Are Croatian courts able to apply European legislation?
Will Croatian courts be able to apply treaties, European legislation and principles established by the European Court?
“Judicial independence is one of the prerequisites for the rule of law and valuation of judicial authority. Under socialism, judges enjoyed neither independence, nor renown, as already indicated, their re-election depended upon various political bodies. In practice, their ‘political and moral suitability’ was examined.
Decisions of importance were not made by courts, but by the leadership of the Communist Party.
The relevance of their work was minimised also by the fact that private ownership was limited and most companies were state-owned.
According to Croatian civil and procedural law expert Alan Uzelac, an outside observer would hardly notice the difference between the positions of judges and other civil servants in the state administration.
According to Rodin, the legal and political cultures of old EU member states are traditionally based on ‘democratic pluralism’, whereas those of the ‘post-communist member states’ still possess features of their communist heritage – authoritarian acceptance of one ‘ultimate truth’.
The culture of the latter states is reflected in the role of courts. The Croatian legal system does not find judges very relevant for the development of law.
Croatian judges do not have ‘creative powers’ when resolving cases.
The willingness of judges to directly apply the constitution and ratified international treaties is a good indicator of the status of courts within a constitutional order.
With respect to the Croatian legal order, it happens very rarely at ordinary courts, which base their judgments mostly on laws and bye-laws.
The strictly linguistic interpretation of legal provisions is a wide-spread occurrence in the Croatian legal practice. When making decisions, judges rely on legal logic and do not take the political background into consideration, probably just to avoid the connection with the communist past.
Justification of judgments is derived from the text of a respective provision and not from its meaning and purpose.
The resolution of the described issue would be significantly facilitated by establishment of a Judicial Academy, priorities of which should include vocational training of judges and state prosecutor deputies.
No comprehensive empirical survey on the legal consciousness has been conducted in the Republic of Croatia since it became independent.
Instead, there was a recent survey of the level of familiarity and acceptance of EU institutions and law by Croatian citizens. According to the results, Croatian citizens possess an average knowledge of European institutions and treat them neutrally.”
Contemporary legal challenges: EU – Hungary – Croatia
Tímea Drinóczi, Mirela Župan, Zsombor Ercsey, Mario Vinković (eds.)
Pécs – Osijek;2012
S. Rodin, ‘Diskurs i autoritativnost u europskoj i postkomunističkoj pravnoj
kulturi’ [Discourse and Autoritarianism in European and Post-communist Legal
Culture], XLII Politička misao (2005) p. 60.
76 Rodin, loc. cit. n. 75, at pp. 42 and 47.
– Legal system- communist heritage – authoritarian acceptance of one ‘ultimate truth’
1.1. LEGISLATORS OFTEN PASS REGULATIONS WHICH ARE CONTRARY TO THE JUDICIAL PRACTICE
77 In Rodin’s opinion, the Croatian judicial practice has no effect on the legislators.
Unlike other European countries that support codification of judicial practice by
legislators, Croatia does the opposite, the legislators often pass regulations which are
contrary to the judicial practice.
Moreover, these regulations consequently delete the judicial practice.
See S. Rodin, ‘Interpretativna nadležnost Vrhovnog suda RH po novom Zakonu o sudovima’ [Interpretative Jurisdiction of the Supreme Court of the
Republic of Croatia Under the New Law on Courts], authorized presentation at the
10th panel of the Faculty of Law of the University of Zagreb and Zagreb Lawyers
Club, Zagreb, 19th April 2006.
NOST_VS_RH_PO_NOVOM_ZAKONU-31-01-06.pdf, at p. 11.
See also T. Ćapeta, ‘Interpretativni učinak europskog prava u članstvu i prije članstva u EU’[Interpretative Effect of European law in and before EU Membership], 56 Zbornik PFZ (2006) pp. 1443-1494; T. Ćapeta, ‘Court, Legal Culture and EU Enlargement’,
1 Croatian yearbook of European law & policy (2005) pp. 23-53.
2. CROATIA, Extrajudicial enforcement
ENFORCEMENT SITUATION IN CROATIA: LEGISLATIVE SITUATION. ENFORCEMENT
Several changes have been made since 1996, when the Enforcement Act was adopted.
One of the most relevant, in 2005, gathered a significant set of novelties and new institutes, as well as the consideration of pubic notaries as new procedural body.
Since 2005, public notaries have been included in the enforcement system as a competent authority for determining enforcement on the basis of the authentic instrument (bills, public documents and excerpts from business books).
Municipal courts are responsible (only) for non-monetary enforcement, while FINA enforces directly the monetary titles.
Enforcement conducted by the employer or the Croatian Pension Insurance Institute (CPII) based on a previously signed approval on salary or pension attachment;
Pursuing the Enforcement Act and Act of Enforcement over Monetary Assets, FINA has to enforce monetary assets, not only from judicial decisions or judgments but also from cases of non-judicial enforcement titles.
