91a of the Croatian CCP, as amended in 2008 (Off. Gaz. 84/2008).
- 37.
Especially compared to jurisdictions where, as in France, only a small number of specially licensed lawyers (members of the ‘Supreme Court Bar’) may appear before the highest tribunal. In all post-Yugoslav countries, every lawyer, member of the national Bar, may represent the parties (alongside several other categories of persons who have passed the state judicial exam).
- 38.
In Croatia, after the introduction of stricter representation rules before the Supreme Court, there were multiple initiatives submitted by over 25 applicants (including several companies and a political party) questioning the constitutionality of such limitation. The Constitutional Court rejected their arguments—see USRH 4365/2008 of 26 March 2013.
- 39.
See e.g. <www.sodnapraksa.si for Slovenia>; <www.vsrh.hr> (databases Supra and SupraNova, last accessed 12 March 2016).
- 40.
According to the Annual Report of the Croatian Supreme Court, at the end of 2015, the internet database (<http://sudskapraksa.vsrh.hr/supra/>, last accessed 12 March 2016) contained 170, 821 court decisions, out of which 166, 985 were Supreme Court decisions (VSRH Report 2015, p. 113).
- 41.
This was an expression of judicial paternalism, but also of the ideological view that courts (that is: the State) are omnipotent and should be able to find the truth to provide for substantive justice and to affirm ‘socialist legality’ without any hindrances. See e.g. Uzelac (2004, p. 300).
- 42.
Cf. Uzelac (2010, p. 390).
- 43.
Statistical information of the Supreme Court (presentation by Supreme Court President B. Hrvatin at Zagreb Faculty of Law, 2015). See also VSRH Report (2015, p. 110).
- 44.
This is an increase of 73%. See statistical surveys of the Ministry of Justice (2000–2014), web pages of the Supreme Court (<www.vsrh.hr>, last accessed 12 March 2016). The composition is: 28 judges in the civil department, 15 judges in the criminal department, plus the president and vice-president.
- 45.
At present, this number is 31 in five chambers (8 in civil, 3 in commercial, 8 in administrative, 5 in labour and social, and 7 in the criminal department). On the background and reasons for this decrease see more below.
- 46.
One supreme court judge is appointed in Slovenia and Croatia per 50–100 thousand inhabitants. In most European countries, one supreme court judge serves between 200 and 500 thousand people (e.g. 200,000 in France and Italy, 250,000 in Sweden and Norway, over 400,000 in Belgium and the Netherlands). See more in Uzelac (2014b). In addition, the Slovenian judiciary with about 1000 judges and the Croatian judiciary with about 2000 judges hold the top positions in general judges-per-capita European statistics—see CEPEJ Report (2014, pp. 158–166).
- 47.
For instance, in Croatia in 2011 there were 153,415 civil litigations, 49,553 civil appeals and 6229 revisions, meaning that the rate of secondary reviews before the Supreme Court reached 10% of all appeal decisions. See Uzelac (2014a, p. 250).
- 48.
Art. 367(2) of the Slovenian CCP.
- 49.
See various amendments to Art. 382 of the Croatian CCP. Both in Croatia and in Slovenia the thresholds are higher in commercial cases (about 70,000 € in Croatia and 200,000 € in Slovenia).
- 50.
On an excessively formalistic and restrictive approach as to the calculation of the amount in controversy, see e.g. the decision of the Croatian Constitutional Court No. RH U-III-2646/07 of 18 June 2008 and the decision of the Slovenian Constitutional Court No. Up-418/05 of 11 January 2007.
- 51.
So, e.g. in Egić v Croatia, ECHR 32806/09, judgment of 5 June 2014, the European Court of Human Rights found violation of the right of access to the Supreme Court, noting that, owing to the omission by the municipal court to address the issue of the amount in dispute, the applicant, who reasonably believed that she could avail herself of the appeal on points of law, ‘was left in the dark’ as to whether she had the right to make use of this means of recourse (pp. 56–57). See also Vusić v Croatia, ECHR 48101/07, judgment of 1 July 2010, where violation related to legal certainty was found, due to the fact that the Supreme Court twice decided in the same case, once holding it admissible and the second time inadmissible as to the amount in dispute.
- 52.
See Art. 382(2) of the Croatian CCP (as amended in 2003 and 2008). In the 2008 amendments, another example was the possibility of conflicting interpretations of statutory law, but this ground, since ‘too vague and extensive’, was deleted in 2011.
- 53.
Art. 367a of the Slovenian CCP, introduced by amendments in 2008 (Off. Gaz. 45/2008).
- 54.
See Art. 382(2) of the Croatian CCP, effective from 1 December 2003 to 3 January 2007.
- 55.
See Constitutional Court decision U-I-1569/2004, U-I-305/2005, U-I-1677/2004, U-I-320/2005, U-I-1702/2004, U-I-464/2006, U-I-1904/2004, U-I-3351/2006, U-I-2677/2004 of 20 December 2006 (Off. Gaz. 2/2007), p. 11. The Constitutional Court emphasised in particular that, due to ever-increasing limitations for access to the Supreme Court, the Constitutional Court itself was put in the position of playing the constitutional role of securing equality before the law. In doing so, it was flooded with the petitions of thousands of citizens who should have had an option to address the highest court in the national judicial hierarchy. See also Dika (2010, p. 259).
- 56.
Off. Gaz. 84/2008.
- 57.
See new provision in Art. 392b of the Croatian CCP.
- 58.
See Constitutional Court decision U-I-885/2013 of 11 July 2014.
- 59.
Ibid., para. 10.1.
- 60.
Ibid., para. 12.
- 61.
- 62.
See the Slovenian CCP, as amended in 2008, Arts. 367a et seq. The applicant needs only to show that there is no uniform case law or that the impugned judgment departs from the uniform case law or that it raises complex legal issues of general importance where guidance from the Supreme Court would be welcome.
- 63.
See Art. 367c(2) of the Slovenian CCP.
- 64.
Feguš (2009, p. 6).
- 65.
See decisions by courts in the Czech Republic (Judgment of the Constitutional Court of the Czech Republic of 11 February 2004), Poland (judgment of the Polish Constitutional Court of 31 March 2005) and Armenia (Decision of the Armenian Constitutional Court of 9 April 2007). See more in Galič (2014a, pp. 304–305).
- 66.
Decision of the Slovenian Constitutional Court, U-I-302/09, 12 May 2011.
- 67.
Ibid.
- 68.
Ibid. Only once leave to appeal is granted and the applicant then files an appeal on points of law does the procedure in the Supreme Court need to comply with all the requirements concerning access to court and a fair trial, including the obligation of the court to reason its decision on the merits.
- 69.
Ibid.
- 70.
Galič (2014a, pp. 305–306).
- 71.
See n. 43 above and the text above it.
- 72.
According to a lecture by the Supreme Court President on 23 October 2013, the average duration of unresolved Rev (secondary appeal) cases was 845.12 days (or 28 months).
- 73.
Situation on 31 December 2008 (1956 civil and 279 commercial cases).
- 74.
On 1 January 2014, there were 627 civil and 114 commercial unsolved cases on the docket.
- 75.
In 2008: 1250 civil and 240 commercial cases; in 2013: 341 civil and 103 commercial cases.
- 76.
There were 535 motions in 2011; 501 in 2012 and 437 in 2013.
- 77.
The Supreme Court decides in a panel consisting of three judges whether to grant leave to appeal. The judge-rapporteur’s role here is decisive. It is interesting to note that the ratio between leave granted/leave denied varies significantly between individual Supreme Court judges. Whereas certain judges have a nearly 50% acceptance rate, other judges have merely a 25% acceptance rate. The average acceptance rate was 40% in 2012 (excluding cases where a motion was already inadmissible for procedural reasons). The same trend continued in 2013: again, some judges had a very high acceptance rate of 50%, whereas one judge-rapporteur had an acceptance rate of merely 12%. It should be noted that the judge-rapporteur in the leave proceedings retains the same role in the later proceedings on the merits (meaning that he or she will prepare the draft judgment, report the case in the Supreme Court’s session and prepare the text of the final judgment).
- 78.
It may be safely assessed that the Supreme Court in the latest period deals with about 90 revisions where leave was granted, and about 250 revisions which were filed immediately (based on the criterion of the amount in controversy). Out of these 250, about 70 were inadmissible for procedural reasons. Hence, the Supreme Court deals at present on the merits with about 180 secondary appeals (revisions) in which the private purpose of the Supreme Court’s adjudication is in the foreground, and about 90 cases which pursue the public purpose.
- 79.
In comparison, the number of supreme court judges in the civil department of the Croatian Supreme Court rose 50%—from 18 in 2008 to 27 in 2015, but this increase was of little or no avail as the number of received cases was continually above the number of resolved cases.
- 80.
On the paradigm shift see Galič 2014a, Chaps. 2 and 3.
- 81.
The impression of a ‘confused’ system may also be stimulated by the way the supreme courts interpret the (non-binding) examples of ‘important’ issues. In one Croatian case, the Supreme Court held the secondary appeal inadmissible and ‘unimportant’ in spite of the clear inconsistency of case law (the different assessment of similar legal positions of two siblings), because the divergent case law occurred within the same court, moreover within the same chamber of the same court. See VSRH Rev-788/12, 22 May 2012; the Court pointed to other mechanisms of securing the uniform application of the law, such as binding opinions of the court sections (here: civil department), which are another relic of socialist law.
- 82.
One of such issues may be the position of secondary appeal as a remedy that is launched against final and binding judgments. With the rise of the public purpose function, the proceedings of ‘revision’ depend more and more on the discretion of the Supreme Court. However, in the case law of the European Court of Human Rights related to nadzor proceedings in Russia, the ECtHR held that the right to a court in Art. 6(1) ‘would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party’. This principle commands full implementation of judgments that have acquired res iudicata status. This is not the case ‘if a Contracting State’s legal system allowed a judicial decision which had become final and binding to be quashed by a higher court on an application made by a State official’ (Ryabikh v Russia, ECHR 52854/99, 24 July 2003, pp. 55–56). Admittedly, discretionary leave to appeal is granted upon application of a party, but selection is based on public and not individual interests, and therefore essentially lies in the hands of the judge as a state official. This may be the reason to reconsider the status of revizija as an extraordinary means of recourse, or reflect on the effects that Supreme Court judgments may have in the event the review is well founded. So far, from the Strasbourg perspective, because the ECtHR interpreted the post-socialist ‘secondary appeals’ autonomously as regular (ordinary) means of recourse, it could be less of a problem (unless the court, due to narrower and conditional access criteria for private applicants, changes its position). See Yanakiev v Bulgaria, ECHR 40476/98, 10 August 2006. Internally, however, it raises a very important issue of what should be understood as res iudicata from a procedural and (euro-)constitutional viewpoint.
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Uzelac, A., Galič, A. (2017). Changing Faces of Post-socialist Supreme Courts: Croatia and Slovenia Compared. In: van Rhee, C., Fu, Y. (eds) Supreme Courts in Transition in China and the West. Ius Gentium: Comparative Perspectives on Law and Justice, vol 59. Springer, Cham. https://doi.org/10.1007/978-3-319-52344-6_10
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