Funds Enforcement System
Pursuant to the Funds Enforcement Act, Fina enforces business entities’ and individuals’ funds in all accounts and time-deposit funds in all banks according to debtor’s personal identification number, without their consent. The enforcement of this Act is a very important and comprehensive project that changes the former enforcement methods and its main objectives are to regulate the debtor-creditor relations, increase collection efficiency and protect creditors.
More than 75% of the enforcement cases are handled by FINA, with about 800 employees involved.
The enforcement procedure was enhanced by introducing a legal institute of extrajudicial enforcement, according to which the creditor was able to request from the financial institution (banks) the enforcement on the basis of a final and enforceable decision on enforcement issued by the notary public.
The most significant novelty is simplicity in performing enforcement being a result of exclusion of the courts from the procedure of determining the enforcement of the final decisions which had been previously adopted by the same court.
After entering into force of the Enforcement Act 2012, there is no need for creditors to start new enforcement procedure, but merely to provide FINA with a request for direct payment along with the final verdict.
From 1 January 2011 on, this system was additionally improved and the Financial Agency (“FINA”) as a state owned legal entity in the field of financial mediation providing financial and administrative services, commenced performing enforcement on all the debtors’ bank accounts that were registered in the Unified Register of Accounts.
Since the law is amended so often, there is some legal uncertainty and possible lack of uniformity of court practices.
1. Execution Act, 2017.
Execution Act, 2017. (Ovršni zakon) NN 112/12, 25/13, 93/14, 55/16, 73/17 from 03.08.2017.
2. Execution Act, 2005.
Cartels on the Croatian market
The reasons of business failure in Croatia
BUSINESS FAILURE CROATIA
Glavna državna arbitraža pri Vladi FNRJ [The Main State Arbitration Tribunal at the Government of the FPR Yugoslavia] was the highest court for commercial matters in socialist Yugoslavia for a period of several years after 1953
(competent, inter alia, to enact trade usages)
This was assisted by the fact that, until the enactment of the Law on Arbitration in 2001,it also had a legal monopoly on domestic arb
itration. Therefore, other arbitration institutes in Croatia did not exist, a
lthough the opportunity to establish arbitral institutions as entities of private law that was opened by the Law on Arbitration brought about increased interest in establishing new dispute resolution facilities.
For further understanding: Arbitration Law by Alan Uzelac
TEMPORARY ENFORCEMENT OF JUDGEMENTS.
Notwithstanding this, if the contested decision is finally reversed (totally or partially), the creditor will have to return to the defendant, in full or in part, the amount or the thing (or performance) received, and pay the judicial costs as well as any compensation due for the damage caused by the Temporary Enforcement.
-Certificate of enforcement issued by the court or a notary public.
-Document with an enforcement clause issued by the court or a notary public.
Almost 2/3 of all enforcement cases are ordered by notaries public.
In Hungary, a system of gradual enforcement on debtor’s assets is applied.
VHT lays down the amount and the movables which are exempt from enforcement, and also defines the percentage of the salary which can be seized.
Withdrawal of certificate of enforcement
Cancellation of enforcement clause
According to Section 211 of VHT, if the court/ notary public has issued a certificate of enforcement or an enforcement clause in violation of the law, such certificate of enforcement must be withdrawn or such enforcement clause must be cancelled.
Monitoring of the activities of notaries public
The activities of notaries public are supervised in two ways:
1.Supervision by the president of the county court
2:Supervision by the presidency of the territorial notarial chamber
5. DIFFERENCES SPAIN AND HUNGARY AND CROATIAThe three systems are quite different, as the Hungarian has three enforcement authorities: notaries, bailiffs and the court, Croatia the court, notary public, FINA, while in Spain there is just one enforcement authority: the Court.
These system differences lead to different needs of monitoring.
In Spain statistical data are sent quarterly from court while in Hungary every month Notaries and Courts send their data.
Bailiffs collect the data monthly but send them quarterly. In Spain statistical data have consequences of inspection. In Croatia there is no monitoring.
Inspection authorities and proceeding and monitoring are not the same.
6. ITALIA, Outline of the Italian System of Enforcement Proceedings in Civil Matters
Making it clear as judicial processes!
The Italian Code of Civil Procedure (Codice di Procedura Civile) deals with the enforcement proceedings in its third book (Articles 434–632), making it clear that such procedures are considered by the law not as administrative proceedings, but as judicial processes, enjoying the same dignity and prerogatives as the ordinary declaratory proceedings.
MORE INTL INFO:
Notarial institution on European level
EU Regulation, 650/2012
Comparative study on the enforcement of judgments and authentic instruments in Europe
Procedures for enforcing a judgment
When a Court is involved in solving a dispute, there are two steps that must be ensured at the end of the process. First, the Court must hand down a judgment and then the judgment needs to be enforced in practice.